GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE
1600 DEFENSE PENTAGONWASHINGTON , D .C . 20301-1600

GENERAL COUNSEL

May 31, 2016

The changes described in the attachment are hereby promulgated pursuant to Department of
Defense Directive 2311.0lE, DoD Law of War Program (May 9, 2006), Department of Defense
Directive 5145.01, General Counsel of the Department of Defense (GC DoD) (Dec. 2, 3013),
and 10 U.S.C. § 140(b) (2012).
The Department of Defense Law of War Manual (June 2015 , updated May 2016) incorporates
the changes described in the attachment. The original online version of this Manual (June 2015)
should no longer be used.

Robert S. Taylor
ActingAttachment - Description of Changes Promulgated on May 31, 2016

DEPARTMENT OF DEFENSE LAW OF WAR MANUAL
Description of Changes Promulgated on May 31, 2016
1. Minor changes to the discussion of the principle of proportionality, principally in § 2.4.
a. Revised § 2.4.1.1 to be more precise and to be consistent in style with other partsof the manual.
b. Revised the last sentence of the first paragraph of § 2.4.1.2 to match the language
used in the cross-referenced § 5.12.
c. Revised the title of § 2.4.2 to be more specific in describing its content.
d. Revised the second paragraph of § 2.4.2 to clarify that the principle ofproportionality understood in its broadest sense is reflected in obligations to takefeasible precautions, including when conducting attacks.
e. Revised the title of § 5.12 to be more specific to avoid potential confusion withthe discussion of the broader principle of proportionality. Revised thecorresponding cross-references to the section title in the footnotes of:i. § 1.11.1.2 (footnote 194)ii. § 2.4.1.2 (footnote 70), § 2.4.2 (footnote 73)
iii. § 3.5.1 (footnote 85)iv. § 4.8.2 (footnote 198)v. § 5.3.2 (footnote 18), § 5.5.1 (footnote 65), § 5.5.2 (footnote 67), § 5.7.1.2(footnote 136), § 5.12.5 (footnote 325), § 5.18.5.1 (footnote 517)
vi. § 6.5.9.3 (footnote 106), § 6.7.1 (footnote 149), § 6.7.4 (footnote 160), §6.12.5.2 (footnote 291), § 6.14.2.1 (footnote 366), § 6.14.3 (footnote 371),§ 6.18 (footnote 412)
vii. § 13.5.2.1 (footnote 95)
viii. § 14.8.3.3 (footnote 128)ix. § 16.5.1 (footnote 46), § 16.5.1.1 (footnote 49)
x. § 17.7 (footnote 113)
2. Minor revisions to the discussion of the principle of honor in § 2.6.
a. Added “military” before “forces” or replaced “combatants” with “military forces”
to clarify that the principle of honor helps distinguish military forces fromterrorist groups and other unlawful combatants. Made these revisions in:i. the first line of § 2.6
ii. the title of § 2.6.3
iii. the first sentence of § 2.6.3
iv. the first sentence of § 2.6.3.1
v. the title of § 2.6.3.2,
vi. the first sentence of § 2.6.3.2
b. Revised the first paragraph of § 2.6.1 to explain that the principle of honor
remains important as a core value of the U.S. military and helps strengthen
implementation of the law of war.
c. Revised the second paragraph of § 2.6.1 to help clarify that the principle of honor
as used in the manual does not refer to a particular code found in history, butinstead draws from warriors’ codes from a variety of cultures and time periods.
3. Substantial revisions to the discussion of journalists in § 4.24.

a. Added references to DoD and U.S. Government policy recognizing theimportance of the role of journalists in armed conflict.
b. Reorganized and revised the section to emphasize the protection of journalists ascivilians and to clarify that a journalist would only be considered a combatant on
an exceptional basis when that person had acquired such status.
c. Added more sources, including relevant U.N. Security Council Resolutions, DoD
policies, and examples of relevant DoD or other practice.
d. Added discussion of, and reference to, DoD policies relating to interactions withthe press to avoid any misimpression that the manual would revise such DoD
policies.
e. Revised the section to focus on the contexts most relevant to DoD practitioners(e.g., added an example from DoD practice of ensuring that media access tomilitary operations is consistent with law of war obligations, such as theobligation to protect detainees against public curiosity).
f. Revised the cross-reference from § 4.24.2 to § 4.24.1 in:i. § 5.9.3.2 (footnote 241)ii. § 19.20.1.4 (footnote 209)
4. Changes for stylistic consistency.
a. Changed the citation to DoD Directive 2311.01E in the Preface to be moreconsistent with citations elsewhere in the manual.
b. Italicized “proportionality” in both instances in the last paragraph of § 2.4.2.
c. Changed “land mines” to “landmines” in § 6.12.13.
d. Changed “antipersonnel” to “anti-personnel” in §§ 6.12.13 and 6.12.14.
e. Capitalized “is” in the title of § 5.12.3.
5. Typographical and other administrative errors.
a. Added the long-form citation for Rogers, Law on the Battlefield, to the list of
abbreviations.
b. Changed “Australian Royal Air Force” to “Royal Australian Air Force” in the
Preface.
c. Formatted footnote numbers 58 and 59 to be superscript in § 2.3.1.1.
d. Changed “in way” to “in a way” in § 2.4.
e. Added “to” after “the Party” in § 4.26.2.2.
f. Deleted “the” from the quote from U.N. General Assembly Resolution 2675 citedin § 5.3.3 (footnote 27) and § 5.3.3.1 (footnote 35).
g. Added “Part” to the title of § 5.9.3.2. Revised the corresponding cross-references
to the section title in the footnotes of:i. § 4.23.1 (footnote 465), § 4.24.1 (footnote 476)ii. § 5.8.3.2 (footnote 204)h. Changed “civilians workers” to “civilian workers” in § 5.12.3.2.
i. Changed “the safety of the civilian populations” to “the safety of the civilian
population” in § 5.14.
j. Deleted “emphasis added” from the citation in footnote 85 in § 6.5.4.5 because
the text does not contain modifications for emphasis.
6. Punctuation and Spacing.

a. Removed “Widow/Orphan control” from the paragraph formatting of the entire
document to ensure that footnote text would always be on the same page as thefootnote reference number in the main text.
b. Moved a comma in the first citation in footnote 25 in § 1.3.2.2 for consistency
with the other citation forms for this source.
c. Removed an extra carriage return.
i. § 2.3.1.1 (after section title)ii. § 4.5.2.1 (footnote 102)d. Deleted an extra space after punctuation and before the footnote number.
i. § 4.20.4 (footnotes 432, 434)
ii. § 5.3.3.3 (footnote 44)iii. § 6.5.1 (footnote 44), § 6.20.3.1 (footnote 456)
iv. § 9.22.1 (footnote 495)v. § 11.18.5.2 (footnotes 324, 325)
vi. § 12.4.2.1 (footnote 42), § 12.8.5 (footnote 140)vii. § 15.1.5 (footnote 19), § 15.14.1 (footnote 276)
viii. § 19.7.1 (footnote 78)
e. “Hague IV Reg” was corrected to “Hague IV Reg.”.
i. § 5.11 (footnote 279), § 5.14.4 (footnote 353)
ii. § 19.8.2.1 (footnote 99)
f. Corrected footnotes that ended in a semi-colon so that they would end in a period.
i. § 6.6.3.3 (footnote 139)ii. § 7.12.2.7 (footnote 319)
iii. § 13.10.2.3 (footnote 160)

GENERAL COUNSEL OF THE DEPARTMEN T OF DEFENSE
1 600 DEF ENSE PENTAGONWASHINGTON, DC 2030 1- 1600

GEN ERA L COUNS EL.

December 13, 2016

The changes described in the attachment are hereby promulgated pu rsuant to Department of
Defense Directive 23 11.01 E, DoD Law of War Program (May 9, 2006), Department of Defense
Directive 5 145 .0 1, General Counsel ofthe Department of Defense (GC DoD) (Dec. 2. 20 13),and 10 U.S.C. § 140(b) (20 12).
The Department of De fense Law of War Manual (June 20 15, Updated December 20 16)
incorporates the changes descri bed in the attachment. Previous versions of th is Manual (J une
20 15) and (June 20 15, Updated May 20 16) should no longer be used.

Attachmen t
Description of Changes Promul gated on December

0DEPARTMENT OF DEFENSE LAW OF WAR MANUAL
Description of Changes Promulgated on December 13, 2016
1. Substantial revisions to the discussion of the principle of proportionality and otherchanges to Chapter V.
a. Significant revisions to §§ 5.11 and 5.12 and a new § 5.10 that provides an
overview and context for applying §§ 5.11 and 5.12.
i. In particular, the new § 5.10:
1. Clarifies how the general principle of proportionality relates to themore specific rules prohibiting attacks expected to cause excessive
incidental harm and requiring the taking of feasible precautions.
2. Clarifies the scope of the principle of proportionality by:a. discussing how the principle of proportionality does notcreate duties intended to reduce the risk of harm to military
objectives; andb. adding language clarifying how the principle ofproportionality applies to military personnel and facilities
that may not be made the object of attack, such as military
medical personnel and the military wounded and sick.
3. Discusses how the principle of proportionality is implemented
through the chain of command. The discussion addresses:a. the responsibility of commanders in implementing theprinciple of proportionality;b. the need for competent authority;c. the subjective aspects of the decisions and judgments
required by the principle of proportionality;d. understanding the authorities of subordinates whencommanders provide subordinates substantial discretion in
the tactics of an attack, especially in relation to canceling or
suspending such an attack; ande. the duty not to comply with clearly illegal orders and theprinciple of proportionality.
4. Discusses how the principle of proportionality has been
implemented through military procedures.
5. Discusses how time constraints affect the implementation of theprinciple of proportionality.
6. Clarifies the relationship between the prohibition on attacks
expected to cause excessive harm and the obligation to takefeasible precautions.
ii. Revisions to § 5.11.
1. Revises the title to include precautions in “planning” as well as“conducting” attacks.
2. Adds language to the chapeau of § 5.11 to highlight the need toconsider § 5.11 in light of the information in § 5.10.
3. Adds a bulleted list to the chapeau of § 5.11 to provide an
overview of the section.
Page 1 of 9

4. Reorders the examples of precautions and includes new discussionof three precautions: (1) assessing the risks to civilians, (2)canceling or suspending attacks based on new information raisingconcerns of expected civilian casualties, and (3) selecting military
objectives.
5. In § 5.11.1, adds discussion of the different types of assessments ofrisks to civilians that may be taken, including (1) general
assessments, (2) pre-strike assessments, and (3) after-action
assessments and investigations. In the footnotes, cites Executive
Order 13732, United States Policy on Pre- and Post-Strike
Measures To Address Civilian Casualties in U.S. Operations
Involving the Use of Force, and recent DoD statements andinformation, to provide examples of this practice.
6. In § 5.11.2, revises and supplements the discussion of identifying
zones in which military objectives are more likely to be present orcivilians are more likely to be absent. In the footnotes, cites recent
DoD statements and other historical examples of this practice.
7. In § 5.11.3, adds recent examples in the footnotes of DoD practicein adjusting the timing of an attack.
8. In § 5.11.4, adds discussion of the precaution of deciding to cancel
or suspend an attack based on new information raising concerns of
expected civilian casualties or authorizing subordinates to do so, inorder to reduce the risk of harm to civilians and civilian objects. In
the footnotes, adds recent examples of DoD practice of cancellingor suspending an attack to reduce the risk of harm to civilians.
9. In § 5.11.5, revises the discussion of providing warnings to make it
clear that warnings to facilitate the protection of the civilian
population may be given so that civilians and the authorities incontrol of the civilian population can take measures for their own
protection. Restructures the discussion of the examples ofproviding warnings and, in the footnotes, supplements theexamples of providing warnings, including examples of more
recent DoD practice.
10. In § 5.11.6, revises the discussion of “weaponeering” for clarity
and adds an example of recent DoD practice in a footnote.
11. In § 5.11.7, adds discussion of the precaution of choosing aparticular military objective for attack when it may be expected tocause the least danger to civilian lives and to civilian objects, whena commander may have a choice among several military objectives
for achieving a particular military advantage; identifies the types ofcircumstances when exercising this choice would be necessary.
Clarifies that whether Article 57(3) of AP I is consistent withcustomary law would depend upon how AP I parties interpret their
obligation.
iii. Revisions to § 5.12.

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1. Adds language to the chapeau of § 5.12 to highlight the need toconsider § 5.12 in light of the information in § 5.10.
2. Adds discussion of prioritizing human life over civilian objects,
and prioritizing cultural property over other types of civilian
objects.
3. Elaborates upon the discussion of concrete and direct militaryadvantage to be gained, including discussion of considering theadvantage from the attack as a whole – in the operational andstrategic context.
4. Adds discussion of the need to make a holistic, “totality of thecircumstances,” judgment in determining whether civilian
casualties are expected to be excessive, including discussions of(1) the military concept of economy of force, (2) the relationshipbetween the requirement to take feasible precautions and therequirement to refrain from conducting attacks when civilian
casualties are expected to be excessive, (3) civilian workers who
support military operations in or on military objectives, and (4)enemy use of human shields.
b. Revisions to the discussion in § 5.1 about the implementation of law of war
obligations to harmonize this discussion with the additional discussion in § 5.10
about the implementation of the principle of proportionality, including the
responsibility of commanders.
i. Adds language and cross-references in the second paragraph of § 5.1 forclarity and precision.
ii. In § 5.1.2, changes “law of war rules in the conduct of hostilities” to “lawof war rules for the conduct of hostilities” in the first sentence forgrammatical reasons. Adds a footnote to this sentence with crossreferences to the Chapter I discussion of rules of engagement and the
Chapter XVIII discussion of implementation of law of war obligations
through domestic procedures.
iii. Adds subsection headings in § 5.1.2.
iv. In § 5.1.2.1, revises the first sentence for clarity and precision. Adds
footnote to this sentence with a reference to Executive Order 13732,
United States Policy on Pre- and Post-Strike Measures To Address
Civilian Casualties in U.S. Operations Involving the Use of Force.
Further in this discussion, adds a footnote referencing a speech by theState Department Legal Adviser in April 2016. Clarifies the relationshipbetween violations of policy standards and violations of the law of war,
which is a point that is similarly addressed in § 18.7.2.3.
v. Revises the title of what is now § 5.1.2.2 as well as the first sentence that
follows to be more specific and to track the language that is used in§ 18.3.1.1.
1. Places most of this discussion in § 18.3.1.1 rather than in § 5.1.2.2
because this discussion is generally applicable to theimplementation of law of war obligations.

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2. Adds a sentence with another example in § 5.1.2.2 for further
clarity, which draws upon the new discussion in § 5.10.2. Adds afootnote to this sentence with a cross-reference to § 5.10.2.
c. Revisions to what is now § 5.2 (previously § 5.3).
i. In the chapeau of § 5.2, adds an “and” between the items in the bulleted
list.
ii. In § 5.2.1, adds an example at the end of the section to help clarify what
was meant by what was previously the last sentence in the section.
iii. In § 5.2.2, revises the second bullet to match more closely the language inthe cross-referenced § 5.12.
iv. In § 5.2.3.1, clarifies how the manual addresses different terms such as“feasible,” “reasonable,” and “practical” precautions. Adds footnotes tosupport the discussion. Adds a paragraph to clarify how the manualinterprets the obligation to take “all feasible” precautions or therequirement that “everything feasible” be done.
v. In § 5.2.3.2, clarifies in the bulleted list that money is merely a resource
like other resources, such as time. Also, revises some of the language
after the bulleted list for clarity, including clarifying the example in lightof the warning requirement in relation to protected military medical
facilities, and adds footnotes to support the following discussion. In thelast paragraph of the section, adds a footnote to the first clause with sourcethat supports the point and elaborates upon it.
vi. Adds § 5.2.3.3 to help clarify the extent to which precautions are legallyrequired or are policy decisions.
d. Revisions to what is now § 5.4 (previously § 5.5).
i. Revises the third bullet in the list in § 5.4.2 to correspond to the updated
language in § 5.11.
ii. In § 5.4.3, adds “against that target” to the end of the second sentence forclarity.
iii. In § 5.4.3.1, changes “exceed” to “impose greater restrictions than” forclarity and precision.
iv. In § 5.4.3.2, changes “its” to “AP I” in two places in the last paragraph forclarity.
v. In § 5.4.4, changes “may” to “might” in the second sentence of the firstparagraph to clarify that the sentence is a statement of fact rather than astatement of what is legally permitted. Adds a sentence to the end of theparagraph and provides a footnote with two sources as support for that
sentence to help clarify what is meant by the preceding sentence.
vi. In § 5.4.6.1, revises the last sentence to account for warning requirementswith respect to other protected units, vessels, and facilities, such asprotected military medical units and facilities, and adds a cross-referencein the footnote to the relevant section in § 5.11.5.1.
e. Revisions to what is now § 5.6 (previously § 5.7).
i. In § 5.6.1.2, changes “a proportionality analysis” to “applying theprinciple of proportionality” for precision and clarity. Changes “resulting”
to “that is expected to result” in order to convey that the assessment will
Page 4 of 9

be undertaken before the attack. Changes “destruction of” to “attack on”
to clarify that harm resulting from attacks that do not destroy the object
would be considered.
ii. In § 5.6.5, adds “capturing, or neutralizing” to the second part of thedefinition of military objective for objects, in order to improve accuracy.
In the second to last sentence of the section, revises the language to clarify
that the reference to the “proportionality rule” is meant as a reference tothe obligation related to whether an attack is expected to cause excessive
harm to civilians.
iii. In § 5.6.6, capitalizes several of the words in the section title.
iv. In § 5.6.6.2, adds to an existing footnote reference to a speech by the State
Department Legal Adviser in April 2016.
v. In § 5.6.7.3, adds a citation to the Eritrea Ethiopia Claims Commission ina footnote. In the fifth paragraph, changes “broader than only” to “notlimited to” and “the enemy’s” to “enemy forces’” for precision and clarity.
f. In § 5.13.1, changes the reference to “distinction and proportionality rules” to“principles of distinction and proportionality” for clarity.
g. In § 5.14, clarifies the location of the referenced discussion by changing “[a]sdiscussed above” to “[a]s discussed in § 5.2.3.2 (What Precautions Are Feasible)”and deletes the phrase “, including operational considerations” for simplicity.
Adds a footnote and cross reference to the last sentence in the last paragraph of §5.14.1.
h. Revisions to § 5.16.
i. In § 5.16.1, adds “otherwise” to the second to the last sentence in thesection to clarify that participation in hostilities is a form of assumption ofrisk, and revises the last sentence in the section to make it consistent with§ 5.12.3.3.
ii. In § 5.16.4, updates the title to be more general. Adds a new paragraph toaccount for revisions to § 5.12.3.4.
iii. Adds a new section (§ 5.16.5) to clarify that language about“responsibility” for harm to human shields is a different, but related, issue
from the prohibition on attacks expected to cause excessive incidental
harm. Adds footnotes with sources to support the main text.
i. In § 5.18.6, changes “more broadly” to “even if the property does not constitutecultural property” to make it clear that pillage of any property is prohibited.
2. Conforming edits to ensure consistent presentation and discussion of the principle ofproportionality.
a. Changes the “rule of proportionality” to the “principle of proportionality” in thesecond paragraph, first sentence of § 1.11.1.2.
b. Chapter II discussion of the principle of proportionality.
i. Revises footnote 68 in the second sentence of § 2.4 to delete the existingsource and instead cross-reference § 5.12.3.1, as the source that waspreviously cited in that footnote and other relevant sources are provided in
the cross-referenced section.
ii. Revises language in the third sentence in the first paragraph of § 2.4.1.2
from “proportionality rule” to “principle of proportionality” and adds a
Page 5 of 9

footnote with a cross-reference to the new § 5.10. Shifts from discussing
the proportionality rule in the last sentence in this paragraph to discussing
the proportionality principle, including a reference to the obligation to takeprecautions. Omits a specific reference to combatants in the samesentence. Adjusts footnotes accordingly.
c. Chapter III discussion of the difference between jus ad bellum and jus in bello
proportionality.
i. Clarifies in the second paragraph of § 3.5.1 that the broader principle ofproportionality in jus in bello is being discussed. Adds a specificreference to the obligation to take feasible precautions and revises thecharacterization of the prohibition against attacks expected to cause
excessive incidental harm to match more closely the language in § 5.12.
Adds a footnote at the end of the paragraph cross-referencing § 5.10.1.1.
Adjusts footnotes accordingly.
d. Chapter IV discussion of classes of persons.
i. Adjusts the examples of obligations of combatants in the conduct ofhostilities in § 4.4.1 to correspond to the discussion of the principles of
distinction and proportionality in the new § 5.5 and § 5.10. Adjusts
footnotes accordingly.
ii. Revises language in § 4.15.2 from “must accept the risk” to “accept
certain risks” for clarity and accuracy.
iii. Adds the word “deliberate” before the word “proximity” in the first
sentence of §4.15.2.3 to emphasize that the proximity of those authorized
to accompany the armed forces to military operations is deliberate.
Revises the example in the second sentence of that section to be more
specific for clarity. Adds a cross-reference at the end of that sentence to§ 14.4.2. Revises the third sentence of that section to clarify theantecedent of “they” in light of the change to the second sentence. Adjusts
footnotes accordingly.
e. Chapter VII discussion relating to the risk of incidental harm.
i. Revises the discussion in § 7.3.3.1 for precision. Adds two sentences tothe end of the section about the acceptance of risk by combatants who arewounded, sick, or shipwrecked on the battlefield, as well as their statusunder the law of war. Adjusts footnotes accordingly.
ii. Revises the language in § 7.8.2.1 to make the connection to assumption of
the risk clearer, and in the next sentence explains how the principle ofproportionality applies to the attacker in situations involving military
medical and religious personnel. Adjusts footnotes accordingly.
iii. Adds the word “military” in § 7.10.1.1 to make clear the scope of thesection. Revises the last sentence and adds an additional sentence to makethe connection to assumption of the risk clearer and to explain how the
principle of proportionality applies to the attacker in situations involving
military medical units and facilities. Adjusts footnotes accordingly.
iv. Adds the word “military” in § 7.10.1.3 to make clear the scope of thesection.

Page 6 of 9

f.

g.

h.

i.

v. Adds a sentence to the end of § 7.12.2.5 explaining how the principle ofproportionality applies to the attacker in situations involving hospital ships
and coastal rescue craft. Adjusts footnotes accordingly.
Chapter XIV discussion of selection of weapons in conducting attacks from theair against ground military objectives.
i. Revises the third paragraph of § 14.9.2 for consistency in describing thegeneral obligation to take feasible precautions.
Chapter XVI discussion of cyber operations and jus in bello proportionality.
i. Changes the “proportionality rule” to the “principle of proportionality” inseveral sentences of § 16.5.1.1 for consistency with language used
elsewhere. Changes “the proportionality rule” to “this prohibition” in thesecond sentence of § 16.5.1.1 for consistency with language used
elsewhere. Changes “losses” to “disruptions” in the third paragraph of§ 16.5.1.1 for consistency with language used elsewhere. Changes“applying” to “assessing whether an attack is prohibited by” in the thirdparagraph of § 16.5.1.1 for clarity and accuracy.
ii. Changes the “proportionality rule” to the “principle of proportionality inconducting attacks” in the last paragraph of § 16.5.2 for consistency withlanguage used elsewhere.
iii. Changes the “proportionality rule” to the “principle of proportionality” inthe last paragraph of § 16.5.3 for consistency with language used
elsewhere. Adjusts footnotes accordingly.
Chapter XVII discussion of the law of war in non-international armed conflicts.
i. Revises § 17.7 for consistency in describing the general obligation to takefeasible precautions.
ii. Changes the “distinction and proportionality rules” to the “principles of
distinction and proportionality” in § 17.7.1 for consistency with language
used elsewhere.
iii. Revises language in § 17.14.1.2 to clarify the legal consequences of theacceptance of incidental harm in non-international armed conflicts by thewounded, sick, and shipwrecked. Adjusts footnotes accordingly.
iv. Revises language in § 17.15.1.2 to clarify the legal consequences of theacceptance of incidental harm in non-international armed conflicts bymedical and religious personnel who are part of armed forces or groups.
Adjusts footnotes accordingly.
v. Revises language in § 17.15.2.2 to clarify the legal consequences of theacceptance of incidental harm in non-international armed conflicts bymedical units and transports that are part of armed forces or groups.
Adjusts footnotes accordingly.
Chapter XVIII discussion of the duties of each individual member of the armed
forces to implement the law of war.
i. Reorganizes and elaborates slightly upon § 18.3.1 as it explains principles
that are discussed in the revised sections on proportionality. Adds two
subsection headings to help organize the section and allow for crossreferencing.

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3.

4.
5.
6.

7.

1. In the new § 18.3.1.1, articulates the underlying principle that is
drawn upon in the revised sections on proportionality and adds anexample from the revised sections on proportionality.
ii. Adds a sentence in the new § 18.3.2.1 connecting this section with the new
discussion in § 5.10.2.3.
Revisions to § 18.7.2.3.
a. Adds an example in § 18.7.2.3 that cross-references discussion in the new§ 5.1.2.1.
b. Adds a sentence in § 18.7.2.3 noting that failures to adhere to policy standards
that are more restrictive than law of war requirements would not necessarily beviolations of the law of war.
Updates the example used to illustrate the use of the “For example” signal in § 1.2.4 toreflect the revisions to that footnote.
Adds a new source to support the point made in § 6.13.2 (footnote 345).
Updates to account for recent developments in U.S. practice.
a. Adds a source to footnote 217 in § 6.10.3.1 from a U.S. statement to the United
Nations Sixth Committee in November 2015.
b. Adds a sentence to the end of the first paragraph of § 6.13.4 drawn from a U.S.
statement to the United Nations Conference on Disarmament in November 2015.
c. Adds material drawn from Principles Related to the Protection of Medical Care
Provided by Impartial Humanitarian Organizations During Armed Conflict,which was affirmed by the Secretary of Defense in a memorandum of October 3,
2016.
i. Adds a paragraph to the end of § 4.26.2, before § 4.26.2.1, that includes a
relevant point discussed in Chapter XVII and that also makes a pointreflected in the October 2016 Principles document.
ii. Adds a citation in the sixth bullet in § 5.8.3.2.
iii. Adds a sentence at the end of § 17.8.1.
d. Adds a sentence in § 18.1.2.1 drawn from a speech by the State Department Legal
Adviser in April 2016.
Changes for stylistic consistency.
a. Capitalizes “versus” in the title of § 1.3.1.2.
b. Removes italicization of “proportionality” in “the principle of proportionality” ini. The last sentence of § 2.2.1.
ii. The first and third sentences of § 2.4.2.
c. Italicizes the word “parlementaires” in § 12.3.
d. Italicizes the word “Parlementaires” in the title of § 12.5.
e. Standardizes the references to the title of the Legal Adviser, Department of State.
i. Footnote 154, § 1.9.1.
ii. Footnote 218, § 1.11.4.3.
iii. Footnote 148, § 13.10.1.
iv. Footnote 218, § 17.18.2.
f. Standardizes the references to the title of the General Counsel, Department of
Defense.
i. Footnote 109, § 1.6.5.
ii. Footnote 80, § 2.5.
Page 8 of 9

iii. Footnote 89, § 2.5.3.
iv. Footnote 36, § 6.4.3.
v. Footnote 159, § 6.7.4.
vi. Footnote 173, § 6.8.1.2.
8. Typographical and other administrative errors.
a. Makes conforming changes to the section numbers and titles in the crossreferences.
b. Adds a date to the citation in footnote 111 in § 6.5.9.4.
c. Refines the citation in footnote 53 in § 8.4.2.1.
d. Corrects the date in the citation to the U.S. Government’s reply brief in Hedges v.
Obama from Sept. 20, 2012 to Dec. 20, 2012.
i. § 4.18.4.1, footnote 390.
ii. § 4.24.1, footnote 477.
e. Corrects typographical errors in footnote 44 in § 11.1.3.4.
9. Punctuation and Spacing.
a. Adds a section symbol in § 8.5.1.1 (footnote 56).
b. Adds a missing comma in the citation to Bothe, Partsch, and Solf in § 17.6.7(footnote 109).
10. New Cross-References.
a. Changes the cross-reference in § 1.11.1.2 (footnote 194) from § 5.12 to § 5.10.
b. Adds a cross-reference in § 2.2.3.1 (footnote 42) to § 5.12.2.1.
c. Adds a new cross-reference in § 6.13.2 (footnote 344) to § 5.11.6.
d. Deletes the cross-reference in § 12.5.3 (footnote 61) to § 5.12.3.2.
e. Changes the cross-reference in § 14.4.2 (footnote 78) from § 5.12.3.2 to§ 5.12.3.3.

Page 9 of 9

FOREWORD
The law of war is of fundamental importance to the Armed Forces of the United States.
The law of war is part of who we are. George Washington, as Commander in Chief of
the Continental Army, agreed with his British adversary that the Revolutionary War would be“carried on agreeable to the rules which humanity formed” and “to prevent or punish every
breach of the rules of war within the sphere of our respective commands.” During the Civil War,President Lincoln approved a set of “Instructions for the Government of the Armies of theUnited States in the Field,” which inspired other countries to adopt similar codes for their armed
forces, and which served as a template for international codifications of the law of war.
After World War II, U.S. military lawyers, trying thousands of defendants before militarycommissions did, in the words of Justice Robert Jackson, “stay the hand of vengeance andvoluntarily submit their captive enemies to the judgment of law” in “one of the most significant
tributes that Power has ever paid to Reason.” Reflecting on this distinctive history, one
Chairman of the Joint Chiefs of Staff observed that “[t]he laws of war have a peculiarly
American cast.” And it is also true that the laws of war have shaped the U.S. Armed Forces asmuch as they have shaped any other armed force in the world.
The law of war is a part of our military heritage, and obeying it is the right thing to do.
But we also know that the law of war poses no obstacle to fighting well and prevailing. Nations
have developed the law of war to be fundamentally consistent with the military doctrines that are
the basis for effective combat operations. For example, the self-control needed to refrain fromviolations of the law of war under the stresses of combat is the same good order and discipline
necessary to operate cohesively and victoriously in battle. Similarly, the law of war’s
prohibitions on torture and unnecessary destruction are consistent with the practical insight thatsuch actions ultimately frustrate rather than accomplish the mission.
This manual reflects many years of labor and expertise, on the part of civilian andmilitary lawyers from every Military Service. It reflects the experience of this Department inapplying the law of war in actual military operations, and it will help us remember the hardlearned lessons from the past. Understanding our duties imposed by the law of war and ourrights under it is essential to our service in the nation’s defense.

Stephen W. Preston
General Counsel of the Department of Defenseii

PREFACE
This manual is a Department of Defense (DoD)-wide resource for DoD personnel –including commanders, legal practitioners, and other military and civilian personnel – on the lawof war.
This manual has many distinguished antecedents that have provided important guidance
to the U.S. Armed Forces. For example, General Order No. 100, the Instructions for theGovernment of Armies of the United States in the Field, commonly known as the Lieber Code,was prepared by Professor Francis Lieber and approved by President Abraham Lincoln during
the Civil War in 1863. 1 A similar code related to naval warfare titled The Law and Usages of
War at Sea: A Naval War Code was prepared by then-Captain Charles H. Stockton andapproved by President William McKinley in 1900. 2 The War Department published instructions
for the armed land forces of the United States in a 1914 manual titled Rules of Land Warfare,which was updated in 1917, 1934, and 1940. 3
After World War II, in connection with U.S. ratification of the 1949 Geneva
Conventions, the Department of the Navy published Naval Warfare Information Publication 102, Law of Naval Warfare, in 1955, 4 and the Department of the Army published Field Manual 2710, The Law of Land Warfare, in 1956, which was updated in 1976. 5 The Department of the
Army also published pamphlets on international law applicable in peace and war in the 1960s,
and, in 1979, an updated version of the pamphlet on the law of peace. 6 The Department of the
Air Force published in 1976 Air Force Pamphlet 110-31, International Law – The Conduct ofArmed Conflict and Air Operations, which was updated in 1980. 7 More recently, the Judge
Advocate General of the Air Force’s School has published a manual titled Air Force Operations
and the Law in 2002, with new editions in 2009 and 2014. 8 The Navy, Marine Corps, and Coast

1

E. D. Townsend, Assistant Adjutant General, General Orders No. 100, Instructions for the Government of Armiesof the United States in the Field, Apr. 24, 1863, reprinted in INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF
THE UNITED STATES IN THE FIELD (Government Printing Office, 1898).
2

John D. Long, Secretary of the Navy, General Orders No. 551, The Laws and Usages of War at Sea, Jun. 27, 1900,
reprinted as Appendix I in U.S. Naval War College, International Law Discussions, 1903: The United States Naval
War Code of 1900, 101 (1904).
3

War Department, Office of the Chief of Staff, Rules of Land Warfare (Apr. 25, 1914); War Department, Office of
the Chief of Staff, Rules of Land Warfare (Apr. 25, 1914 with Changes Nos. 1 and 2, corrected to Apr. 15, 1917);
War Department, Basic Field Manual, Volume VII, Military Law, Part Two: Rules of Land Warfare (Jan. 2, 1934);
War Department Field Manual 27-10, Rules of Land Warfare (Oct. 1, 1940).
4Department of the Navy, Office of the Chief of Naval Operations, Naval Warfare Information Publication 10-2,
Law of Naval Warfare (Sept. 1955), reprinted as Appendix in ROBERT W. TUCKER, THE LAW OF WAR AND
NEUTRALITY AT SEA (U.S. Naval War College International Law Studies, Volume 50, 1955).
5Department of the Army Field Manual 27-10, The Law of Land Warfare (Jul. 18, 1956 with Change 1, Jul. 15,
1976).
6

Department of the Army Pamphlet 27-161-2, II International Law (Oct. 23, 1962); Department of the Army
Pamphlet 27-161-1, I International Law: The Law of Peace (Sept. 1, 1979).

7

Department of the Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air
Operations (Nov. 19, 1976).

iii

Guard have published several editions of The Commander’s Handbook on the Law of Naval
Operations starting in 1987 and most recently in 2007. 9 Helpful annotated supplements havealso been published. 10
In addition to these major publications, DoD components have produced many otherpublications that have supported DoD lawyers in giving advice on the law of war. For example,
since 1895, the Naval War College has published its International Law Studies journal. 11 The
Judge Advocate General of the Army’s Legal Center & School has published many editions of a
Law of Armed Conflict Deskbook, a Law of Armed Conflict Documentary Supplement, and an
Operational Law Handbook. 12
The preparation of this manual also has benefited greatly from consulting foreign experts
and resources – for example, the 2004 edition of the Manual of the Law of Armed Conflict byUnited Kingdom Ministry of Defence. 13 In this way, the preparation of this manual is nodifferent from its predecessors. For example, the 1956 Army Field manual benefited fromconsidering a draft of what ultimately became the 1958 United Kingdom law of war manual, andthe preparation of the 1914 War Department manual benefited from the Rules of Land Warfare
prepared by officers of the English Army and Professor Lassa Oppenheim. 14 The law of war
manuals of Germany, Australia, and Canada were also helpful resources in the preparation of this8

Department of the Air Force, The Judge Advocate General’s School, Air Force Operations and the Law (3rd ed.,2014); Department of the Air Force, The Judge Advocate General’s School, Air Force Operations & the Law: A
Guide for Air, Space, and Cyber Forces (2nd ed., 2009); Department of the Air Force, Office of the Judge Advocate
General, Air Force Operations & the Law (1st ed., 2002).
9

Department of the Navy, Naval Warfare Publication 9, The Commander’s Handbook on the Law of Naval
Operations (Jul. 1987); Department of the Navy, Naval Warfare Publication 1-14M / Marine Corps Warfighting
Publication 5-2.1 / Commandant Publication P5800.1, The Commander’s Handbook on the Law of Naval
Operations (Oct. 1995); Department of the Navy, Naval Warfare Publication 1-14M / Marine Corps Warfighting
Publication 5-12.1 / Commandant Publication P5800.7A, The Commander’s Handbook on the Law of Naval
Operations (Jul. 2007).
10

Department of the Navy, Office of the Judge Advocate General, Annotated Supplement to the Commander’s
Handbook on the Law of Naval Operations, NWP (Rev.A)/FMFM 1-10 (1989); U.S. Naval War College, Center forNaval Warfare Studies, Oceans Law and Policy Department, Annotated Supplement to the Commander’s Handbook
on the Law of Naval Operations (1997).
11

See, e.g., U.S. Naval War College, International Law Studies, Vol. 88, Non-International Armed Conflict in the
Twenty-first Century (2012).
12

See, e.g., The Judge Advocate General’s Legal Center and School, U.S. Army, International and Operational Law
Department, Law of Armed Conflict Deskbook (2014); The Judge Advocate General’s Legal Center and School, U.S.
Army, International and Operational Law Department, Law of Armed Conflict Documentary Supplement (2014);
The Judge Advocate General’s Legal Center and School, U.S. Army, International and Operational Law
Department, Operational Law Handbook (2014).
13

United Kingdom Ministry of Defence, Joint Service Publication 383, The Joint Service Manual of the Law of
Armed Conflict (2004).
14

See War Department, Office of the Chief of Staff, Rules of Land Warfare, Preface 7 (Apr. 25, 1914) (“Especial
use was made of the Rules of Land Warfare, prepared by officers of the English Army and Prof. L. Oppenheim,
LL.D., and of Prof. Nagao Ariga’s book, ‘La Guerre Russo-Japonaise,’ which deals so carefully and thoroughly withthe laws and usages of war during one of the greatest wars of recent times.”).

iv

manual. 15
The preparation of this manual has also benefited from the participation of officers fromthe United Kingdom’s Royal Air Force and the Royal Australian Air Force on exchange
assignments with the U.S. Air Force. In addition, military lawyers from Canada, the United
Kingdom, New Zealand, and Australia reviewed and commented on a draft of the manual in2009 as part of review that also included comments from distinguished scholars.
Promulgating a DoD-wide manual on the law of war has been a long-standing goal of
DoD lawyers. Memoranda and meeting notes from the 1970s reflect that the international law
offices of the Department of the Army’s Office of the Judge Advocate General and theDepartment of the Navy’s Office of the Judge Advocate General generally agreed on a concept
plan for a new all-Services law of war manual that would be a resource for implementing the1977 Additional Protocols to the 1949 Geneva Conventions. 16 At the time, it was anticipatedthat the United States would ratify the Protocols, which has not occurred.
The origin of this manual may be traced to work in the late 1980s to update Departmentof the Army Field Manual 27-10, The Law of Land Warfare. 17 Then, in the mid-1990s, work
began on an all-Services law of war manual to reflect the views of all DoD components. It wasenvisioned that the manual would provide not only the black letter rules, but also discussion,
examples of State practice, and references to past manuals, treatises, and other documents toprovide explanation, clarification, and elaboration. The present manual has sought to realize thatvision and thus it falls within the tradition of the 1914 War Department manual, as well as the
1989 and 1997 Commander’s Handbook on the Law of Naval Operations, which also adopted
this general approach of an annotated manual.
This manual is an institutional publication and reflects the views of the Department of
Defense, rather than the views of any particular person or DoD component. An effort has been
made to reflect in this manual sound legal positions based on relevant authoritative sources of thelaw, including as developed by the DoD or the U.S. Government under such sources, and toshow in the cited sources the past practice of DoD or the United States in applying the law ofwar.
This manual primarily has been prepared by the DoD Law of War Working Group, which
is chaired by a representative of the DoD General Counsel and includes representatives of theJudge Advocates General of the Army, Navy, and Air Force; the Staff Judge Advocate to the15

Germany, Federal Ministry of Defence, Joint Service Regulation (ZDv) 15/2, Law of Armed Conflict Manual(May 1, 2013); Australian Defence Force, Australian Defence Doctrine Publication 06.4, Law of Armed Conflict(May 11, 2006); Canada, Department of National Defence, Joint Doctrine Manual B-GJ-005-104/FP-021, Law of
Armed Conflict at the Operational and Tactical Levels (Aug. 13, 2001).
16

Captain Bruce A. Harlow, JAGC, U.S. Navy, Memorandum for Mr. Waldemar H. Solf (DAJA-IA), Preparationof New Law of War Manual (Dec. 28, 1976).
17

Remarks by W. Hays Parks, Customary Law and Additional Protocol I to the Geneva Conventions for Protectionof War Victims: Future Directions in Light of the U.S. Decision Not to Ratify, 81 AMERICAN SOCIETY OF
INTERNATIONAL LAW PROCEEDINGS 26 (Apr. 9, 1987) (“I have the job of writing the new U.S. Army Field Manual
27-10, The Law of Land Warfare, so this panel is of particular interest to me.”).

v

Commandant of the Marine Corps; the offices of the General Counsels of the Military
Departments; and the Legal Counsel to the Chairman of the Joint Chiefs of Staff. 18 This manual
has been reviewed by principals of these offices. The preparation of this manual has also
benefited significantly from the participation of experts from the Department of State, Office of
the Legal Adviser, and the Department of Justice, Office of Legal Counsel, although the views inthis manual do not necessarily reflect the views of those Departments or the U.S. Government as
a whole.
Comments and suggestions from users of the DoD Law of War Manual are invited. Allsuch correspondence should be addressed by email to:
osd.pentagon.ogc.mbx.ia-law-of-war-manual-comments@mail.mil.

18

DOD DIRECTIVE 2310.01E, DoD Law of War Program ¶5.1.4 (May 9, 2006, Certified Current as of Feb. 22,2011) (providing for a “DoD Law of War Working Group, consisting of representatives, at the election by each of
the GC, DoD; the General Counsel of each Military Department; the Counsel to the Commandant of the Marine
Corps; the Judge Advocate General of each Military Department; the Staff Judge Advocate to the Commandant of
the Marine Corps; and the Legal Counsel to the Chairman of the Joint Chiefs of Staff. The DoD Law of War
Working Group shall develop and coordinate law of war initiatives and issues; support the research, preparation,
review, and updating of the DoD Law of War Manual; manage other law of war matters as they arise; and provide
advice to the General Counsel on legal matters covered by this Directive.”).

vi

TABLE OF CONTENTS
Foreword .........................................................................................................................ii
Preface .............................................................................................................................iii
Table of Contents ...........................................................................................................vii
List of Abbreviations .....................................................................................................xviii
I – General Background ............................................................................................................1
1.1 Purpose and Scope of This Manual ........................................................................ 1
1.2 Use of Footnotes, Sources, Cross-References, and Signals in This Manual ............ 2
1.3 Definition of the Law of War ................................................................................. 7
1.4 Object and Nature of War ...................................................................................... 16
1.5 “War” as a Legal Concept ...................................................................................... 18
1.6 Law of War Distinguished From Certain Topics .................................................... 20
1.7 Treaties .................................................................................................................. 27
1.8 Customary International Law ................................................................................. 29
1.9 Subsidiary Means of Determining International Law ............................................. 34
1.10 Legal Force of the Law of War ............................................................................ 36
1.11 Jus ad Bellum ...................................................................................................... 39
II – Principles .............................................................................................................................50
2.1 Introduction ........................................................................................................... 50
2.2 Military Necessity.................................................................................................. 52
2.3 Humanity ............................................................................................................... 58
2.4 Proportionality ....................................................................................................... 60
2.5 Distinction ............................................................................................................. 62
2.6 Honor .................................................................................................................... 65
III – Application of the Law of War ........................................................................................70
3.1 Introduction ........................................................................................................... 70
3.2 Situations to Which the Law of War Applies ......................................................... 72
3.3 Status of the Parties and the Law of War ................................................................ 73
3.4 When Jus in Bello Rules Apply.............................................................................. 78
3.5 Relationship Between Jus in Bello and Jus ad Bellum ............................................ 86
3.6 Reciprocity and Law of War Rules ........................................................................ 89
3.7 Applying Rules by Analogy ................................................................................... 92
3.8 End of Hostilities and the Application of the Law of War ...................................... 94
3.9 Law of War Duties Also Applicable in Peace......................................................... 96
IV – Classes of Persons ..............................................................................................................97
4.1 Introduction ........................................................................................................... 97vii

4.2 The Armed Forces and the Civilian Population ...................................................... 99
4.3 Lawful Combatants and Unprivileged Belligerents ................................................ 102
4.4 Rights, Duties, and Liabilities of Combatants......................................................... 105
4.5 Armed Forces of a State ......................................................................................... 111
4.6 Other Militia and Volunteer Corps ......................................................................... 117
4.7 Levée en Masse ...................................................................................................... 124
4.8 Rights, Duties, and Liabilities of Civilians ............................................................. 126
4.9 Military Medical and Religious Personnel.............................................................. 128
4.10 Rights, Duties, and Liabilities of Military Medical and Religious Personnel......... 132
4.11 Authorized Staff of Voluntary Aid Societies ........................................................ 133
4.12 Staff of a Recognized Aid Society of a Neutral Country....................................... 134
4.13 Auxiliary Medical Personnel ................................................................................ 135
4.14 Personnel Engaged in Duties Related to the Protection of Cultural Property......... 136
4.15 Persons Authorized to Accompany the Armed Forces .......................................... 141
4.16 Crews of Merchant Marine Vessels or Civil Aircraft ............................................ 147
4.17 Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind
Enemy Lines .................................................................................................... 148
4.18 Private Persons Who Engage in Hostilities ........................................................... 155
4.19 Rights, Duties, and Liabilities of Unprivileged Belligerents ................................. 160
4.20 Children ............................................................................................................... 164
4.21 Mercenaries ......................................................................................................... 168
4.22 AP I Provisions on Civil Defense Personnel ......................................................... 170
4.23 Law Enforcement Officers ................................................................................... 170
4.24 Journalists ............................................................................................................ 171
4.25 Delegates or Representatives of the Protecting Powers ......................................... 176
4.26 ICRC and Other Impartial Humanitarian Organizations ....................................... 177
4.27 Determining the Status of Detainees in Cases of Doubt ........................................ 180
V – The Conduct of Hostilities ..................................................................................................184
5.1 Introduction ........................................................................................................... 184
5.2 Overview of Rules for the Protection of Civilians .................................................. 187
5.3 Assessing Information Under the Law of War........................................................ 195
5.4 Rules on Conducting Assaults, Bombardments, and Other Attacks ........................ 197
5.5 Discrimination in Conducting Attacks.................................................................... 207
5.6 Military Objectives ................................................................................................ 208
5.7 Combatants ............................................................................................................ 220
5.8 Civilians Taking a Direct Part in Hostilities ........................................................... 226
5.9 Persons Placed Hors de Combat ............................................................................. 236
5.10 Proportionality in Conducting Attacks ................................................................. 241
5.11 Proportionality – Feasible Precautions in Planning and Conducting Attacks
to Reduce the Risk of Harm to Protected Persons and Objects .......................... 250
5.12 Proportionality – Prohibition on Attacks Expected to Cause Excessive
Incidental Harm ............................................................................................... 260
5.13 Attacks on Facilities, Works, or Installations Containing Dangerous Forces ......... 270

viii

5.14 Feasible Precautions to Reduce the Risk of Harm to Protected Persons andObjects by the Party Subject to Attack ............................................................. 271
5.15 Undefended Cities, Towns, and Villages .............................................................. 276
5.16 Prohibition on Using Protected Persons and Objects to Shield, Favor, or
Impede Military Operations ............................................................................. 282
5.17 Seizure and Destruction of Enemy Property ......................................................... 285
5.18 Protection of Cultural Property During Hostilities ................................................ 293
5.19 Sieges and Encircled Areas .................................................................................. 312
5.20 Starvation ............................................................................................................ 315
5.21 Overview of Good Faith, Perfidy, and Ruses........................................................ 318
5.22 Treachery or Perfidy Used to Kill or Wound ........................................................ 319
5.23 Use of Enemy Flags, Insignia, and Military Uniforms .......................................... 322
5.24 Improper Use of Certain Signs ............................................................................. 324
5.25 Ruses of War and Other Lawful Deceptions ......................................................... 326
5.26 Non-Forcible Means and Methods of Warfare...................................................... 331
5.27 Prohibition Against Compelling Enemy Nationals to Take Part in the
Operations of War Directed Against Their Own Country ................................. 334
VI – Weapons .............................................................................................................................336
6.1 Introduction ........................................................................................................... 336
6.2 DoD Policy of Reviewing the Legality of Weapons ............................................... 337
6.3 Other Practices to Help Implement Law of War Obligations With Respect toWeapons .......................................................................................................... 340
6.4 Prohibited Weapons ............................................................................................... 341
6.5 Lawful Weapons .................................................................................................... 342
6.6 Weapons Calculated to Cause Superfluous Injury .................................................. 357
6.7 Inherently Indiscriminate Weapons ........................................................................ 364
6.8 Poison, Poisoned Weapons, Poisonous Gases, and Other Chemical Weapons ........ 367
6.9 Biological Weapons ............................................................................................... 373
6.10 Certain Environmental Modification Techniques ................................................. 376
6.11 Weapons Injuring by Fragments Not Detectable by X-Rays ................................. 379
6.12 Landmines, Booby-Traps, and Other Devices ...................................................... 380
6.13 Cluster Munitions ................................................................................................ 403
6.14 Incendiary Weapons ............................................................................................ 406
6.15 Laser Weapons .................................................................................................... 410
6.16 Riot Control Agents ............................................................................................. 413
6.17 Herbicides............................................................................................................ 415
6.18 Nuclear Weapons ................................................................................................. 416
6.19 Explosive Ordnance ............................................................................................. 419
6.20 Explosive Remnants of War ................................................................................. 424
VII –Wounded, Sick, Shipwrecked, Dead, and the Medical Services ...................................433
7.1 Introduction ........................................................................................................... 433
7.2 Application of the Protections of the GWS and GWS-Sea ...................................... 436
ix

7.3 Respect and Protection of the Wounded, Sick, and Shipwrecked............................ 438
7.4 Search, Collection, and Affirmative Protection of the Wounded, Sick,
Shipwrecked, and Dead .................................................................................... 443
7.5 Humane Treatment and Care of Enemy Military Wounded, Sick, andShipwrecked in the Power of a Party to the Conflict ......................................... 447
7.6 Accountability Information From the Enemy Military Wounded, Sick,
Shipwrecked, and Dead .................................................................................... 450
7.7 Treatment and Handling of Enemy Military Dead .................................................. 452
7.8 Respect and Protection of Categories of Medical and Religious Personnel ............. 457
7.9 Captured Medical and Religious Personnel ............................................................ 461
7.10 Military Medical Units and Facilities ................................................................... 467
7.11 Ground Transports of the Wounded and Sick, or of Medical Equipment .............. 474
7.12 Hospital Ships, Sick-Bays in Warships, and Coastal Rescue Craft........................ 475
7.13 Chartered Medical Transport Ships ...................................................................... 488
7.14 Military Medical Aircraft ..................................................................................... 488
7.15 Display of the Distinctive Emblem to Facilitate Identification .............................. 492
7.16 Protection of Civilians Who Are Wounded, Sick, Infirm, or Expectant
Mothers............................................................................................................ 499
7.17 Civilian Hospitals and Their Personnel ................................................................ 500
7.18 Land and Sea Civilian Hospital Convoys ............................................................. 503
7.19 Civilian Medical Aircraft ..................................................................................... 504
7.20 AP I Provisions on the Wounded, Sick, and Shipwrecked .................................... 505
VIII – Detention: Overview and Baseline Rules ....................................................................508
8.1 Introduction ........................................................................................................... 508
8.2 Humane Treatment of Detainees ............................................................................ 514
8.3 Security Measures.................................................................................................. 517
8.4 Interrogation .......................................................................................................... 518
8.5 Adequate Food, Drinking Water, and Clothing ...................................................... 519
8.6 General Conditions of Detention Facilities ............................................................. 519
8.7 Segregation of Detainees ....................................................................................... 520
8.8 Medical Attention .................................................................................................. 521
8.9 Administration and Discipline in Detention Facilities ............................................ 522
8.10 Contacts With the Outside World ......................................................................... 522
8.11 Religious Exercise ............................................................................................... 523
8.12 Intellectual, Physical, and Recreational Activities ................................................ 524
8.13 Adequate Working Conditions ............................................................................. 525
8.14 Procedures for Detention...................................................................................... 525
8.15 National Accountability for Detention.................................................................. 528
8.16 Criminal Procedure and Punishment .................................................................... 529
IX – Prisoners of War (POWs) .................................................................................................533
9.1 Introduction ........................................................................................................... 534
9.2 General Principles Applicable to the Treatment of POWs ...................................... 537
x9.3 POW Status ........................................................................................................... 539
9.4 National-Level GPW Implementation Measures .................................................... 544
9.5 Humane Treatment and Basic Protections for POWs.............................................. 546
9.6 Security Measures With Respect to POWs ............................................................. 551
9.7 POW Effects and Articles of Personal Use ............................................................. 552
9.8 Interrogation of POWs ........................................................................................... 554
9.9 Evacuation From Combat Areas ............................................................................ 556
9.10 Transit or Screening Facilities .............................................................................. 558
9.11 General Conditions in POW Camps: Location, Safety, Hygiene, and Living
Conditions ....................................................................................................... 559
9.12 Segregation of POWs ........................................................................................... 565
9.13 Food, Water, Tobacco, and Clothing for POWs ................................................... 567
9.14 Medical Attention for Interned POWs .................................................................. 569
9.15 Religious Exercise by POWs ............................................................................... 571
9.16 Intellectual, Physical, and Recreational Activities ................................................ 573
9.17 Canteens for POWs .............................................................................................. 575
9.18 Financial Resources of POWs .............................................................................. 576
9.19 POW Labor.......................................................................................................... 583
9.20 POW Correspondence and Relief Shipments........................................................ 590
9.21 Private Legal Matters of POWs ............................................................................ 598
9.22 Internal Discipline of POW Camps ...................................................................... 600
9.23 POW Requests, Complaints, and Reports About Conditions of Captivity ............. 603
9.24 POW Representatives .......................................................................................... 605
9.25 POW Escapes ...................................................................................................... 612
9.26 General Principles Applicable to POW Discipline................................................ 616
9.27 Disciplinary Proceedings and Punishment ............................................................ 619
9.28 Judicial Proceedings and Punishment ................................................................... 624
9.29 Transfer of POWs From the POW Camp ............................................................. 631
9.30 Transfer of POWs to the Custody of Another Detaining Power ............................ 632
9.31 National Accounting of the Detention of POWs ................................................... 634
9.32 Role of the Protecting Power in the GPW ............................................................ 639
9.33 Access to POWs by the Protecting Powers, ICRC, and Relief Organizations........ 642
9.34 Death of POWs .................................................................................................... 643
9.35 Exchanges and Other Release and Repatriation of POWs During Hostilities ........ 647
9.36 Direct Repatriation and Accommodation in Neutral Countries During
Hostilities......................................................................................................... 648
9.37 Release and Repatriation After Hostilities ............................................................ 653
9.38 Procedure on Release and Repatriation After Hostilities....................................... 659
9.39 Code of Conduct for U.S. Armed Forces .............................................................. 661
X – Civilians in the Hands of a Party to the Conflict .............................................................665
10.1 Introduction ......................................................................................................... 666
10.2 National-Level GC Implementation Measures...................................................... 668
10.3 Protected Person Status ........................................................................................ 669
10.4 Derogation for Security Reasons .......................................................................... 674
xi10.5 Humane Treatment and Other Basic Protections for Protected Persons................. 676
10.6 Measures of Control and Security ........................................................................ 679
10.7 General Treatment of Protected Persons in a Belligerent’s Home Territory .......... 682
10.8 Expulsion From Areas Within a Belligerent’s Home Territory and Departureand Transfers of Protected Persons From a Belligerent’s Home Territory ......... 685
10.9 Internment ........................................................................................................... 688
10.10 Segregation of Internees ..................................................................................... 691
10.11 Safety, Hygiene, and Living Conditions in Places of Internment ........................ 693
10.12 Canteens for Internees ........................................................................................ 696
10.13 Food, Water, Tobacco, and Clothing for Internees.............................................. 697
10.14 Medical Attention for Internees .......................................................................... 699
10.15 Religious Exercise by Internees ......................................................................... 701
10.16 Intellectual, Physical, and Recreational Activities .............................................. 702
10.17 Internee Labor.................................................................................................... 703
10.18 Internees’ Articles of Personal Use .................................................................... 706
10.19 Financial Resources of Internees ........................................................................ 707
10.20 Administration of Places of Internment and Discipline ....................................... 709
10.21 Internee Petitions, Complaints, and Reports About Conditions ofInternment ....................................................................................................... 711
10.22 Internee Committees .......................................................................................... 712
10.23 Internee Correspondence and Relief Shipments .................................................. 716
10.24 Private Legal Matters of Internees ...................................................................... 724
10.25 Internees and Visits of Family and Friends ......................................................... 725
10.26 Internee Escapes ................................................................................................ 726
10.27 General Provisions Applicable to Both Judicial and Disciplinary Sanctions
Regarding Internees ......................................................................................... 727
10.28 Disciplinary Proceedings and Punishment .......................................................... 728
10.29 Judicial Proceedings Regarding Protected Persons in Occupied Territory orInternees in a Belligerent’s Home Territory...................................................... 733
10.30 Transfers of Internees From the Place of Internment .......................................... 737
10.31 National Accounting for Protected Persons in Its Power ..................................... 740
10.32 Role of the Protecting Power in the GC .............................................................. 745
10.33 Access to Internees by Protecting Powers, ICRC, and Other Relief
Organizations ................................................................................................... 747
10.34 Death of Internees .............................................................................................. 749
10.35 Release, Return, Repatriation of Internees After the Close of Hostilities ............ 751
XI – Military Occupation ..........................................................................................................754
11.1 Introduction ......................................................................................................... 754
11.2 When Military Occupation Law Applies .............................................................. 763
11.3 End of Occupation and Duration of GC Obligations ............................................. 769
11.4 Legal Position of the Occupying Power ............................................................... 771
11.5 Duty of the Occupying Power to Ensure Public Order and Safety ........................ 773
11.6 Protection of the Population of an Occupied Territory.......................................... 774
11.7 Authority of the Occupying Power Over Inhabitants ............................................ 777
xii

11.8 Administration of Occupied Territory .................................................................. 779
11.9 Local Law and Legislation ................................................................................... 782
11.10 Ordinary Courts in Occupied Territory ............................................................... 785
11.11 Criminal Law in Occupied Territory .................................................................. 787
11.12 Movement of Persons in Occupied Territory ...................................................... 795
11.13 Protection of Children in Occupied Territory ..................................................... 798
11.14 Food and Medical Supplies for the Civilian Population ...................................... 799
11.15 Public Health and Hygiene ................................................................................. 800
11.16 Spiritual Assistance............................................................................................ 802
11.17 Relief Efforts and Consignments ........................................................................ 803
11.18 Enemy Property During Occupation................................................................... 806
11.19 Protection of Cultural Property During Occupation ............................................ 816
11.20 Labor of Protected Persons in Occupied Territory .............................................. 818
11.21 Judges and Other Public Officials ...................................................................... 823
11.22 Public Finances and Taxes ................................................................................. 825
11.23 Other Economic Regulation of Occupied Territory ............................................ 835
XII – Non-Hostile Relations Between Belligerents .................................................................839
12.1 Introduction ......................................................................................................... 839
12.2 Principle of Good Faith in Non-Hostile Relations ................................................ 842
12.3 Methods for Communication Between Belligerents.............................................. 843
12.4 The White Flag of Truce to Initiate Negotiations.................................................. 844
12.5 Rules for Parlementaires ..................................................................................... 846
12.6 Military Passports, Safe-Conducts, and Safeguards .............................................. 851
12.7 Cartels ................................................................................................................. 856
12.8 Capitulations – Negotiated Instruments of Surrender............................................ 856
12.9 Capitulations – Subjects Usually Addressed ......................................................... 860
12.10 Capitulations – Violations and Denunciation ...................................................... 862
12.11 Armistices and Other Cease-Fire Agreements .................................................... 863
12.12 Armistices – Subjects Usually Addressed........................................................... 869
12.13 Armistices – Violations and Denunciation.......................................................... 873
12.14 U.N. Security Council Cease-Fires ..................................................................... 875
XIII – Naval Warfare ................................................................................................................877
13.1 Introduction ......................................................................................................... 877
13.2 Legal Boundaries of the Oceans ........................................................................... 879
13.3 Overview of Rules for Naval Engagements .......................................................... 887
13.4 Enemy Warships .................................................................................................. 890
13.5 Enemy Merchant Vessels ..................................................................................... 891
13.6 Enemy Vessels Exempt From Capture or Destruction .......................................... 894
13.7 Submarine Warfare .............................................................................................. 896
13.8 Belligerent Control of the Immediate Area of Naval Operations........................... 897
13.9 Maritime and Airspace Zones: Exclusion, War, Operational, Warning, andSafety............................................................................................................... 899
xiii

13.10 Blockade ............................................................................................................ 903
13.11 Naval Mines....................................................................................................... 909
13.12 Torpedoes .......................................................................................................... 914
13.13 Deception by Naval Forces, Including the Use of Enemy or Neutral Flags ......... 915
XIV – Air and Space Warfare ..................................................................................................917
14.1 Introduction ......................................................................................................... 917
14.2 Legal Boundaries of Airspace .............................................................................. 921
14.3 Aircraft Status ...................................................................................................... 926
14.4 Status of Aircrew on Military Aircraft.................................................................. 929
14.5 Measures Short of Attack: Interception, Diversion, and Capture.......................... 931
14.6 Belligerent Control of Aviation in the Immediate Vicinity of Hostilities .............. 933
14.7 Airspace Zones .................................................................................................... 934
14.8 Attacks Against Military Objectives in the Air ..................................................... 934
14.9 Air Attacks Against Military Objectives on the Ground ....................................... 937
14.10 International Law And Warfare in Outer Space .................................................. 940
XV – The Law of Neutrality......................................................................................................946
15.1 Introduction ......................................................................................................... 946
15.2 Application of the Law of Neutrality.................................................................... 950
15.3 Overview of the Neutrality Law’s Framework of Reciprocal Rights andDuties .............................................................................................................. 956
15.4 Remedies for Violations of Neutrality Law .......................................................... 960
15.5 Prohibition on the Use of Neutral Territory as a Base of Operations ..................... 963
15.6 Neutral Persons .................................................................................................... 967
15.7 Neutral Waters ..................................................................................................... 970
15.8 Passage of Belligerent Vessels and Aircraft Through International Straits andArchipelagic Sea Lanes .................................................................................... 974
15.9 Additional Rules Applicable to Neutral Ports, Roadsteads, and Internal
Waters ............................................................................................................. 976
15.10 Neutral Airspace ................................................................................................ 980
15.11 Belligerent Right of Angary ............................................................................... 982
15.12 Neutral Commerce and Carriage of Contraband ................................................. 983
15.13 Belligerent Right of Visit and Search of Merchant Vessels and Civil
Aircraft ............................................................................................................ 989
15.14 Acquisition of Enemy Character by Neutral-Flagged Merchant Vessels andNeutral-Marked Civil Aircraft .......................................................................... 994
15.15 Capture of Neutral Vessels and Aircraft ............................................................. 995
15.16 Belligerent Forces Taking Refuge in Neutral Territory ....................................... 1000
15.17 POWs or Internees Brought to, or Received by, a Neutral State.......................... 1005
15.18 Authorized Passage of Wounded and Sick Combatants Through Neutral
Territory .......................................................................................................... 1007

xiv

XVI – Cyber Operations ...........................................................................................................1011
16.1 Introduction ......................................................................................................... 1011
16.2 Application of the Law of War to Cyber Operations............................................. 1013
16.3 Cyber Operations and Jus ad Bellum .................................................................... 1015
16.4 Cyber Operations and the Law of Neutrality ........................................................ 1019
16.5 Cyber Operations and Jus in Bello ....................................................................... 1020
16.6 Legal Review of Weapons That Employ Cyber Capabilities ................................ 1025
XVII – Non-International Armed Conflict (NIAC) ................................................................1027
17.1 Introduction ......................................................................................................... 1027
17.2 Application of International Law to NIACs .......................................................... 1032
17.3 Special Agreements Between Parties to the Conflict ............................................ 1040
17.4 A State’s Use of Its Domestic Law and NIAC ...................................................... 1041
17.5 Principle of Distinction in NIAC .......................................................................... 1045
17.6 Respect and Humane Treatment of Persons Taking No Active Part in
Hostilities in NIAC .......................................................................................... 1048
17.7 Rules on Conducting Attacks in NIAC ................................................................. 1050
17.8 Impartial Humanitarian Organizations and Humanitarian Activities During
NIAC ............................................................................................................... 1052
17.9 Protection of the Civilian Population in NIAC ..................................................... 1052
17.10 Protection of Children in NIAC.......................................................................... 1054
17.11 Protection of Cultural Property in NIAC ............................................................ 1055
17.12 Use of Captured or Surrendered Enemy Personnel in NIAC ............................... 1056
17.13 Weapons in NIAC .............................................................................................. 1057
17.14 Protection of the Wounded, Sick, Shipwrecked, and Dead in NIAC ................... 1058
17.15 Protection of Medical and Religious Personnel and Medical Transports in
NIAC ............................................................................................................... 1060
17.16 Display of the Distinctive Emblem in NIAC ...................................................... 1062
17.17 Detention in NIAC ............................................................................................. 1063
17.18 Non-Intervention and Neutral Duties in NIAC ................................................... 1064
XVIII – Implementation and Enforcement of the Law of War .............................................1069
18.1 Introduction ......................................................................................................... 1069
18.2 Prudential Reasons Supporting the Implementation and Enforcement of the
Law of War ...................................................................................................... 1072
18.3 Duties of Individual Members of the Armed Forces ............................................. 1074
18.4 Commanders’ Duty to Implement and Enforce the Law of War ........................... 1077
18.5 Role of Judge Advocates and Legal Advisers ....................................................... 1079
18.6 Dissemination, Study, and Other Measures to Facilitate Understanding ofDuties Under the Law of War........................................................................... 1081
18.7 Instructions, Regulations, and Procedures to Implement and Enforce the Law
of War.............................................................................................................. 1084
18.8 Considering Law of War Obligations in the Planning of Military Operations ....... 1087
18.9 States’ Obligations With Respect to Violations of the Law of War ....................... 1087
xv

18.10 Methods for Responding to Violations of the Law of War by the Enemy ........... 1095
18.11 Protests and Demands to the Offending Party ..................................................... 1095
18.12 U.N. Security Council and Enforcement of the Law of War ............................... 1096
18.13 National Investigations of Alleged Violations of the Law of War ....................... 1099
18.14 International Mechanisms to Investigate Alleged Law of War Violations ........... 1101
18.15 Protecting Power and Other Neutral Intermediaries ............................................ 1103
18.16 Compensation for Violations of the Law of War ................................................ 1107
18.17 Retorsion ........................................................................................................... 1110
18.18 Reprisals ............................................................................................................ 1110
18.19 Discipline in National Jurisdictions of Individuals for Violations of the Law
of War.............................................................................................................. 1117
18.20 Prosecution in International and Hybrid Courts .................................................. 1125
18.21 Limits on the Punishment of Individuals Under the Law of War ........................ 1131
18.22 Principles of Individual Criminal Responsibility for Crimes Under
International Law ............................................................................................. 1136
18.23 Theories of Individual Criminal Liability ........................................................... 1139
XIX Documentary Appendix – Notes on Treaties and Other Relevant Documents............1148
19.1 Introduction ......................................................................................................... 1148
19.2 Lists of Treaties and Other Documents................................................................. 1148
19.3 Lieber Code ......................................................................................................... 1155
19.4 1856 Paris Declaration Respecting Maritime Law ................................................ 1156
19.5 1864 GWS ........................................................................................................... 1157
19.6 1868 St. Petersburg Declaration ........................................................................... 1157
19.7 1899 and 1907 Hague Declarations on Weapons .................................................. 1158
19.8 1899 Hague II and 1907 Hague IV Conventions and Annexed Regulations
Regarding Land Warfare .................................................................................. 1160
19.9 1907 Hague X ...................................................................................................... 1163
19.10 1922 Washington Treaty on Submarines and Noxious Gases ............................. 1164
19.11 1923 Hague Air and Radio Rules ....................................................................... 1164
19.12 1925 Geneva Gas and Bacteriological Protocol .................................................. 1165
19.13 1929 Geneva Conventions ................................................................................. 1167
19.14 1930 London Treaty for the Limitation and Reduction of Naval Armamentand 1936 London Protocol ............................................................................... 1168
19.15 1935 Roerich Pact .............................................................................................. 1168
19.16 1949 Geneva Conventions ................................................................................. 1169
19.17 1954 Hague Cultural Property Convention ......................................................... 1174
19.18 Vienna Convention on the Law of Treaties......................................................... 1175
19.19 Biological Weapons Convention ........................................................................ 1176
19.20 1977 Additional Protocols to the 1949 Geneva Conventions .............................. 1176
19.21 CCW, CCW Amended Article 1, and CCW Protocols ........................................ 1181
19.22 Chemical Weapons Convention ......................................................................... 1188
19.23 Rome Statute of the International Criminal Court ............................................... 1191
19.24 1999 U.N. Secretary General’s Bulletin for U.N. Forces .................................... 1192
19.25 2005 ICRC Study on Customary International Humanitarian Law...................... 1192
xvi

19.26 AP III................................................................................................................. 1193

xvii

LIST OF ABBREVIATIONS
To make the manual easier to read, the use of abbreviations has often been avoided,
especially in the main text. Nonetheless, the following abbreviations of the titles of documents
have been used for frequently cited documents.
Abbreviation
1899 Hague II1899 Hague II Reg.

1909 Declaration of London

1914 Rules of Land Warfare
1925 Geneva Gas andBacteriological Protocol

1928 Pan American Maritime
Neutrality Convention
1929 GPW
1929 GWS

1940 Rules of Land Warfare
1944 Chicago Convention
1954 Hague Cultural Property
Convention
1955 NWIP 10-2

1956 FM 27-10 (Change No. 1
1976)

Long Form
Convention with Respect to the Laws and Customs of War
on Land, Jul. 29, 1899, 32 Stat. 1803
Regulations Respecting the Laws and Customs of War on
Land, annexed to Convention with Respect to the Laws andCustoms of War on Land, Jul. 29, 1899, 32 Stat. 1803,
1811
Declaration Concerning the Laws of Maritime War, Feb.
26, 1909, reprinted in James Brown Scott, The Declarationof London, February 26, 1909: A Collection of Official
Papers and Documents Relating to the International Naval
Conference Held in London, December, 1908—February,1909 (1919)
War Department, Office of the Chief of Staff, Rules ofLand Warfare (Apr. 25, 1914)
Protocol for the Prohibition of the Use in War of
Asphyxiating, Poisonous, or Other Gases, and of
Bacteriological Methods of Warfare, Jun. 17, 1925, 94
LNTS 65
Pan American Maritime Neutrality Convention, Feb. 20,
1928, 47 Stat. 1989
Geneva Convention Relative to the Treatment of Prisonersof War, Jul. 27, 1929, 47 Stat. 2021
Geneva Convention for the Amelioration of the Conditionof the Wounded and Sick of Armies in the Field, Jul. 27,
1929, 47 Stat. 2074
War Department, Field Manual 27-10, Rules of Land
Warfare (1940)
Convention on International Civil Aviation, Dec. 7, 1944,
61 Stat. 1180
Convention for the Protection of Cultural Property in the
Event of Armed Conflict, 249 UNTS 240
Department of the Navy, Office of the Chief of Naval
Operations, Naval Warfare Information Publication 10-2,
Law of Naval Warfare (Sept. 1955), reprinted as Appendix
in Robert W. Tucker, The Law of War and Neutrality at
Sea (U.S. Naval War College International Law Studies,
Volume 50, 1955)
Department of the Army Field Manual 27-10, The Law ofLand Warfare (Jul. 18, 1956 with Change 1, Jul. 15, 1976)
xviii

Abbreviation
1958 UK Manual
1976 Air Force Pamphlet 110-31

1989 NWP 91997 Multi-Service Detention
Regulation

1997 NWP 92001 Canadian Manual

2004 UK Manual

2006 Australian Manual2007 NWP 1-14M

2013 German Manual

AJIL
AP I

AP II

Long Form
United Kingdom War Office, Manual of Military Law, Part
III: The Law of War on Land (1958)
Department of the Air Force Pamphlet 110-31,
International Law – The Conduct of Armed Conflict andAir Operations (Nov. 19, 1976)
Department of the Navy, Office of the Judge Advocate
General, Annotated Supplement to the Commander’s
Handbook on the Law of Naval Operations, NWP(Rev.A)/FMFM 1-10 (1989)
Army Regulation 190-8 / Office of the Chief of Naval
Operations Instruction 3461.6 / Air Force Joint Instruction
31-304 / Marine Corps Order 3461.1, Enemy Prisoners ofWar, Retained Personnel, Civilian Internees and Other
Detainees (Oct. 1, 1997)
U.S. Naval War College, Center for Naval Warfare Studies,
Oceans Law and Policy Department, Annotated Supplement
to the Commander’s Handbook on the Law of Naval
Operations (1997)
Canada, Department of National Defence, Joint Doctrine
Manual B-GJ-005-104/FP-021, Law of Armed Conflict at
the Operational and Tactical Levels (Aug. 13, 2001)
United Kingdom Ministry of Defence, Joint Service
Publication 383, The Joint Service Manual of the Law of
Armed Conflict (2004)
Australian Defence Force, Australian Defence Doctrine
Publication 06.4, Law of Armed Conflict (May 11, 2006)
Department of the Navy, Naval Warfare Publication 1-14M/ Marine Corps Warfighting Publication 5-12.1 /Commandant Publication P5800.7A, The Commander’s
Handbook on the Law of Naval Operations (Jul. 2007)
Germany, Federal Ministry of Defence, Joint Service
Regulation (ZDv) 15/2, Law of Armed Conflict Manual(May 1, 2013)
American Journal of International Law
Protocol (I) Additional to the Geneva Conventions ofAugust 12, 1949, and Relating to the Protection of Victimsof International Armed Conflicts, Jun. 8, 1977, 1125 UNTS
3
Protocol (II) Additional to the Geneva Conventions of 12
August 1949, and Relating to the Protection of Victims of
Non-International Armed Conflicts, Jun. 8, 1977, 1125
UNTS 609

xix

Abbreviation
AP III

Appendix to 1985 CJCS Memo on
AP I
BevansBiological Weapons Convention

Bothe, Partsch, & Solf, New Rules
CCW

CCW Amended

CCW Amended Mines Protocol

CCW Protocol I

CCW Protocol III on Incendiary
Weapons

Long Form
Protocol (III) Additional to the Geneva Conventions of 12
August 1949, and Relating to the Adoption of an
Additional Distinctive Emblem, Dec. 8, 2005, 2404 UNTS
1
Appendix to John W. Vessey, Jr., Chairman, Joint Chiefs ofStaff, Review of the 1977 First Additional Protocol to the
Geneva Conventions of 1949, May 3, 1985.
Charles I. Bevans, Assistant Legal Adviser, Department ofState, Treaties and Other International Agreements of theUnited States of America, 1776-1949 (13 Volumes, 19681976)
Convention on the Prohibition of the Development,
Production and Stockpiling of Bacteriological (Biological)
and Toxin Weapons and on Their Destruction, Apr. 10,
1972, 1015 UNTS 163
Michael Bothe, Karl Josef Partsch, & Waldemar A. Solf,
New Rules for Victims of Armed Conflicts (1982)
Convention on Prohibitions or Restrictions on the Use of
Certain Conventional Weapons Which May be Deemed to
be Excessively Injurious or to Have Indiscriminate Effects,
Oct. 10, 1980, 1342 UNTS 137
Amendment to Article I of the Convention on Prohibitions
or Restrictions on the Use of Certain Conventional
Weapons Which May be Deemed to be Excessively
Injurious or to Have Indiscriminate Effects, Dec. 21, 2001,
2260 UNTS 82
Protocol (II) on Prohibitions or Restrictions on the Use of
Mines, Booby-Traps and Other Devices, as Amended on
May 3, 1996, Annexed to the Convention on Prohibitions
or Restrictions on the Use of Certain Conventional
Weapons Which May be Deemed to be Excessively
Injurious or to Have Indiscriminate Effects, May 3, 1996,
2048 UNTS 93
Protocol (I) on Non-Detectable Fragments, Annexed to theConvention on Prohibitions or Restrictions on the Use of
Certain Conventional Weapons Which May be Deemed to
be Excessively Injurious or to Have Indiscriminate Effects,
Oct. 10, 1980, 1342 UNTS 137
Protocol (III) on Prohibitions or Restrictions on the Use of
Incendiary Weapons, Annexed to the Convention on
Prohibitions or Restrictions on the Use of Certain
Conventional Weapons Which May be Deemed to be
Excessively Injurious or to Have Indiscriminate Effects,
Oct. 10, 1980, 1342 UNTS 137

xxAbbreviation
CCW Protocol IV on Blinding
Laser Weapons

CCW Protocol V on Explosive
Remnants of War

Chairman’s Commentary to the
Copenhagen Process: Principles
and Guidelines
Chemical Weapons Convention

Copenhagen Process: Principles
and Guidelines

Digest of United States Practice inInternational Law
ENMOD Convention

Final Record of 1949 Geneva
Diplomatic Conference
Final Report on the Persian Gulf
War
GC
GC Commentary

GPW
GPW Commentary

Greenspan, Modern Law of Land
WarfareLong Form
Protocol (IV) on Blinding Laser Weapons, Annexed to theConvention on Prohibitions or Restrictions on the Use of
Certain Conventional Weapons Which May be Deemed to
be Excessively Injurious or to Have Indiscriminate Effects,
Oct. 13, 1995, 1380 UNTS 163
Protocol (V) on Explosive Remnants of War, Annexed to
the Convention on Prohibitions or Restrictions on the Use
of Certain Conventional Weapons Which May be Deemed
to be Excessively Injurious or to Have Indiscriminate
Effects, Nov. 28, 2003, 2399 UNTS 100
The Copenhagen Process on the Handling of Detainees inInternational Military Operations, Chairman’s Commentary
to the Copenhagen Process: Principles and Guidelines(Denmark, Ministry of Foreign Affairs, Oct. 19, 2012)
Convention on the Prohibition of the Development,
Production, Stockpiling and Use of Chemical Weapons andon Their Destruction, Jan. 13, 1993, 1974 UNTS 317
The Copenhagen Process on the Handling of Detainees inInternational Military Operations, The Copenhagen
Process: Principles and Guidelines (Denmark, Ministry ofForeign Affairs, Oct. 19, 2012)
Digest of United States Practice in International Law(Department of State, Office of the Legal Adviser)
Convention on the Prohibition of Military or Any Other
Hostile Use of Environmental Modification Techniques,
Dec. 10, 1976, 1108 UNTS 151
Diplomatic Conference of Geneva, Final Record of the
Diplomatic Conference of Geneva of 1949 (Switzerland,Federal Political Department, 1949)
Department of Defense, Conduct of the Persian Gulf War:
Final Report to Congress (1992)
Geneva Convention Relative to the Protection of Civilian
Persons in Time of War, Aug. 12, 1949, 75 UNTS 287
Jean S. Pictet, Geneva Convention Relative to theProtection of Civilian Persons in Time of War:
Commentary (International Committee of the Red Cross,
1958)
Geneva Convention Relative to the Treatment of Prisonersof War, Aug. 12, 1949, 75 UNTS 135
Jean S. Pictet, Geneva Convention Relative to theTreatment of Prisoners of War: Commentary (International
Committee of the Red Cross, 1960)
Morris Greenspan, The Modern Law of Land Warfare(1959)

xxi

Abbreviation
Grotius, Law of War & PeaceGWS

GWS Commentary

GWS-Sea

GWS-Sea Commentary

Hague IV
Hague IV Reg.

Hague IX
Hague V

Hague VIII
Hague X

Hague XI

Hague XIIIICJ Statute
ICRC AP CommentaryLong Form
Hugo Grotius, The Law of War and Peace: De Jure Belli
ac Pacis Libri Tres (translated by Francis W. Kelsey, 1925)
Geneva Convention for the Amelioration of the Conditionof the Wounded and Sick in Armed Forces in the Field,
Aug. 12, 1949, 75 UNTS 31
Jean S. Pictet, Geneva Convention for the Amelioration of
the Condition of the Wounded and Sick in Armed Forces in
the Field: Commentary (International Committee of the
Red Cross, 1952)
Geneva Convention for the Amelioration of the Conditionof the Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea, Aug. 12, 1949, 75 UNTS 85
Jean S. Pictet, Geneva Convention for the Amelioration of
the Condition of the Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea: Commentary(International Committee of the Red Cross, 1960)
Convention (IV) Respecting the Laws and Customs of War
on Land, Oct. 18, 1907, 36 Stat. 2277
Regulations Respecting the Laws and Customs of War on
Land, Annex to Convention (IV) Respecting the Laws andCustoms of War on Land, Oct. 18, 1907, 36 Stat. 2295
Convention (IX) Concerning Bombardment by Naval
Forces in Time of War, Oct. 18, 1907, 36 Stat. 2351
Convention (V) Respecting the Rights and Duties of
Neutral Powers and Persons in Case of War on Land, Oct.
18, 1907, 36 Stat. 2310
Convention (VIII) Relative to the Laying of Automatic
Submarine Contact Mines, Oct. 18, 1907, 36 Stat. 2332
Convention (X) for the Adaptation to Maritime Warfare of
the Principles of the Geneva Convention, Oct. 18, 1907, 36
Stat. 2371
Convention (XI) Relative to Certain Restrictions with
Regard to the Exercise of the Right of Capture in Naval
War, Oct. 18, 1907, 36 Stat. 2396
Convention (XIII) Concerning the Rights and Duties of
Neutral Powers in Naval War, Oct. 18, 1907, 36 Stat. 2415
Statute of the International Court of Justice (Annex to theCharter of the United Nations), Jun. 26, 1945, 59 Stat. 1055
Jean S. Pictet et al., Commentary on the Additional
Protocols of 8 June 1977 to the Geneva Conventions of 12
August 1949 (International Committee of the Red Cross,
1987)

xxii

Abbreviation
ICTR

ICTR Statute

ICTY

ICTY Statute

J.A.G.S. Text No. 11, Law of
Belligerent Occupation
Lauterpacht, II Oppenheim’s
International Law
Levie, Documents on POWs

Levie, POWs

Lieber CodeLNTS
LOS Convention
Message from the President
Transmitting AP IILong Form
International Criminal Tribunal for the Prosecution of
Persons Responsible for Genocide and Other Serious
Violations of International Humanitarian Law Committed
in the Territory of Rwanda and Rwandan Citizens
Responsible for Genocide and Other Such Violations
Committed in the Territory of Neighbouring States,
between 1 January 1994 and 31 December 1994
Statute of the ICTR, Annex to U.N. Security Council
Resolution 955 (1994), U.N. Doc. S/RES/955(1994) (Nov.
8, 1994).
International Tribunal for the Prosecution of Persons
Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of theFormer Yugoslavia since 1991
Statute of the ICTY, Annex to Report of the SecretaryGeneral Pursuant to Paragraph 2 of Security Council
Resolution 808 (1993), U.N. Doc. S/25704 (May 3, 1993),
adopted by U.N. Security Council Resolution 827 (1993),
U.N. Doc. S/RES/827(1993) (May 25, 1993).
U.S. Army, The Judge Advocate General’s School Text
No. 11, Law of Belligerent Occupation (Jun. 1, 1944,
reissued Jul. 2, 1945)
Lassa Oppenheim, International Law, Volume II: Disputes,
War and Neutrality (edited by H. Lauterpacht, 7th ed.,1952)
Howard S. Levie, Documents on Prisoners of War (U.S.
Naval War College International Law Studies, Volume 60,
1979)
Howard Levie, Prisoners of War in International Armed
Conflicts (U.S. Naval War College International Law
Studies, Volume 59, 1978)
E. D. Townsend, Assistant Adjutant General, General
Orders No. 100, Instructions for the Government of Armiesof the United States in the Field, Apr. 24, 1863, reprinted in
Instructions for the Government of Armies of the UnitedStates in the Field (Government Printing Office, 1898).
League of Nations Treaty Series
United Nations Convention on the Law of the Sea, Dec.10,
1982, 1833 UNTS 396.
Message from the President of the United States
Transmitting the Protocol II Additional to the Geneva
Conventions of August 12, 1949, and Relating to theProtection of Victims of Noninternational Armed Conflicts,
Concluded at Geneva on June 10, 1977, Treaty Doc. 100-2(1987)
xxiii

Abbreviation
Message from the President
Transmitting AP III, CCW
Amended Article 1, and CCW
Protocol V on Explosive
Remnants of War

Long Form
Message from the President of the United Statestransmitting Protocol Additional to the Geneva
Conventions of 12 August 1949, and Relating to the
Adoption of an Additional Distinctive Emblem (The“Geneva Protocol III”), Adopted at Geneva on December 8,
2005, and Signed by the United States on that date; The
Amendment to Article 1 of the Convention on Prohibitions
or Restrictions on the Use of Certain Conventional
Weapons Which May Be Deemed to be Excessively
Injurious or to Have Indiscriminate Effects (“The CCW
Amendment”); and The CCW Protocol Explosive
Remnants of War (The “CCW Protocol V”), Treaty Doc.
109-10 (2006)
Message from the President
Message from the President of the United States
Transmitting LOS Convention
transmitting the United Nations Convention on the Law of
the Sea, with Annexes, and the Agreement Relating to the
Implementation of Part XI of the United Nations
Convention on the Law of the Sea, with Annex, Adopted at
New York on July 28, 1994 and signed by the UnitedStates, Subject to Ratification on July 29, 1994, Treaty
Doc. 103-09 (1994)
Message from the President
Message From the President of the United States
Transmitting the 1925 Geneva Gas Transmitting The Protocol for the Prohibition of the Use inand Bacteriological Protocol
War of Asphyxiating, Poisonous, or Other Gases, and of
Bacteriological Methods of Warfare, Signed at Geneva
June 17, 1925, Executive J (1970)
Message from the President
Message from the President of the United States
Transmitting the 1954 Hague
Transmitting the Hague Convention for the Protection ofCultural Property Convention
Cultural Property in the Event of Armed Conflict (theConvention) and, for Accession, the Hague Protocol,
Concluded on May 14, 1954, and Entered into Force on
August 7, 1956 with Accompanying Report from the
Department of State on the Convention and the Hague
Protocol, Treaty Doc. 106-1 (1999)xxiv

Abbreviation
Message from the President
Transmitting the CCW Amended
Mines Protocol, Protocol III on
Incendiary Weapons, and Protocol
IV on Blinding Laser Weapons

Message from the President
Transmitting the Chemical
Weapons Convention

Message from the President
Transmitting the VCLT

Moore’s Digest
Official Records of the CDDH

Outer Space Treaty

Public Papers of the Presidents

Regulations for the Execution of
the 1954 Hague Cultural Property
Convention
Roerich Pact

Rogers, Law on the Battlefield

Long Form
Message From the President of the United States
Transmitting Protocols to the 1980 Convention on
Prohibitions or Restrictions on the use of Certain
Conventional Weapons which may be deemed to be
excessively injurious or to Have Indiscriminate effects:
The Amended Protocol on Prohibitions or Restrictions on
the Use of Mines, Booby-traps or other devices (Protocol II
or the Amended Mines Protocol); The Protocol On
Prohibitions or Restrictions on the Use of Incendiary
Weapons (Protocol III or the Incendiary Weapons
Protocol); and the Protocol on Blinding Laser Weapons(Protocol IV), Treaty Doc. 105-1 (1997)
Message from the President of the United States
Transmitting the Convention on the Prohibition of
Development, Production, Stockpiling, and use ofChemical Weapons and on their Destruction, Opened for
Signature and Signed by the United States at Paris on Jan.
13, 1993, Treaty Doc. 103-21 (1993)
Message from the President of the United States
Transmitting the Vienna Convention on the Law of Treaties
Signed for the United States on April 24, 1970, Executive L(1971)
John Bassett Moore, A Digest of International Law (8Volumes, 1906)
Official Records of the Diplomatic Conference on the
Reaffirmation and Development of International
Humanitarian Law Applicable in Armed Conflicts, Geneva
1974-1977 (16 Volumes, 1978)
Treaty on Principles Governing the Activities of States inthe Exploration and Use of Outer Space, Including theMoon and Other Celestial Bodies, Jan. 27, 1967, 610
UNTS 205
Public Papers of the Presidents of the United States(National Archives and Records Administration, Office of
the Federal Register)
Regulations for the Execution of the Convention for theProtection of Cultural Property in the Event of Armed
Conflict, Annexed to the Hague Cultural Property
Convention, May 14, 1954, 249 UNTS 270
Treaty between the United States of America and other
American Republics on the Protection of Artistic andScientific Institutions and Historic Monuments, Apr. 15,
1935, 49 Stat. 3267
A.P.V. Rogers, Law on the Battlefield (1996)xxv

Abbreviation
Rome StatuteLong Form
Rome Statute of the International Criminal Court, July 17,
1998, 2187 UNTS 90
Spaight, Air Power and War
James Maloney Spaight, Air Power and War Rights (3rdRightsed., 1947)
Spaight, War Rights on Land
James Maloney Spaight, War Rights on Land (1911)
Stat.
United States Statutes at Large
Technical Annex to CCW
Technical Annex to Protocol (II) on Prohibitions orAmended Mines Protocol
Restrictions on the Use of Mines, Booby-Traps and Other
Devices, as Amended on May 3, 1996, Annexed to theConvention on Prohibitions or Restrictions on the Use of
Certain Conventional Weapons Which May be Deemed to
be Excessively Injurious or to Have Indiscriminate Effects,
May 3, 1996, 2048 UNTS 144
Technical Annex to CCW Protocol Technical Annex to Protocol (V) on Explosive Remnants of
V On Explosive Remnants of War War, Annexed to the Convention on Prohibitions or
Restrictions on the Use of Certain Conventional Weapons
Which May be Deemed to be Excessively Injurious or to
Have Indiscriminate Effects, Nov. 28, 2003, 2399 UNTS
132
Trial of the Major War Criminals
Trial of the Major War Criminals Before the International
Before the IMT
Military Tribunal (42 Volumes, 1947-1949)
Trials of War Criminals Before the Trials of War Criminals Before the Nuernberg Military
NMT
Tribunals Under Control Council Law No. 10 (15 Volumes,
1949-1953)
Tucker, The Law of War andRobert W. Tucker, The Law of War and Neutrality at Sea
Neutrality at Sea(U.S. Naval War College International Law Studies,
Volume 50, 1955)
U.N. Charter
Charter of the United Nations, Jun. 26, 1945, 59 Stat. 1031
U.N. Law Reports
United Nations War Crimes Commission, Law Reports of
the Trials of War Criminals (15 Volumes 1947-1949)
U.S. Response to ICRC CIHLJohn B. Bellinger, III, Legal Adviser, Department of State,
Study& William J. Haynes II, General Counsel, Department of
Defense, Letter to Dr. Jacob Kellenberger, President,International Committee of the Red Cross, Regarding
Customary International Humanitarian Law Study, Nov. 3,
2006, reprinted in 46 International Legal Materials 514(2007).
U.S.C.
United States Code (as of the date of publication of thismanual)
UNTS
United Nations Treaty Series
Vattel, The Law of Nations
Emer de Vattel, The Law of Nations, or the Principles of
the Law of Nature, Applied to the Conduct and Affairs of
Nations and Sovereigns (translated by Charles Fenwick,
1916)

xxvi

AbbreviationVCLTVon Glahn, The Occupation of
Enemy Territory
Whiteman’s Digest

Winthrop, Military Law &Precedents

Long Form
Vienna Convention on the Law of Treaties, May 23, 1969,1155 UNTS 331
Gerhard von Glahn, The Occupation of Enemy Territory(1957)
Marjorie M. Whiteman, Assistant Legal Adviser,
Department of State, Digest of International Law (15Volumes, 1963-1973)
William Winthrop, Military Law and Precedents (2nd. ed.,
1920)

xxvii

I – General Background
Chapter Contents
1.1 Purpose and Scope of This Manual
1.2 Use of Footnotes, Sources, Cross-References, and Signals in This Manual
1.3 Definition of the Law of War
1.4 Object and Nature of War
1.5 “War” as a Legal Concept
1.6 Law of War Distinguished From Certain Topics
1.7 Treaties
1.8 Customary International Law
1.9 Subsidiary Means of Determining International Law
1.10 Legal Force of the Law of War
1.11 Jus ad Bellum
1.1 PURPOSE AND SCOPE OF THIS MANUAL
1.1.1 Purpose. The purpose of this manual is to provide information on the law of war to
DoD personnel responsible for implementing the law of war and executing military operations. 1
This manual represents the legal views of the Department of Defense. This manual does
not, however, preclude the Department from subsequently changing its interpretation of the law.
Although the preparation of this manual has benefited from the participation of lawyers from the
Department of State and the Department of Justice, this manual does not necessarily reflect theviews of any other department or agency of the U.S. Government or the views of the U.S.
Government as a whole.
This manual is not intended to, and does not, create any right or benefit, substantive orprocedural, enforceable at law or in equity against the United States, its departments, agencies, orother entities, its officers or employees, or any other person.
1.1.2 Scope. This manual is not a definitive explanation of all law of war issues. Thismanual focuses on jus in bello – law relating to the conduct of hostilities and the protection of
war victims.
This manual seeks to address the law of war that is applicable to the United States,
including treaties to which the United States is a Party, and applicable customary internationallaw. It provides legal rules, principles, and discussion, particularly with respect to DoD practice.
Although the views of other States may be referenced in this manual, it is not a purpose of thismanual to describe the views of other States, which may differ from views expressed in thismanual.
This manual is not a substitute for the careful practice of law. As specific legal issues
1

Refer to § 1.3 (Definition of the Law of War).

1

arise, legal advisers should consider relevant legal and policy materials (e.g., treaty provisions,judicial decisions, past U.S. practice, regulations, and doctrine), and should apply the law to thespecific factual circumstances.
This manual is intended to be a description of the law as of the date of the manual’s
promulgation. In this vein, much of this manual has been written in the past tense to help ensurethat the text remains accurate, even after subsequent developments have occurred. Every effort
has been made to ensure the accuracy of the manual, but it must be read in the light of later
developments in the law.
1.2 USE OF FOOTNOTES, SOURCES, CROSS-REFERENCES, AND SIGNALS IN THIS MANUAL
1.2.1 Use of Footnotes in This Manual. This manual uses footnotes to provide sources orcross-references to other sections of the manual in order to clarify, elaborate on, or support themain text.
An effort has been made to avoid introducing discussion in the footnotes that addresses
different propositions than those discussed in the main text. Although providing tangential
information in footnotes is common in academic legal writing, this practice has been avoided tothe extent possible for principally two reasons. First, it was desirable that this manual’s main
text convey as much information as possible without the reader needing to read the footnotes.
For example, it was desirable to avoid the possibility that a reader might misunderstand a legal
rule addressed in the main text because a notable exception to that rule was addressed only in afootnote accompanying the text. Second, tangential discussion on a given issue in footnotes
would have made it much more difficult to keep the manual’s treatment of that issue consistentfrom section to section and to allow the reader to find all the relevant information about a single
topic. Thus, tangential discussion in footnotes has been avoided, to the extent possible, in favorof cross-references to the appropriate section of the manual that addresses that topic in moredetail.
1.2.2 Use of Sources in This Manual. This manual cites sources in the footnotes tosupport or elaborate upon propositions in the main text. These sources are cited in the footnotes
to help practitioners research particular topics discussed in the main text. Reviewing the citedsources in their entirety may provide additional contextual information, especially where sources
are only partially quoted in the footnotes.
1.2.2.1 Selection of Sources. The sources cited in the footnotes have been chosen
for a variety of reasons. For example, a source may contain a particularly helpful explanation orillustration. A source may have been chosen to illustrate U.S. practice or legal interpretation. A
source may have been selected because its author was a particularly influential and respectedinternational lawyer. For example, the 1956 Department of Army Field Manual 27-10, The Law
of Land Warfare, has been a source of legal guidance for the U.S. armed forces for more than 50
years, and was published in connection with the U.S. ratification of the 1949 Geneva
Conventions. One of the persons who helped prepare the 1956 manual was Richard Baxter, ahighly respected DoD lawyer, who later became a judge on the International Court of Justice.
Citation to a particular source should not be interpreted to mean that the cited source2represents an official DoD position, or to be an endorsement of the source in its entirety. For
example, parts of a source, such as an opinion by the International Court of Justice or acommentary published by the International Committee of the Red Cross, may reflect the DoD
legal interpretation, while other parts of the source may not. Similarly, the citation of thejurisprudence of the Inter-American Commission on Human Rights should not be understood toindicate that the United States has accepted the competence of the Inter-American Commission
on Human Rights to apply the law of war. 2
1.2.2.2 Use of Older Sources. Older sources are sometimes cited: (1) becausethat source is particularly influential; (2) to demonstrate the origin of a legal proposition; or (3)to illustrate that a particular rule or formulation has a long history.
The citation of an older source should not necessarily be interpreted as an endorsementthat every aspect of that source remains current law. For example, the Lieber Code is a
canonical law of war document for the United States, but parts of it no longer reflect current
law. 3 Moreover, an older document produced by a State does not necessarily reflect its current
legal views. For example, the 1958 UK Manual, although a particularly influential law of war
manual prepared by distinguished experts Hersch Lauterpacht and Gerald Draper, has beensuperseded by subsequent UK Manuals, which reflect more recent developments in the law for
the United Kingdom (e.g., its ratification of AP I).
1.2.2.3 Quotes Provided From Sources. Quotes from sources are sometimes
given in parentheticals within footnotes. These parentheticals are provided to help practitioners,
such as by facilitating comparison between the main text of the manual and the language used in
the sources. Every effort has been made to quote sources accurately. Practitioners, however,should verify quotations using the original source.
Certain formatting rules have been followed for quoted material. Two spaces have beenplaced after each period ending a sentence. Footnote numbers and carriage returns have been
omitted from quoted text. Otherwise, quotes have not been changed unless noted through the useof ellipses, brackets, or parentheticals after the quotes indicating the changes made.
1.2.2.4 Citation of Policies and Regulations. Policies and regulations of the U.S.
Government or particular DoD components are sometimes cited as examples of past practice.
This manual, however, seeks primarily to address the law and not to address applicable
U.S. Government or DoD policies or regulations. Many policies and regulations are notaddressed in this manual, and the discussion of some policies, where relevant, should not be
understood to indicate that other pertinent policies or regulations do not exist. Moreover,policies and regulations are constantly updated, so practitioners are advised to ascertain whether
2See, e.g., U.S. Additional Response to the Request for Precautionary Measures—Detention of Enemy Combatants
at Guantanamo Bay, Cuba, Inter-American Commission on Human Rights, Jul. 15, 2002, 2002 DIGEST OF UNITEDSTATES PRACTICE IN INTERNATIONAL LAW 1008, 1009 (“Put simply, the Commission’s jurisdiction does not include
the application of the law of armed conflict, the lex specialis governing the status and treatment of persons detained
during armed conflict.”).
3

Refer to § 19.3 (Lieber Code).

3

more recent versions of cited policies and regulations have been issued.
In some cases, cancelled issuances or superseded policies or regulations are cited to show
the past practice, and, at times, a series of issuances are cited to illustrate a continuity in practice.
Policies and regulations often exceed the requirements of applicable law, and the mere
citation of a policy or regulation in this manual should not be understood to reflect the view thatthe policy or regulation’s requirements have been promulgated out of a sense of legal obligation
for the purposes of assessing customary international law or otherwise intending to reflect legal
requirements.
1.2.2.5 Citation Forms. An effort has been made to make citations forms
consistent throughout the manual, and to provide enough information about each cited source toreflect its significance and to enable readers to find it. 4 This manual has not strictly adhered toan established system of citation. Although certain citation systems were consulted,
modifications were made as deemed appropriate for this type of resource, to make the citation
forms straightforward and simple and relatively easy for readers to understand. In regard toabbreviations, for example, this manual generally does not abbreviate the names of academic
journals. Moreover, it is hoped that the quotations from the cited sources that have been
included in footnotes will help readers find the cited sources electronically.
1.2.3 Use of Cross-References in This Manual. This manual uses cross-references in thefootnotes to point the reader to other sections of the manual containing relevant discussion of aparticular topic. In particular, an effort has been made to use cross-references rather than torepeat discussion of a recurring issue or duplicate citation of legal sources. In sections in whicha law of war rule is only mentioned tangentially or as an example, a cross-reference is used todirect the reader to the section of the manual in which a more in-depth discussion of that rule andsupporting sources are provided. 5
Cross-references are linked to enable the reader to access the referenced section quickly.

4

Cf. Richard A. Posner, The Bluebook Blues (reviewing Harvard Law Review Association, The Bluebook: A
Uniform System of Citation (19th ed., 2010)), THE YALE LAW JOURNAL 850, 852 (2011) (“A system of citation
forms has basically two functions: to provide enough information about a reference to give the reader a general ideaof its significance and whether it’s worth looking up, and to enable the reader to find the reference if he decides that
he does want to look it up. In Goodbye to the Bluebook I suggested four principles to guide the design of such asystem: ‘to spare the writer or editor from having to think about citation form,’ ‘to economize on space and thereader's time,’ ‘to provide information to the reader,’ and ‘to minimize distraction.’”).
5

Refer to § 1.2.1 (Use of Footnotes in This Manual).

4

1.2.4 Use of Signals in This Manual. This manual uses signals to introduce the sources
and cross-references in the footnotes. The table below identifies the signals used in this manual,describes their function, and provides examples of their use.
SignalFunction and Examples of Use[nosignal]Directly states the proposition
If a person joins a levée en masse, he or she may be held as a POW even if he or she
actually took no part in fighting.1
1

1958 UK MANUAL ¶100 (“If it is shown that they joined the levée en masse, but took
no part in the defence, they may be held as prisoners of war.”).

Identifies the source of a quotation
As the Supreme Court has explained: “Lawful combatants are subject to capture anddetention as prisoners of war by opposing military forces.”22

Ex parte Quirin, 317 U.S. 1, 31 (1942).

Identifies an authority referred to in the text
There are additional provisions of the CCW Amended Mines Protocol addressing
international exchanges of information and cooperation in this respect.3
3

See

CCW AMENDED MINES PROTOCOL art. 11.

Clearly supports the proposition but does not directly state it
In addition, observers on military reconnaissance aircraft have not been regarded as
acting clandestinely or under false pretenses.4
4

See HAGUE IV REG. art. 29 (“Persons sent in balloons for the purpose of carrying
despatches and, generally, of maintaining communications between the different parts ofan army or a territory” are not considered spies.).
See also

Elaborates on the proposition
This means that a combatant’s “killing, wounding, or other warlike acts are notindividual crimes or offenses.”55LIEBER CODE art. 57. See also WINTHROP, MILITARY LAW & PRECEDENTS 778 (“TheState is represented in active war by its contending army, and the laws of war justify thekilling or disabling of members of the one army by those of the other in battle or hostile
operations.”).

5

Signal

Function and Examples of Use

Cf.

Supports the proposition by analogy, i.e., discusses a different proposition that is sufficiently
similar to support the original proposition
A person must engage in acts of espionage in the zone of operations of a belligerent to beconsidered a spy. “Zone of operations” has been construed broadly to include areas
supporting the war effort.6
6

Cf. Ex parte Quirin, 317 U.S. 1, 37 (1942) (“The law of war cannot rightly treat thoseagents of enemy armies who enter our territory, armed with explosives intended for thedestruction of war industries and supplies, as any the less belligerent enemies than areagents similarly entering for the purpose of destroying fortified places or our Armed
Forces.”).
Refer toRefers to another manual section that supports or elaborates on the proposition
Certain categories of persons are not members of the armed forces, but are nonethelessauthorized to support the armed forces in the fighting:• persons authorized to accompany the armed forces, but who are not members
thereof;77CompareRefer to § 4.15 (Persons Authorized to Accompany the Armed Forces).

Refers to another manual section that is analogous to the proposition
Persons authorized to accompany the armed forces who provide security against criminal
elements generally would not be viewed as taking a direct part in hostilities (and do not
forfeit their protection from being made the object of attack).269
269

ConsiderCompare § 4.23.1 (Police as Civilians).

Identifies a treaty that relates to the proposition but to which the United States is not a Party(e.g., AP I)
Under international law, every treaty in force is binding upon the Parties to it and mustbe performed by them in good faith.10
10

Consider VCLT art. 26 (“Every treaty in force is binding upon the parties to it andmust be performed by them in good faith.”).

6

Signal

Function and Examples of Use

Forexample,Illustrates the proposition with an example drawn from historical practice
Adjusting the timing of an attack may reduce the risk of incidental harm. For example,
attacking a military objective when civilians are less likely to be present may beappropriate.11
11

For example, Jennifer O’Connor, General Counsel, Department of Defense, Remarks
at New York University School of Law: Applying the Law of Targeting to the Modern
Battlefield, Nov. 28, 2016 (“Given the facts of this specific situation, including theintelligence that the cash was being used to pay ISIL fighters and conduct terrorist
operations, the targeting authority determined that the bulk cash was a legitimate military
objective. The next step then for the targeting authority before approving the strike wasto conduct a proportionality analysis. This bulk cash storage site happened to be in anarea where civilians were often present—as you might expect from a building that used
to be a civilian bank before ISIL turned it into a cash storage site. As a result of the highnumber of civilians in the area, the targeting authority took specific steps to minimize
potential harm to civilians by ordering the attack to occur at a time when the potential for
any civilian casualties was deemed to be the lowest.”); FINAL REPORT ON THE PERSIANGULF WAR 100 (noting that during Operation DESERT STORM “attacks on known dual
(i.e., military and civilian) use facilities normally were scheduled at night, because fewer
people would be inside or on the streets outside.”).
e.g.,

Added to any of the other signals when the cited authority is one of several authorities (someof which remain uncited) that stand for the same proposition
International humanitarian law is an alternative term for the law of war that may beunderstood to have the same substantive meaning as the law of war.12
12See, e.g., Overview of the Amendment to the Convention on the Physical Protection of
Nuclear Material, 6, Enclosure to Condoleezza Rice, Letter of Submittal, Jun. 11, 2007,
MESSAGE FROM THE PRESIDENT OF THE UNITED STATES TRANSMITTING AMENDMENT
TO THE CONVENTION ON THE PHYSICAL PROTECTION OF NUCLEAR MATERIAL (THE“AMENDMENT”). A CONFERENCE OF STATES PARTIES TO THE CONVENTION ON THE
PHYSICAL PROTECTION OF NUCLEAR MATERIAL, ADOPTED ON OCTOBER 28, 1979,
ADOPTED THE AMENDMENT ON JULY 8, 2005, AT THE INTERNATIONAL ATOMIC ENERGYAGENCY IN VIENNA, TREATY DOC. 110-6, 6 (2007) (“(2) The United States of America
understands that the term ‘international humanitarian law’ in Paragraph 5 of theAmendment (Article 2 of the Convention on the Physical Protection of Nuclear Material,as amended) has the same substantive meaning as the law of war.”).

1.3 DEFINITION OF THE LAW OF WAR
For the purposes of this manual, the law of war is that part of international law that
regulates the resort to armed force; the conduct of hostilities and the protection of war victims inboth international and non-international armed conflict; belligerent occupation; and the7relationships between belligerent, neutral, and non-belligerent States. 6
For the purposes of this manual, the law of war comprises treaties and customaryinternational law applicable to the United States. 7
1.3.1 Law of War – Notes on Terminology.
1.3.1.1 Different Definitions of the Law of War. The law of war may be definedslightly differently in other publications. For example, DoD issuances have defined the law of
war more narrowly than the definition discussed in this section (e.g., by omitting reference tothat part of international law that regulates the resort to armed force). 8
1.3.1.2 Law of War Versus International Humanitarian Law and Law of Armed
Conflict. The law of war is often called the law of armed conflict. Both terms can be found in
DoD directives and training materials. International humanitarian law is an alternative term forthe law of war that may be understood to have the same substantive meaning as the law of war. 9
In other cases, international humanitarian law is understood more narrowly than the law of war(e.g., by understanding international humanitarian law not to include the law of neutrality). 10
6

Refer to § 3.2 (Situations to Which the Law of War Applies).

7

Refer to § 1.7 (Treaties); § 1.8 (Customary International Law).

8

For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, 14 (Aug. 19, 2014) (“law of war. The part ofinternational law that regulates the conduct of hostilities and the protection of victims of armed conflict in bothinternational and non-international armed conflict and occupation, and that prescribes the rights and duties ofneutral, non-belligerent, and belligerent states. It is often called the ‘law of armed conflict’ or ‘international
humanitarian law,’ and is specifically intended to address the circumstances of armed conflict. It encompasses all
international law applicable to the conduct of military operations in armed conflicts that is binding on the UnitedStates or its individual citizens, including treaties and international agreements to which the United States is a party(e.g., the Geneva Conventions of 1949), and applicable customary international law.”); DOD DIRECTIVE 2311.01E,
DoD Law of War Program, ¶3.1 (May 9, 2006, Certified Current as of Feb. 22, 2011) (“Law of War. That part ofinternational law that regulates the conduct of armed hostilities. It is often called the ‘law of armed conflict.’ The
law of war encompasses all international law for the conduct of hostilities binding on the United States or its
individual citizens, including treaties and international agreements to which the United States is a party, andapplicable customary international law.”).
9

See, e.g., Overview of the Amendment to the Convention on the Physical Protection of Nuclear Material, 6,
Enclosure to Condoleezza Rice, Letter of Submittal, Jun. 11, 2007, MESSAGE FROM THE PRESIDENT OF THE UNITEDSTATES TRANSMITTING AMENDMENT TO THE CONVENTION ON THE PHYSICAL PROTECTION OF NUCLEAR MATERIAL(THE “AMENDMENT”). A CONFERENCE OF STATES PARTIES TO THE CONVENTION ON THE PHYSICAL PROTECTION OF
NUCLEAR MATERIAL, ADOPTED ON OCTOBER 28, 1979, ADOPTED THE AMENDMENT ON JULY 8, 2005, AT THE
INTERNATIONAL ATOMIC ENERGY AGENCY IN VIENNA, TREATY DOC. 110-6, 6 (2007) (“(2) The United States ofAmerica understands that the term ‘international humanitarian law’ in Paragraph 5 of the Amendment (Article 2 of
the Convention on the Physical Protection of Nuclear Material, as amended) has the same substantive meaning as
the law of war.”); FRITS KALSHOVEN & LIESBETH ZEGVELD, CONSTRAINTS ON THE WAGING OF WAR: AN
INTRODUCTION TO INTERNATIONAL HUMANITARIAN LAW 11 (International Committee of the Red Cross, 3rd ed.,2001) (“The law of war nowadays is often referred to by a phrase better suited to express its object and purpose,such as ‘international humanitarian law applicable in armed conflict’ or ‘humanitarian law’ – we shall be using theseterms interchangeably, as we do with ‘war’ and ‘armed conflict’.”).
10

Christopher Greenwood, Historical Development and Legal Basis, in DIETER FLECK, THE HANDBOOK OF
HUMANITARIAN LAW IN ARMED CONFLICTS 9 (¶102) (1999) (“The term ‘international humanitarian law’ is ofrelatively recent origin and does not appear in the Geneva Conventions of 1949. … International humanitarian law

8

1.3.2 The Law of War’s Relationship to Other Bodies of Law. An issue that often
confronts law of war practitioners is the relationship of the law of war to other bodies of law,
especially when rules in those bodies of law may appear to conflict with rules reflected in thelaw of war. These apparent conflicts are often resolved by considering the principle that the lawof war is the lex specialis governing armed conflict. 11 How a law of war rule relates to aparticular rule that is not grounded in the law of war may depend on the specific legal rule inquestion.
In general, the law of war may relate to other bodies of law through: (1) law of war rules
superseding rules in other bodies of law with respect to armed conflict; (2) construing the rules inother bodies of law to avoid conflict with law of war rules; (3) law of war rules informing thecontent of general standards in other bodies of law, should such standards be construed to apply
to armed conflict; and (4) law of war treaties explicitly incorporating concepts from other bodies
of law.
In some cases, it may be difficult to distinguish between these approaches, and different
entities may apply different approaches to achieve the same result. 12 Although there are different
approaches and although the ultimate resolution may depend on the specific rules and context,
the law of war, as the lex specialis of armed conflict, is the controlling body of law with regard
to the conduct of hostilities and the protection of war victims. 13
1.3.2.1 The Law of War as the Lex Specialis Governing Armed Conflict. The
maxim lex specialis derogat legi generali means that “[a]s a rule the special rule overrides thethus includes most of what used to be known as the laws of war, although strictly speaking some parts of those laws,
such as the law of neutrality, are not included since their primary purpose is not humanitarian.”).
11

See, e.g., Mary McLeod, Acting Legal Adviser, Department of State, Opening Statement at 53rd Session of the
U.N. Committee Against Torture, Nov. 3 – 28, 2014, Nov. 12, 2014 (noting that “the law of armed conflict is thecontrolling body of law with respect to the conduct of hostilities and the protection of war victims,”); U.S.
Delegation to U.N. General Assembly Third Committee, Statement Clarifying Legal Points of Importance, 2004
DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 331 (“Third, with respect to [preambular paragraph(‘PP’)] 4 and PP6, references to human rights law during armed conflict by necessity refer only to those provisions,
if any, that may be applicable. As may be well known, it is the position of the United States Government that the
Law of War is the lex specialis governing armed conflict.”) (amendment in original).
12
Report of the International Law Commission, Fifty-sixth session (3 May-4 June and 5 July-6 August 2004), U.N.
Doc. A/59/10 ¶304 (2004) (“In introducing the part of the study concerning the function and scope of the lex
specialis rule, the Chairman stressed several points. First, he emphasized that recourse to the lex specialis rule wasan aspect of legal reasoning that was closely linked to the idea of international law as a legal system. The lex
specialis maxim sought to harmonize conflicting standards through interpretation or establishment of definite
relationships of priority between them. In fact, he said, it was often difficult to distinguish between these two
aspects of the functioning of the technique: the interpretation of a special law in the light of general law, and thesetting aside of the general law in view of the existence of a conflicting specific rule. … The adoption of a systemic
view was important precisely in order to avoid thinking of lex specialis in an overly formal or rigid manner. Its
operation was always conditioned by its legal-systemic environment.”).
13

Observations of the United States of America on the Human Rights Committee’s Draft General Comment 35:
Article 9, June 10, 2014, ¶20 (“While the United States acknowledges that difficult questions arise regarding theapplicability of international human rights law in situations of armed conflict, the draft does not accord sufficientweight to the well-established principle that international humanitarian law, as the lex specialis of armed conflict, isthe controlling body of law with regard to the conduct of hostilities and the protection of war victims.”).

9

general law.” 14 The rule that is more specifically directed towards the action receives priority
because it takes better account of the particular features of the context in which the law is to be
applied, thus creating a more equitable result and better reflecting the intent of the authorities
that have made the law. 15
The law of war has been developed with special consideration of the circumstances of
war and the challenges inherent in its regulation by law. Thus, for example, the exigencies ofarmed conflict cannot justify violating the law of war. 16 Moreover, lawmakers sometimes haveconsidered peacetime rules appropriate to apply during armed conflict, and in certain of thesecases, they have explicitly incorporated such concepts into the law of war. 17
Thus, traditionally, the law of war has been described as the only “authoritative rules ofaction between hostile armies,” or as superseding ordinary law in the actual theater of military
operations. 18 Similarly, law of war treaties have been viewed as a clear example of a lex
specialis in relation to treaties providing peacetime norms concerning the same subjects. 19
1.3.2.2 Construing Other Laws to Avoid Conflict With the Law of War. Potential
14

Colleanu v. German State, German-Rumanian Mixed Arbitral Tribunal, Jan. 12, 1929, reprinted in H.
LAUTERPACHT, V INTERNATIONAL LAW REPORTS 438 (1929). See also GROTIUS, LAW OF WAR & PEACE 428(2.16.29.1) (“[A]mong agreements which are equal in respect to the qualities mentioned, that should be given
preference which is most specific and approaches most nearly to the subject at hand; for special provisions are
ordinarily more effective than those that are general”).
15

U.N. International Law Commission, Conclusions of the work of the Study Group on the Fragmentation ofInternational Law: Difficulties arising from the Diversification and Expansion of International Law 2(7) (2006)(“Rationale of the principle. That special law has priority over general law is justified by the fact that such speciallaw, being more concrete, often takes better account of the particular features of the context in which it is to be
applied than any applicable general law. Its application may also often create a more equitable result and it may
often better reflect the intent of the legal subjects.”).
16

Refer to § 2.2.2 (Military Necessity and Law of War Rules).

17

Refer to § 1.3.2.4 (Explicit Incorporation of Concepts From Other Bodies of Law Into the Law of War).

18

See LIEBER CODE art. 40 (“There exists no law or body of authoritative rules of action between hostile armies,
except that branch of the law of nature and nations which is called the law and usages of war on land.”). See also
WINTHROP, MILITARY LAW & PRECEDENTS 773-74 (“By the term LAW OF WAR is intended that branch ofInternational Law which prescribes the rights and obligations of belligerents, or—more broadly—those principles
and usages which, in time of war, define the status and relations not only of enemies—whether or not in arms—but
also of persons under military government or martial law and persons simply resident or being upon the theatre ofwar, and which authorizes their trial and punishment when offenders. Unlike Military Law Proper, the Law of War
in this country is not a formal written code, but consists mainly of general rules derived from International Law,
supplemented by acts and orders of the military power and a few legislative provisions. In general it is quite
independent of the ordinary law. ‘On the actual theatre of military operations,’ as is remarked by a learned judge,‘the ordinary laws of the land are superseded by the laws of war. The jurisdiction of the civil magistrate is there
suspended, and military authority and force are substituted.’ Finding indeed its original authority in the war powersof Congress and the Executive, and thus constitutional in its source, the Law of War may, in its exercise,
substantially supersede for the time even the Constitution itself –as will be hereinafter indicated.”).
19

C. Wilfred Jenks, The Conflict of Law-Making Treaties, 30 BRITISH YEARBOOK OF INTERNATIONAL LAW 401, 446(1953) (“A clear illustration of [the lex specialis principle’s] applicability is afforded by instruments relating to thelaws of war which, in the absence of evidence of a contrary intention or other special circumstances, must clearly be
regarded as a leges speciales in relation to instruments laying down peace-time norms concerning the same
subjects.”).

10

conflicts between the law of war and other law may be resolved by construing such other law to
avoid conflict with law of war rules.
Underlying this approach is the fact that the law of war is firmly established in customaryinternational law as a well-developed body of law that is separate from the principles of law
generally applicable in peace. 20 Lawmakers have been understood not to amend that welldeveloped body of law, absent affirmative evidence of an intention to do so. 21 In a similar
fashion, for comparison, the GC deliberately excludes from its application the nationals ofcertain States in order to avoid creating complications or inconsistencies in procedures shouldboth the GC and the law applicable to normal diplomatic representation apply. 22
In some cases, treaties explicitly clarify that they do not affect States’ rights under thelaw of war. 23 For example, the 1944 Chicago Convention on civil aviation explicitly provides
that it does not affect the freedom of action of States during armed conflict. 24 However, evenwhen not explicitly stated, infringements on the law of war through international agreements thatprimarily address situations other than armed conflict are not to be presumed. 25 For example, the20

Edwin D. Williamson, Agent of the United States of America, Preliminary Objections Submitted by the UnitedStates of America, Case Concerning the Aerial Incident of 3 July 1988, I.C.J. (Iran v. United States), 200-01 (Mar. 4,1991) (“The laws of armed conflict are firmly established in customary international law as a well-developed bodyof law separate from the principles of law generally applicable in times of peace.”).
21

See, e.g., Case Concerning Oil Platforms (Iran v. United States), Preliminary Objection, Judgment,1996 I.C.J.
874, 876 (Dissenting Opinion of Vice-President Schwebel) (“It is plain that this is a Treaty which is essentiallyconcerned with encouraging mutually beneficial trade and investments and closer economic intercourse on the basisof reciprocal equality of treatment. There is no suggestion of regulating the use of armed force by one party against
the other. … None of these core provisions of the Treaty suggests that attacks by armed forces of one party against
what it treats as military objectives within the jurisdiction of the other party are within the reach of the Treaty. It issignificant as well that the Treaty contains none of the treaty provisions which typically do bear on the internationaluse of force.”); Written Statement of the Government of the United States of America, 34, Jun. 20, 1995, I.C.J.,
Request by the United Nations General Assembly for an Advisory Opinion on the Legality of the Threat or Use of
Nuclear Weapons (“No international environmental instrument is expressly applicable in armed conflict. No such
instrument expressly prohibits or regulates the use of nuclear weapons. Consequently, such an international
environmental instrument could be applicable only by inference. Such an inference is not warranted because noneof these instruments was negotiated with the intention that it would be applicable in armed conflict or to any use of
nuclear weapons. Further, such an implication is not warranted by the textual interpretation of these instruments.”);Edwin D. Williamson, Agent of the United States of America, Preliminary Objections Submitted by the UnitedStates of America, Case Concerning the Aerial Incident of 3 July 1988, I.C.J. (Iran v. United States), 207 (Mar. 4,1991) (“When, 14 years later, the ICAO Assembly drafted Article 3 bis of the Chicago Convention, discussed
above, it was careful to include in the Article a statement that it ‘should not be interpreted as modifying in any way
the rights and obligations of States set forth in the Charter of the United Nations;’ which included the inherent rightof self-defense. The participants at the Montreal conference would have included a similar provision if they had
intended the Montreal Convention to modify the laws of armed conflict, and particularly if they had intended toaddress actions by military forces in armed conflict. There is no such provision in the Montreal Convention.”).
22

Refer to § 10.3.3.3 (Nationals of a Neutral State or Co-Belligerent State While Normal Diplomatic Representation
Exists).
23

See, e.g., Convention on the Protection of Submarine Cables, art. 15, Mar. 14, 1884, 24 STAT. 989, 997 (“It is
understood that the stipulations of this Convention shall in no wise affect the liberty of action of belligerents.”).

24

Refer to § 14.1.1.1 (1944 Chicago Convention and Freedom of Action of States During Armed Conflict).

25

Edwin D. Williamson, Agent of the United States of America, Preliminary Objections Submitted by the UnitedStates of America, Case Concerning the Aerial Incident of 3 July 1988, I.C.J. (Iran v. United States), 203 (Mar. 4,

11

LOS Convention has been interpreted not to impair a State’s rights during armed conflict, eventhough this principle is not explicitly stated in the treaty. 26 In addition, the International
Convention for the Suppression of the Financing of Terrorism has been understood not topreclude any State Party to the Convention from conducting any legitimate activity against any
lawful target in accordance with the law of armed conflict. 27
In addition to treaties, domestic statutes have also been construed not to violate
international law, including the law of war, if any other construction remains possible. 28 Certain
domestic statutes have been interpreted not to apply to situations addressed by the law of war
because such intention was not made clear and unequivocal. 29

1991) (“Infringements on the laws of armed conflict through international agreements primarily addressing
situations other than armed conflict are not to be presumed. There is no indication that the drafters of the Montreal
Convention intended it to apply to military forces acting in armed conflict. If they had so intended, they would have
had to address a myriad of issues relating to acts by military forces.”); The S.S. Wimbledon, (United Kingdom,France, Japan v. Germany), Judgment (MM. Anzilotti and Huber, dissenting), 1923 P.C.I.J. (series A) 1, 35, 36 (¶3)(“In this respect, it must be remembered that international conventions and more particularly those relating tocommerce and communications are generally concluded having regard to normal peace conditions. If, as the resultof a war, a neutral or belligerent State is faced with the necessity of taking extraordinary measures temporarily
affecting the application of such conventions in order to protect its neutrality or for the purposes of national defence,
it is entitled to do so even if no express reservations are made in the convention. This right possessed by all nations,which is based on generally accepted usage, cannot lose its raison d’être simply because it may in some cases havebeen abused;”).
26

Refer to § 13.1.1 (The Law of the Sea During Armed Conflict).

27

United States, Statement on Ratification of International Convention for the Suppression of the Financing
Terrorism, Jun. 26, 2002, 2185 UNTS 611, 612 (“(1) Exclusion of legitimate activities against lawful targets. The
United States of America understands that nothing in the Convention precludes any State Party to the Convention
from conducting any legitimate activity against any lawful target in accordance with the law of armed conflict.”).
28

The Charming Betsy, 6 U.S. 64, 118 (1804) (Marshall, C.J.) (“It has also been observed that an act of Congress
ought never to be construed to violate the law of nations if any other possible construction remains, andconsequently can never be construed to violate neutral rights or to affect neutral commerce further than is warrantedby the law of nations as understood in this country. These principles are believed to be correct, and they ought to be
kept in view in construing the act now under consideration.”).
29

See, e.g., Walter Dellinger, Assistant Attorney General, United States Assistance to Countries that Shoot Down
Civil Aircraft Involved in Drug Trafficking, Jul. 14, 1994, 18 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 148, 16364 (“Specifically, we believe that the section would not apply to the actions of United States military forces acting
on behalf of the United States during a state of hostilities. As discussed above, § 32(b)(2) was intended to
implement the United States’s obligations under the Montreal Convention. That Convention does not appear to
apply to acts of armed forces that are otherwise governed by the laws of armed conflict. … We do not think that
§ 32(b)(2) should be construed to have the surprising and almost certainly unintended effect of criminalizing actions
by military personnel that are lawful under international law and the laws of armed conflict. We note specificallythat the application of § 32(b)(2) to acts of United States military personnel in a state of hostilities could readily lead
to absurdities: for example, it could mean in some circumstances that military personnel would not be able toengage in reasonable self-defense without subjecting themselves to the risk of criminal prosecution. Unless
Congress by a clear and unequivocal statement declares otherwise, § 32(b)(2) should be construed to avoid suchoutcomes. Thus, we do not think the statute, as written, should apply to such incidents as the downing on July 3,
1988 of Iran Air Flight 655 by the United States Navy cruiser Vincennes.”); France Biddle, Attorney General,
Procurements by Commanding Generals in Foreign Theaters of Operations, Nov. 12, 1942, 40 OPINIONS OF THE
ATTORNEY GENERAL 250, 253 (1949) (“The statutes in question do not expressly declare that their provisions areinapplicable to foreign theaters of operations. But there are conclusive reasons for inferring that the Congress did
not intend them to apply to such theaters. The Supreme Court has long recognized that the power to conduct12

1.3.2.3 Using the Law of War to Determine the Content of General Standards if
Applied to Armed Conflict. Another way in which the law of war has been applied as lex
specialis is to determine the content of a more general standard with respect to the situation ofarmed conflict. For example, the law of war has been used to inform the content of generalauthorizations to conduct military operations. 30
As another example, to the extent that the concept of “due regard” for the safety of civil
aircraft may be deemed to apply during armed conflict, what regard is due would be understoodin terms of the requirements of the law of war. 31 Similarly, to the extent that the concept of “dueregard” for the rights of other States under the law of the sea may be deemed to apply during
armed conflict, what regard is due would be understood in terms of the requirements of the lawof war. 32
Lastly, even where international courts or commissions have characterized human rights
obligations as applicable during armed conflict, they generally have characterized the content of
those obligations as determined by standards and tests drawn from the law of war. 33
1.3.2.4 Explicit Incorporation of Concepts From Other Bodies of Law Into the
Law of War. In some cases, law of war treaties explicitly incorporate concepts from other bodies
of law. For example, the peacetime property law concept of usufruct is made applicable to theduties of the Occupying States. 34 Similarly, the GC explicitly applies a peacetime rule withrespect to the nationals of the Occupying Power who, before the outbreak of hostilities, havesought refuge in the occupied territory. 35 And as another example, Common Article 3 of the1949 Geneva Conventions incorporates by reference those judicial guarantees that are

military campaigns includes power to procure needed supplies in theaters of operations by whatever methods are
dictated by military necessity. Property may be taken summarily, even from a citizen, if military exigencies makeits seizure reasonably appear to be necessary. It is unthinkable that the Congress attempted, by statutory restrictions,to abrogate this rule of military necessity, to handicap commanding generals waging war on foreign soil, to limit or
encroach upon the power of the President as Commander in Chief to conduct, through his subordinates, military
campaigns abroad.”) (internal citations omitted).
30

Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004) (plurality) (“In light of these principles, it is of no moment that the
AUMF does not use specific language of detention. Because detention to prevent a combatant’s return to thebattlefield is a fundamental incident of waging war, in permitting the use of ‘necessary and appropriate force,’
Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.”). See
also In re Guantanamo Bay Litigation, Respondents’ Memorandum Regarding the Government’s Detention
Authority Relative to Detainees Held at Guantanamo Bay, Misc. No. 08-442, 4 (D.D.C., Mar. 13, 2009) (“TheUnited States bases its detention authority as to such persons on the Authorization for the Use of Military Force(‘AUMF’), Pub. L. 107-40, 115 Stat. 224 (2001). The detention authority conferred by the AUMF is necessarily
informed by principles of the laws of war.”).
31

Refer to § 14.1.1.4 (Due Regard for the Safety of Navigation of Civil Aircraft).

32

Refer to § 13.1.1 (The Law of the Sea During Armed Conflict).

33

Refer to § 1.6.3.1 (Relationship Between Human Rights Treaties and the Law of War).

34

Refer to § 11.18.5.2 (Public Real (Immovable) Property That Is Essentially of a Non-Military Nature).

35

Refer to § 11.11.7.2 (Protection of Nationals of the Occupying Power Who, Before the Outbreak of Hostilities,
Have Sought Refuge in the Territory of the Occupied State).

13

recognized as indispensable by civilized peoples. 36
1.3.3 Restrictive and Permissive Character of the Law of War. In certain respects, the lawof war may be viewed as prohibitive; in other respects, the law of war may be viewed aspermissive. 37
1.3.3.1 Law of War as Prohibitive Law. The law of war that relates to the conductof hostilities has generally been viewed as “prohibitive law,” in the sense that it forbids rather
than authorizes certain uses of force. 38 For example, the lawfulness of the use of a type of
weapon does not depend on an absence of authorization, but, on the contrary, on whether theweapon is prohibited. 39
One rationale for this view is that the rules binding upon States in treaties and customary
law reflect restrictions that they have accepted, and that States are otherwise independent entities
with freedom to act. 40 Thus, the authority to take actions under the law of war would be viewed
as emanating from the State’s rights as a sovereign entity rather than from any particular
instrument of international law.
The prohibitive character of the law of war that relates to the conduct of hostilities is also
consistent with the view that jus in bello applies to aggressors and defenders alike. The fact thatan aggressor complies with jus in bello does not justify the legality of its military operations
under jus ad bellum. 41
The lack of an express prohibition in treaty law, however, does not necessarily mean that36

Refer to § 8.16 (Criminal Procedure and Punishment).

37

VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 5 (“Throughout the pages of this study a basic fact willappear repeatedly: the laws of war, including the rules applicable to belligerent occupation, are in part permissive
and in part prohibitive—a fact that has been overlooked frequently in treatments of the subject.”).

38

See Richard R. Baxter, So-Called ‘Unprivileged Belligerency’: Spies, Guerillas, and Saboteurs, 28 BRITISH YEAR
BOOK OF INTERNATIONAL LAW 323, 324 (1951) (“The law of war is, in the descriptive words of a war crimes
tribunal, ‘prohibitive law’ in the sense that it forbids rather than authorizes certain manifestations of force.”)(quoting United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1252);
Gherebi v. Obama, 609 F. Supp. 2d 43, 65 (D.D.C. 2009) (rejecting as “exactly backwards” the “notion that the
Geneva Conventions must specifically enable its signatories to act in a specific manner for a signatory to have theauthority necessary to take such action.”); JOHN WESTLAKE, II INTERNATIONAL LAW 52 (1907) (“These rules arealways restrictive, never permissive in any other sense than that of the absence of prohibition, for law can give no
positive sanction to any act of force of which it cannot secure the employment on the side of justice alone, even if
the particular act be not one which the law would prohibit both to the just and to the unjust if it could. Whenever
therefore in speaking of the laws of war it is said that a belligerent may do this or that, it is always only the absenceof prohibition that must be understood.”).
39

Refer to § 6.2.1 (Review of New Types of Weapons).

40

The S.S. Lotus, (France v. Turkey) (Judgment), 1927 P.C.I.J. (series A) No. 10, at 18 (“International law governs
relations between independent States. The rules of law binding upon States therefore emanate from their own free
will as expressed in conventions or by usages generally accepted as expressing principles of law and established inorder to regulate the relations between these co-existing independent communities or with a view to the achievementof common aims. Restrictions upon the independence of States cannot therefore be presumed.”).
41

Refer to § 3.5.2 (Jus in Bello and Jus ad Bellum Generally Operate Independently of One Another).

14

an action is lawful under jus in bello. When no specific rule applies, the principles of the law of
war form the general guide for conduct during war. 42
1.3.3.2 Law of War as Permissive Law. Although the law of war is generally
viewed as “prohibitive law,” in some respects, especially in the context of domestic law, the lawof war may be viewed as permissive or even as a source of authority. 43
For example, the principle of military necessity in the customary law of war may beviewed as justifying or permitting certain acts. 44 Similarly, under the law of belligerent
occupation, the fact of occupation is the basis for the Occupying Power to exercise authority over
the occupied territory. 45 In addition, law of war treaties also sometimes recognize States’
authorities in war. 46
1.3.4 Purposes of the Law of War. The main purposes of the law of war are:42•

protecting combatants, noncombatants, and civilians from unnecessary suffering; 47•

providing certain fundamental protections for persons who fall into the hands of theenemy, particularly prisoners of war, civilians, and military wounded, sick, andshipwrecked; 48•

facilitating the restoration of peace; 49•

assisting military commanders in ensuring the disciplined and efficient use of military

Refer to § 2.1.2.2 (Law of War Principles as a General Guide).

43

See, e.g., Eric Holder, Attorney General, Remarks at Northwestern University School of Law, Mar. 5, 2012, 2012
DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 577, 581 (“It is preferable to capture suspected
terrorists where feasible—among other reasons, so that we can gather valuable intelligence from them—but we mustalso recognize that there are instances where our government has the clear authority—and, I would argue, theresponsibility—to defend the United States through the appropriate and lawful use of lethal force. This principle haslong been established under both U.S. and international law. In response to the attacks perpetrated—and thecontinuing threat posed—by al Qaeda, the Taliban, and associated forces, Congress has authorized the President touse all necessary and appropriate force against those groups. Because the United States is in an armed conflict, weare authorized to take action against enemy belligerents under international law. The Constitution empowers the
President to protect the nation from any imminent threat of violent attack. And international law recognizes theinherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war.”).
44

Refer to § 2.2.1 (Military Necessity as a Justification).

45

Refer to § 11.2.1 (Military Occupation as a Fact).

46

See, e.g., GPW art. 21 (recognizing that “[t]he Detaining Power may subject prisoners of war to internment.”);HAGUE IV REG. art. 24 (recognizing that “[r]uses of war and the employment of measures necessary for obtaining
information about the enemy and the country are considered permissible.”).
47

Refer to § 2.3 (Humanity).

48

Refer to § 7.5 (Humane Treatment and Care of Enemy Military Wounded, Sick, and Shipwrecked in the Power ofa Party to the Conflict); § 8.2 (Humane Treatment of Detainees); § 9.5 (Humane Treatment and Basic Protections
for POWs); § 10.5 (Humane Treatment and Other Basic Protections for Protected Persons).
49

Refer to § 12.1.2.2 (Non-Hostile Relations to Facilitate the Restoration of Peace).

15

force; 50 and•preserving the professionalism and humanity of combatants. 51

1.4 OBJECT AND NATURE OF WAR
Understanding the object and nature of war is important in understanding and applying
the law of war. 52
1.4.1 Object of War. The object of war has been understood to be the submission of theenemy as quickly and efficiently as possible. 53 The military defeat of the enemy in war isintended to advance political objectives. 54 Even where those political objectives are limited, theobject of war is nonetheless to ensure the submission of the enemy as quickly and efficiently as
possible. 55

50

Refer to § 18.2.1 (Reinforcing Military Effectiveness).

51

Refer to § 2.6 (Honor).

52

DEPARTMENT OF THE ARMY PAMPHLET 27-161-2, II International Law, 1 (Oct. 23, 1962) (“An understanding of
the laws of war necessitates an understanding of ‘war’ itself. It is the phenomenon of war which these laws areattempting in some manner to control.”). See also Adam Roberts, Land Warfare: From Hague to Nuremberg, in
MICHAEL HOWARD, GEORGE J. ANDREOPOULOUS, & MARK A. SHULMAN, THE LAWS OF WAR: CONSTRAINTS ON
WARFARE IN THE WESTERN WORLD 117 (1994) (“The laws of war are strange not only in their subject matter, which
to many people seems a contradiction in terms, but also in their methodology. There is little tradition of disciplined
and reasoned assessment of how the laws of war have operated in practice. Lawyers, academics, and diplomats haveoften been better at interpreting the precise legal meaning of existing accords, or at devising new law, than they havebeen at assessing the performance of existing accords or at generalizing about the circumstances in which they canor cannot work. In short, the study of law needs to be integrated with the study of history; if not, it is inadequate.”).
53

See 1940 RULES OF LAND WARFARE ¶22 (“The object of war is to bring about the complete submission of theenemy as soon as possible by means of regulated violence.”); 1914 RULES OF LAND WARFARE ¶10 (same).

54

George H. Aldrich, Deputy Legal Adviser, Department of State, Human Rights in Armed Conflict: Developmentof the Law, Apr. 13, 1973, 68 DEPARTMENT OF STATE BULLETIN, 876, 880 (Jun. 18, 1973) (“What we have seen is
all too clearly a general acceptance of the view that modern war is aimed not merely at the enemy’s military forces
but at the enemy’s willingness and ability to pursue its war aims. Thus, in the Second World War the enemy’s will
to fight and his capacity to produce weapons were primary targets; and saturation bombing, blockade of foodsupplies, and indiscriminate terror weapons such as the German V bombs, were all brought to bear on those targets.
In Viet-Nam political, rather than military, objectives were even more dominant. Both sides had as their goal not
the destruction of the other’s military forces but the destruction of the will to continue the struggle.”); United Statesv. von Leeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 485 (“War is theexerting of violence by one state or politically organized body against another. In other words, it is theimplementation of a political policy by means of violence.”); CARL VON CLAUSEWITZ, ON WAR 87 (1989) (“We see,
therefore, that war is not merely an act of policy but a true political instrument, a continuation of politicalintercourse, carried on with other means. What remains peculiar to war is simply the peculiar nature of its means.
War in general, and the commander in any specific instance, is entitled to require that the trend and designs of policy
shall not be inconsistent with these means. That, of course, is no small demand; but however much it may affectpolitical aims in a given case, it will never do more than modify them. The political object is the goal, war is themeans of reaching it, and means can never be considered in isolation from their purpose.”).
55
For example, General Colin L. Powell, Chairman of the Joint Chiefs of Staff, U.S. Forces: Challenges Ahead, 71
FOREIGN AFFAIRS 32, 37 (1992) (explaining that despite the limited political objectives of the 1991 Gulf War, theUnited States “did use overwhelming force quickly and decisively.”).

16

The object of war informs the principle of military necessity and what uses of force may
be justified in war. 56 Nevertheless, the law of war limits what uses of force the object of war
may justify. 57
1.4.2 Nature of War.
1.4.2.1 Nature of War – Violence and Suffering. War has been described as aviolent clash of interests characterized by the use of force. 58 The fact that violence is an essential
element of war has been viewed as important in understanding the nature of war. 59 The violent
nature of war has also meant that suffering has been an unfortunate and tragic, but unavoidableconsequence of war. 60
Law of war treaties such as the Hague and Geneva Conventions have been negotiatedwith the understanding that suffering and destruction are unavoidably part of war. 61 But these56

Refer to § 2.2.1 (Military Necessity as a Justification); § 2.2.3.1 (Consideration of the Broader Imperatives ofWinning the War).
57

Refer to § 2.2.2 (Military Necessity and Law of War Rules).

58

DEPARTMENT OF THE ARMY FIELD MANUAL 3-24, Counterinsurgency, 1-1 (¶1-1) (Dec. 2006) (“Insurgency andcounterinsurgency (COIN) are complex subsets of warfare. Globalization, technological advancement, urbanization,and extremists who conduct suicide attacks for their cause have certainly influenced contemporary conflict;however, warfare in the 21st century retains many of the characteristics it has exhibited since ancient times.
Warfare remains a violent clash of interests between organized groups characterized by the use of force. Achieving
victory still depends on a group’s ability to mobilize support for its political interests (often religiously or ethnically
based) and to generate enough violence to achieve political consequences. Means to achieve these goals are notlimited to conventional forces employed by nation-states.”); MARINE CORPS DOCTRINAL PUBLICATION 1,
Warfighting, 3 (Jun. 20, 1997) (explaining that war is “a violent clash of interests between or among organizedgroups characterized by the use of military force.”).
59

MARINE CORPS DOCTRINAL PUBLICATION 1, Warfighting, 14 (Jun. 20, 1997) (“War is among the greatest horrors
known to humanity; it should never be romanticized. The means of war is force, applied in the form of organizedviolence. It is through the use of violence, or a credible threat of violence, that we compel our enemy to do our will.
Violence is an essential element of war, and its immediate result is bloodshed, destruction, and suffering. While themagnitude of violence may vary with the object and means of war, the violent essence of war will never change.
Any study of war that neglects this basic truth is misleading and incomplete.”).
60

For example, Friedrich II, Letter to Lord Marischal, Nov. 23, 1758 reprinted in THOMAS CARLYLE, V HISTORY OF
FRIEDERICH II OF PRUSSIA: CALLED FREDERICK THE GREAT 386 (1865) (“Our Campaign is over; and there has
nothing come of it on one side or the other, but the loss of a great many worthy people, the misery of a great manypoor soldiers crippled forever, the ruin of some Provinces, the ravage, pillage and conflagration of some flourishingTowns. Exploits these, which make humanity shudder: … .”).
61

Edward R. Cummings, Acting Assistant Legal Adviser for Politico-Military Affairs, Remarks at Symposium at
Brooklyn Law School, Sept. 25, 1982, III CUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL
LAW 1981-88 3421, 3422 (“The Conventions referred to today, such as the Hague and Geneva Conventions, areimportant ones and are strongly supported by the United States. They have helped reduce the suffering caused bywars. But one should not ask the impossible of these agreements. They were not intended to make war ‘humane’ or
to ban war, or to make wars more difficult to fight. They were modestly intended to reduce the inhumanity andbarbarity of war when militarily possible. Anyone who has read the negotiating records of these old agreements willnote that they were largely negotiated by the military. In fact, the first agreement of this kind, the St. Petersburg
Declaration, was agreed to by a military commission. Unrealistic provisions which just would not be accepted or
respected in battle were not favored.”).

17

treaties and the principle of humanity seek to reduce unnecessary suffering and destruction. 62
1.4.2.2 Nature of War – Limited and Unreliable Information – “Fog of War”.
During war, information is often limited and unreliable. 63 The uncertainty of information in war
results from the chaotic nature of combat and from the opposing sides’ efforts to deceive one
another, which generally is not prohibited by the law of war. 64
The limited and unreliable nature of information available during war has influenced thedevelopment of the law of war. For example, it affects how the principle of military necessity isapplied. 65 The limited and unreliable nature of information available during war also isrecognized in the law of war’s standards for how persons are to assess information. 66
1.5 “WAR” AS A LEGAL CONCEPT“War” is sometimes used as a legal concept, i.e., the application or operation of a legal
rule may depend on the existence of a “war,” “armed conflict,” or “hostilities.” As a legal
concept, “war” has traditionally been viewed as a condition in which a State is prosecuting its
rights by military force, usually against another State. However, the precise definition of “war”
often depends on the specific legal context in which it is used.
1.5.1 Traditional Conception of War Under International Law. As international law
began to regulate “war,” “hostilities,” and “armed conflict,” it became necessary to determine
what “war” is for the purpose of triggering those legal obligations. 67
As a legal concept, war has usually been described as a condition or state that applies
more broadly than only the mere employment of force or the mere commission of acts of62

Refer to § 2.3 (Humanity).

63

See, e.g., United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1297(“The course of a military operation by the enemy is loaded with uncertainties, such as the numerical strength of theenemy, the quality of his equipment, his fighting spirit, the efficiency and daring of his commanders, and theuncertainty of his intentions.”); CARL VON CLAUSEWITZ, ON WAR 140 (1989) (“the general unreliability of all
information presents a special problem in war: all action takes place so to speak, in a kind of twilight, which likefog or moonlight, often tends to make things grotesque and larger than they really are.”).
64

Refer to § 5.25 (Ruses of War and Other Lawful Deceptions).

65

Refer to § 2.2.3 (Applying Military Necessity).

66

Refer to § 5.3 (Assessing Information Under the Law of War).

67

See, e.g., Arnold D. McNair, The Legal Meaning of War, and the Relation of War to Reprisals, 11 TRANSACTIONS
OF THE GROTIUS SOCIETY 29, 30 (1925) (“There exist many treaties and other international conventions under which
important obligations arise upon the occurrence of a state of ‘war,’ and as regards which, therefore, either because
the term ‘war’ or some other term connoting war, such as ‘neutrality,’ is used, it becomes essential to know whether
or not a state of war exists at a given point of time. Thus most of the Hague Conventions only come into operation
once a state of war has arisen—for instance, those relating to the Laws and Customs of War on Land, to the Rights
and Duties of Neutrals in Land and Maritime War respectively, to the Bombardment of Ports, Towns and Villages
by Naval Forces, and to the Status of Enemy Merchant Ships at the Outbreak of Hostilities.”).

18

violence. 68
When treated as a legal concept, “war” has been associated with a State’s use of force tovindicate its rights (principally, its inherent right of self-defense) under international law. 69
Traditionally, war has often been described as a legal condition between two or moreStates. 70 However, certain law of war rules apply to non-international armed conflicts (such as
intrastate conflicts or conflicts between a State and a non-State armed group). 71
1.5.2 Different Definitions of “War” for Different Legal Purposes. There is no single
legal definition of “war,” “hostilities,” or “armed conflict,” and the definition of these terms hasvaried in both domestic and international law.
In domestic law, “war,” “hostilities,” and “armed conflict” have been interpreted
differently depending on the specific legal context at issue. 72 For example, under the68

1956 FM 27-10 (Change No. 1 1976) ¶8 (“While it is usually accompanied by the commission of acts of violence,a state of war may exist prior to or subsequent to the use of force.”); VII MOORE’S DIGEST 153 (“Much confusion
may be avoided by bearing in mind the fact that by the term war is meant not the mere employment of force, but theexistence of the legal condition of things in which rights are or may be prosecuted by force.”); GROTIUS, LAW OF
WAR & PEACE 33 (1.1.2.1) (“war is the condition of those contending by force”).
69

SPAIGHT, AIR POWER AND WAR RIGHTS 2 (“War, after all, is only a means to an end. It is a way of settling aninternational difference which diplomacy has failed to adjust and which is not susceptible of treatment by the othermeans of pacific settlement, such as inquiry commissions, arbitration, or submission to the Permanent Court of The
Hague. When all else fails, there is no way in which a nation can assert its rights save by going to war. War is themeans by which it vindicates a vital right threatened or infringed by the claim or act of another State. Its object is tocause the other State to desist from the action or abandon the claim which is the cause of offence. In other words, a
war is fought in order to bring about a change of mind in another State.”); The Prize Cases, 67 U.S. 635, 666 (1863)(“War has been well defined to be, ‘That state in which a nation prosecutes its right by force.’”) (quoting EMERICH
DE VATTEL, DROIT DE GENS (LAW OF NATIONS) (1760)); LIEBER CODE art. 30 (“Ever since the formation andcoexistence of modern nations, and ever since wars have become great national wars, war has come to beacknowledged not to be its own end, but the means to obtain great ends of state, or to consist in defense against
wrong; and no conventional restriction of the modes adopted to injure the enemy is any longer admitted; but the lawof war imposes many limitations and restrictions on principles of justice, faith, and honor.”).
70

1956 FM 27-10 (Change No. 1 1976) ¶8a (“War may be defined as a legal condition of armed hostility between
States. While it is usually accompanied by the commission of acts of violence, a state of war may exist prior to or
subsequent to the use of force. The outbreak of war is usually accompanied by a declaration of war (see par. 20).
Instances of armed conflict without declaration of war may include, but are not necessarily limited to, the exercise ofarmed force pursuant to a recommendation, decision, or call by the United Nations, in the exercise of the inherent
right of individual or collective self-defense against armed attack, or in the performance of enforcement measuresthrough a regional arrangement, or otherwise, in conformity with appropriate provisions of the United Nations
Charter.”); LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 202 (§54) (“War is a contention between two or
more States through their armed forces, for the purpose of overpowering each other and imposing such conditions ofpeace as the victor pleases.”); LIEBER CODE art. 20 (“Public war is a state of armed hostility between sovereign
nations or governments. It is a law and requisite of civilized existence that men live in political, continuous
societies, forming organized units, called states or nations, whose constituents bear, enjoy, and suffer, advance andretrograde together, in peace and in war.”).
71

Refer to § 3.3.1 (International Armed Conflict and Non-International Armed Conflict).

72

See, e.g., Fred K. Green, The Concept of “War” and the Concept of “Combatant” in Modern Conflicts, 10
MILITARY LAW AND LAW OF WAR REVIEW 267, 269 (1971) (“[I]n US municipal law, the existence of “war” and its
beginning and termination is a question of objective fact determined for different purposes by different agencies of19Constitution, Congress has the power to “declare war.” 73 Thus, “war” might be interpreted todetermine whether a military operation constitutes “war” in this sense. 74 Similarly, the War
Powers Resolution states certain requirements that are triggered when U.S. forces are introduced
into “hostilities.” 75 Other statutes may require a determination that conduct has occurred“[w]hen the United States is at war” or during “time of war.” 76
Under international law, “war,” “hostilities,” and “armed conflict” may also beinterpreted with different purposes in mind. 77 A state of “war” can affect what duties States thatare not participating in the conflict have under the law of neutrality. 78 A state of “war” can affectwhether peacetime treaties between two States continue to apply. Most importantly for the
purposes of this manual, the terms “war” and “armed conflict” are used to describe when jus in
bello rules apply. 79
1.6 LAW OF WAR DISTINGUISHED FROM CERTAIN TOPICS
The law of war may be distinguished from the following topics: (1) operational law; (2)arms control; (3) human rights treaties; (4) the Just War Tradition; (5) rules of engagement; and(6) the Code of Conduct for U.S. Armed Forces.

the sovereign. There has been no apparent effort to coordinate federal law so as to permit establishment of fixed
criteria that would be identified and applicable for all purposes. The tremendous variations in result that thissituation produces renders meaningless any attempt to generalize with respect to established criteria.”).
73

U.S. CONSTITUTION art. I, § 8.

74

Caroline D. Krass, Principal Deputy Assistant Attorney General, Authority to use Military Force in Libya, 8 (Apr.
1, 2011) (“[T]he historical practice of presidential military action without congressional approval precludes any
suggestion that Congress’s authority to declare war covers every military engagement, however limited, that the
President initiates. In our view, determining whether a particular planned engagement constitutes a ‘war’ forconstitutional purposes instead requires a fact-specific assessment of the ‘anticipated nature, scope, and duration’ of
the planned military operations. Haiti Deployment, 18 Op. O.L.C. at 179.”).
75

See 50 U.S.C. § 1543(a)(1) (“In the absence of a declaration of war, in any case in which United States Armed
Forces are introduced— (1) into hostilities or into situations where imminent involvement in hostilities is clearly
indicated by the circumstances; … the President shall submit within 48 hours to the Speaker of the House ofRepresentatives and to the President pro tempore of the Senate a report, in writing, setting forth … .”).

76

See, e.g., 10 U.S.C. § 843(f) (“When the United States is at war, the running of any statute of limitations
applicable to [certain offenses]… is suspended until three years after the termination of hostilities as proclaimed by
the President or by a joint resolution of Congress.”); 10 U.S.C. § 906 (“Any person who in time of war is foundlurking as a spy or acting as a spy in or about any place, vessel, or aircraft, within the control or jurisdiction of anyof the armed forces, or in or about any shipyard, any manufacturing or industrial plant, or any other place or
institution engaged in work in aid of the prosecution of the war by the United States, or elsewhere, shall be tried by ageneral court-martial or by a military commission and on conviction shall be punished by death. This section does
not apply to a military commission established under chapter 47A of this title.”).
77

JULIUS STONE, LEGAL CONTROLS OF INTERNATIONAL CONFLICT 312 (1954) (“[T]he question ‘War or No War?’may have to be answered differently according to the purposes for which an answer is sought. One answer, forexample, may be indicated for the purposes of the rules for the mitigation of suffering; another for those governing
war supplies to belligerents from neutral governments, or governing blockade or contraband.”).

78

Refer to § 15.2.1 (Armed Conflict and the Application of the Law of Neutrality).

79

Refer to § 3.4 (When Jus in Bello Rules Apply).

20

1.6.1 Operational Law. The law of war is an important part of, but not the entirety of,operational law. Operational law consists of that body of domestic, foreign, and international
law that specifically pertains to the activities of military forces across the entire conflict
spectrum. Operational law includes diverse legal disciplines, such as military justice,administrative and civil law, legal assistance, claims, procurement law, national security law,fiscal law, and the law of war. 80
1.6.2 Arms Control. Arms control is a broad term that includes a variety of efforts to
reduce the numbers, types, performance characteristics, proliferation, testing, or other aspects ofcertain categories of weapons. Arms control usually proceeds through bilateral or multilateraltreaties. Arms control can also include non-binding political commitments, as well as reciprocal
unilateral statements of intention or policy. The overall goals of arms control are to reduce: (1)the likelihood of war; (2) the consequences of war, should it occur; and (3) the costs of preparing
for war.
Arms control is closely related to other concepts. For example, “non-proliferation” refers
specifically to efforts to restrict the spread of weapons (in particular, weapons of mass
destruction). “Disarmament” refers to efforts to eliminate entirely, rather than to restrict, aparticular category of weapon. And sometimes States accept “confidence-building measures” (orconfidence, security, and transparency-building measures) that do not directly reduce thequantity or quality of armaments, but rather increase States’ certainty that ambiguous activities
by other States are not secret actions in violation of arms control obligations.
Arms control and the law of war frequently overlap in treaties. For example, the CCW
Protocol IV on Blinding Laser Weapons has both arms control and law of war provisions. 81
Similarly, the Chemical Weapons Convention prohibits, inter alia, the development andstockpiling of chemical weapons, but it is also directly relevant to the law of war because itprohibits the use of chemical weapons in all circumstances. 82
1.6.3 Human Rights Treaties. 83 Human rights treaties address primarily the obligations
80

THE JUDGE ADVOCATE GENERAL’S SCHOOL, U.S. ARMY, OPERATIONAL LAW HANDBOOK JA 422 1-1 (1997)(“[Operational law is] [t]hat body of domestic, foreign, and international law that impacts specifically upon theactivities of U.S. Forces across the entire operational spectrum. Operational law is the essence of the military legal
practice. It is a collection of diverse legal and military skills, focused on military operations. It includes militaryjustice, administrative and civil law, legal assistance, claims, procurement law, environmental law, national security
law, fiscal law, international law, host nations law, and the law of war. In short, operational law is a unique blend of
every source of law that has application within the operational context. … Because the definition of operational law
is so broad, ample statutory and regulatory references serve to establish the substance of the practice.”).

81

Refer to § 19.21.5 (CCW Protocol IV on Blinding Laser Weapons).

82

Refer to § 6.8.3.2 (Prohibitions With Respect to Chemical Weapons).

83

This section focuses on human rights treaties and not other sources of international human rights law. See, e.g.,Catherine Amirfar, Counselor for International Law, Department of State, Statement at 53rd Session of the U.N.
Committee Against Torture, Nov. 3 – 28, 2014, Nov. 12, 2014 (“For example, the prohibition against torture iscustomary international law binding on all nations everywhere, at all times.”); U.N. International Law Commission,
State responsibility: Comments and observations received from Governments, U.N. Doc. A/CN.4/488, 133 (Mar.
25, 1998) (“United States of America Subparagraph (e) [which would reflect a prohibition against conduct by way
of countermeasures in contravention of a peremptory norm of general international law] similarly does not provide
useful guidance in determining whether a countermeasure would be permissible. Just as there is little agreement21

of governments with respect to the rights of individuals, including their own nationals. 84 For
example, governments must refrain from subjecting individuals to arbitrary detention, toarbitrary deprivation of life, or to cruel, inhuman, or degrading treatment or punishment. 85
As a general matter, human rights treaties have been described as primarily applicable to
the relationship between a State and individuals in peacetime. 86 Some human rights treaties also
provide for derogation from certain provisions in emergency situations. 87
Law of war treaties have been described as chiefly concerned with the conditions
particular to armed conflict and the relationship between a State and nationals of the enemy
State. 88 Law of war treaties generally do not provide for derogation because necessity is not awith respect to ‘basic’ human rights and political and economic ‘coercion’, the content of peremptory norms isdifficult to determine outside the areas of genocide, slavery and torture.”).
84

See, e.g., Jimmy Carter, United Nations Remarks on Signing International Covenants on Human Rights, 1977-II
PUBLIC PAPERS OF THE PRESIDENTS 1734 (“The Covenant on Civil and Political Rights concerns what governments
must not do to their people, and the Covenant on Economic, Social and Cultural Rights concerns what governments
must do for their people. By ratifying the Covenant on Civil and Political Rights, a government pledges, as a matterof law, to refrain from subjecting its own people to arbitrary imprisonment or execution or to cruel or degrading
treatment. It recognizes the right of every person to freedom of thought, freedom of conscience, freedom of
religion, freedom of opinion, freedom of expression, freedom of association, and the rights of peaceful assembly,
and the right to emigrate from that country.”).
85

International Covenant on Civil and Political Rights, art. 9(1), Dec. 19, 1966, 999 UNTS 171, 175 (“Everyone has
the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”);
International Covenant on Civil and Political Rights, art. 6(1), Dec. 19, 1966, 999 UNTS 171, 174 (“Every humanbeing has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of hislife.”); International Covenant on Civil and Political Rights, art. 7, Dec. 19, 1966, 999 UNTS 171, 175 (“No one
shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shallbe subjected without his free consent to medical or scientific experimentation.”).
86

See, e.g., JEAN PICTET, HUMANITARIAN LAW AND THE PROTECTION OF WAR VICTIMS 15 (1975) (“Admittedly,
human rights embody more general principles while the law of armed conflicts is of a specific and exceptional
nature, coming as it does into operation at the very time when the exercise of human rights is prevented or restrictedby war. But the two legal systems are fundamentally different, for humanitarian law is valid only in the case of anarmed conflict while human rights are essentially applicable in peacetime, and contain derogation clauses in case of
conflict. Moreover, human rights govern relations between the State and its own nationals, the law of war thosebetween the State and enemy nationals.”).

87

See, e.g., International Covenant on Civil and Political Rights, art. 4(1), Dec. 19, 1966, 999 UNTS 171, 174 (“Intime of public emergency which threatens the life of the nation and the existence of which is officially proclaimed,
the States Parties to the present Covenant may take measures derogating from their obligations under the present
Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are notinconsistent with their other obligations under international law and do not involve discrimination solely on the
ground of race, colour, sex, language, religion or social origin.”).
88

Christopher Greenwood, Historical Development and Legal Basis, in DIETER FLECK, THE HANDBOOK OF
HUMANITARIAN LAW IN ARMED CONFLICTS 9 (¶102) (1999) (“Human rights law is designed to operate primarily innormal peacetime conditions, and within the framework of the legal relationship between a state and its citizens.
International humanitarian law, by contrast, is chiefly concerned with the abnormal conditions of armed conflict andthe relationship between a state and the citizens of its adversary, a relationship otherwise based upon power rather
than law.”).

22

basis for derogating from law of war rules. 89
1.6.3.1 Relationship Between Human Rights Treaties and the Law of War. In
some circumstances, the rules in the law of war and the rules in human rights treaties may appear
to conflict; these apparent conflicts may be resolved by the principle that the law of war is the lex
specialis during situations of armed conflict, and, as such, is the controlling body of law withregard to the conduct of hostilities and the protection of war victims. 90
For example, the right to challenge the lawfulness of an arrest before a court provided in
Article 9 of the International Covenant on Civil and Political Rights (ICCPR) would appear toconflict with the authority under the law of war to detain certain persons without judicial process
or criminal charge. 91 However, the United States has understood Article 9 of the ICCPR not toaffect a State’s authorities under the law of war, including a State’s authority in bothinternational and non-international armed conflicts to detain enemy combatants until the end of
hostilities. 92 Some international courts or commissions have interpreted the rights conveyed byhuman rights treaties in light of the rules of the law of war, as the applicable lex specialis, whenassessing situations in armed conflict. 93

89

Refer to § 2.2.2 (Military Necessity and Law of War Rules).

90

Refer to § 1.3.2 (The Law of War’s Relationship to Other Bodies of Law).

91

International Covenant on Civil and Political Rights, art. 9(4), Dec. 19, 1966, 999 UNTS 171, 176 (“Anyone who
is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that thatcourt may decide without delay on the lawfulness of his detention and order his release if the detention is notlawful.”).
92

Observations of the United States of America on the Human Rights Committee’s Draft General Comment 35:
Article 9, ¶22, Jun. 10, 2014 (“Given that international humanitarian law is the controlling body of law in armed
conflict with regard to the conduct of hostilities and the protection of war victims, the United States does notinterpret references to ‘detainees’ and ‘detention’ in several paragraphs to refer to government action in the context
of and associated with an armed conflict. For example, paragraph 15 incorrectly implies that the detention of enemy
combatants in the context of a non-international armed conflict ‘would normally amount to arbitrary detention asother effective measures addressing the threat, including the criminal justice system, would be available.’ On thecontrary, in both international and non-international armed conflicts, a State may detain enemy combatantsconsistent with the law of armed conflict until the end of hostilities. Similarly, to the extent paragraphs 15 and 66
are intended to address law-of-war detention in situations of armed conflict, it would be incorrect to state that there
is a ‘right to take proceedings before a court to enable the court to decide without delay on the lawfulness ofdetention’ in all cases. In addition, to the extent the discussion of an individual right to compensation under Article
9 in paragraphs 49-52 is intended to extend to individuals detained in the context of an armed conflict, as a matter ofinternational law, the rules governing available remedies for unlawful detention in the context of an armed conflict
would be drawn from international humanitarian law.”).
93

Coard, et al. v. United States, Inter-American Commission on Human Rights, Organization of American States,
Case 10.951, Report 109/99, ¶42 (Sept. 29, 1999) (“[I]n a situation of armed conflict, the test for assessing theobservance of a particular right, such as the right to liberty, may, under given circumstances, be distinct from thatapplicable in a time of peace. For that reason, the standard to be applied must be deduced by reference to theapplicable lex specialis.”); Juan Carlos Abella v. Argentina, Inter-American Commission on Human Rights,
Organization of American States, Case 11.137, OEA/Ser.L/V/II.98, ¶161 (Nov. 18, 1997) (“[T]he Commission mustnecessarily look to and apply definitional standards and relevant rules of humanitarian law as sources ofauthoritative guidance in its resolution of this and other kinds of claims alleging violations of the American
Convention in combat situations.”); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996
I.C.J. 226, 240 (¶25) (“In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities.

23

On the other hand, during armed conflict, human rights treaties would clearly becontrolling with respect to matters that are within their scope of application and that are notaddressed by the law of war. For example, a time of war does not suspend the operation of the
ICCPR with respect to matters within its scope of application. Therefore, as an illustration,
participation in a war would in no way excuse a State Party to the ICCPR from respecting andensuring the right and opportunity of every citizen to vote and to be elected at genuine periodic
elections. 94
1.6.3.2 Different Views on the Applicability of Human Rights Treaties. In
conducting operations with coalition partners, it may be important to consider that some States
may have different perspectives on the applicability of human rights treaties. Such differences
may result from different legal interpretations or from the fact that the other State is a Party todifferent human rights treaties than the United States. For example, the European Court of
Human Rights – as well as some European States – have construed certain obligations under theEuropean Convention on Human Rights (ECHR) as applicable to their military forces abroad
during occupation. 95
1.6.3.3 International Covenant on Civil and Political Rights (ICCPR). The
United States is a Party to the International Covenant on Civil and Political Rights (ICCPR).
The ICCPR creates obligations for a State with respect to persons within its territory andsubject to its jurisdiction. 96 The United States has long interpreted the ICCPR not to apply
abroad. 97 The inclusion of the reference to “within its territory” in Article 2(1) of the ICCPR
The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex
specialis, namely, the law applicable to armed conflict which is designed to regulate the conduct of hostilities.”).
94

Fourth Periodic Report of the United States of America to the United Nations Committee on Human Rights
Concerning the International Covenant on Civil and Political Rights, Dec. 30, 2011, ¶506 (“With respect to theapplication of the Covenant and the international law of armed conflict (also referred to as international
humanitarian law or ‘IHL’), the United States has not taken the position that the Covenant does not apply ‘in time ofwar.’ Indeed, a time of war does not suspend the operation of the Covenant to matters within its scope of
application. To cite but two obvious examples from among many, a State Party’s participation in a war would in noway excuse it from respecting and ensuring rights to have or adopt a religion or belief of one’s choice or the rightand opportunity of every citizen to vote and to be elected at genuine periodic elections.”).
95
Case of Al-Skeini and Others v. The United Kingdom, ECtHR, 55721/07, ¶149 (Jul. 7, 2011) (“It can be seen,
therefore, that following the removal from power of the Ba’ath regime and until the accession of the Interim
Government, the United Kingdom (together with the United States) assumed in Iraq the exercise of some of the
public powers normally to be exercised by a sovereign government. In particular the United Kingdom assumed
authority and responsibility for the maintenance of security in South East Iraq. In these exceptional circumstances
the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basrah during
the period in question, exercised authority and control over individuals killed in the course of such security
operations so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of
Article 1 of the (ECHR).”).
96

International Covenant on Civil and Political Rights, art. 2(1), Dec. 19, 1966, 999 UNTS 171, 173 (“Each State
Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject toits jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour,
sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”).
97

See, e.g., U.N. Human Rights Committee, Summary Record of the 1405th Meeting, U.N. Doc. CCPR/C/SR.1405
6-7 (¶20) (Apr. 24, 1995) (“Klein had asked whether the United States took the view that the Covenant did not apply

24was adopted as a result of a proposal made by U.S. delegate Eleanor Roosevelt – specifically toensure that a State Party’s obligations would not apply to persons outside its territories, such as
in occupied territory and leased territory. 98
1.6.3.4 Convention Against Torture. The United States is a Party to theConvention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 99
The Convention against Torture was not intended to supersede the prohibitions against
torture already contained in customary international law and the 1949 Geneva Conventions or its
Additional Protocols. 100 The law of war is the controlling body of law with respect to the
conduct of hostilities and the protection of war victims. Nevertheless, a time of war does notsuspend operation of the Convention Against Torture. The Convention Against Torture
continues to apply even when a State is engaged in armed conflict. 101 For example, a state of
war could not justify a State’s torture of individuals during armed conflict. 102
In addition, where the text of the Convention Against Torture provides that obligations
apply to a State Party in “any territory under its jurisdiction,” such obligations, including theobligations in Articles 2 and 16 to prevent torture and cruel, inhuman, or degrading treatment or
punishment, extend to certain areas beyond the sovereign territory of the State Party, and more
specifically to “all places that the State Party controls as a governmental authority.” 103

to government actions outside the United States. The Covenant was not regarded as having extraterritorial
application. In general, where the scope of application of a treaty was not specified, it was presumed to apply only
within a party’s territory. Article 2 of the Covenant expressly stated that each State party undertook to respect andensure the rights recognized ‘to all individuals within its territory and subject to its jurisdiction’. That dual
requirement restricted the scope of the Covenant to persons under United States jurisdiction and within UnitedStates territory. During the negotiating history, the words ‘within its territory’ had been debated and were added by
vote, with the clear understanding that such wording would limit the obligations to within a Party’s territory.”).
98

Refer to § 11.1.2.6 (Occupation and the ICCPR and Other Human Rights Treaties).

99

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984,
1465 UNTS 85.

100

Refer to § 8.2.1 (Protection Against Violence, Torture, and Cruel Treatment).

101

Mary McLeod, Acting Legal Adviser, Department of State, Opening Statement at 53rd Session of the U.N.
Committee Against Torture, Nov. 3 – 28, 2014, Nov. 12, 2014 (“Although the law of armed conflict is thecontrolling body of law with respect to the conduct of hostilities and the protection of war victims, a time of war
does not suspend operation of the Convention Against Torture, which continues to apply even when a State is
engaged in armed conflict. The obligations to prevent torture and cruel, inhuman, and degrading treatment andpunishment in the Convention remain applicable in times of armed conflict and are reinforced by complementaryprohibitions in the law of armed conflict.”).
102

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 2(2), Dec. 10,
1984, 1465 UNTS 85, 114 (“No exceptional circumstances whatsoever, whether a state of war or a threat of war,internal political instability or any other public emergency, may be invoked as a justification of torture.”).
103

Mary McLeod, Acting Legal Adviser, Department of State, Opening Statement at 53rd Session of the U.N.
Committee Against Torture, Nov. 3 – 28, 2014, Nov. 12, 2014 (“In brief, we understand that where the text of theConvention provides that obligations apply to a State Party in ‘any territory under its jurisdiction,’ such obligations,
including the obligations in Articles 2 and 16 to prevent torture and cruel, inhuman or degrading treatment or
punishment, extend to certain areas beyond the sovereign territory of the State Party, and more specifically to ‘allplaces that the State Party controls as a governmental authority.’ We have determined that the United States25

1.6.4 Just War Tradition. The Just War Tradition describes customs, ethical codes, andmoral teachings associated with warfare that military thinkers and philosophers have developed
over centuries to seek the moral justification of and the limitations to war. 104
The Just War Tradition provides part of the philosophical foundation for the modern lawof war and has considered both jus ad bellum and jus in bello. The Just War Tradition developed
criteria or principles that have provided the foundation for modern jus ad bellum rules. 105
Similarly, law of war treaties that provide jus in bello rules, such as the 1949 Geneva
Conventions, are also rooted in the Just War Tradition. The Just War Tradition remains relevant
for decisions to employ U.S. military forces and in warfighting. 106
1.6.5 Rules of Engagement (ROE). Rules of engagement (ROE) have been defined as“[d]irectives issued by competent military authority that delineate the circumstances andlimitations under which United States forces will initiate and/or continue combat engagementwith other forces encountered.” 107 ROE are used by States to tailor the rules for the use of force
to the circumstances of a particular operation. 108

currently exercises such control at the U.S. Naval Station at Guantanamo Bay, Cuba, and with respect to U.S.
registered ships and aircraft.”).
104

WILLIAM O’BRIEN, THE CONDUCT OF JUST AND LIMITED WAR 4 (1981) (“The just-war tradition begins with theefforts of St. Augustine to justify Christian participation in Roman wars. From this foundation, St. Thomas Aquinas
and other Scholastic thinkers developed the Scholastic just-war doctrine. This doctrine reached its mature form by
the time of the writings of Vitoria and Suarez in the sixteenth and seventeenth centuries. Various Protestantmoralists and secular writers dealt with just-war issues during the Reformation, but by the eighteenth century justwar doctrine was becoming a curiosity that was not taken seriously. It remained for the twentieth century reaction
against total war to spark renewed studies in the just-war tradition.”).

105

Refer to § 1.11.1 (Jus ad Bellum Criteria).

106

See, e.g., Barack Obama, Remarks on Accepting the Nobel Peace Prize in Oslo, Dec. 10, 2009, 2009-II PUBLIC
PAPERS OF THE PRESIDENTS 1799 (“And over time, as codes of law sought to control violence within groups, so did
philosophers and clerics and statesmen seek to regulate the destructive power of war. The concept of a just war
emerged, suggesting that war is justified only when certain conditions were met: if it is waged as a last resort or in
self-defense; if the force used is proportional; and if, whenever possible, civilians are spared from violence.”);George H. W. Bush, Remarks at the Annual Convention of the National Religious Broadcasters, Jan. 28, 1991,
1991-I PUBLIC PAPERS OF THE PRESIDENTS 70 (“Nowhere is this more true than in the Persian Gulf where -- despite
protestations of Saddam Hussein -- it is not Iraq against the United States, it’s the regime of Saddam Hussein against
the rest of the world. Saddam tried to cast this conflict as a religious war, but it has nothing to do with religion per
se. It has, on the other hand, everything to do with what religion embodies: good versus evil, right versus wrong,human dignity and freedom versus tyranny and oppression. The war in the Gulf is not a Christian war, a Jewish
war, or a Moslem war; it is a just war. And it is a war with which good will prevail.”).
107

JOINT PUBLICATION 1-04, Legal Support to Military Operations, GL-3 (Aug. 17, 2011) (“rules of engagement.
Directives issued by competent military authority that delineate the circumstances and limitations under which
United States forces will initiate and/or continue combat engagement with other forces encountered. Also called
ROE.”).
108

For example, Juan Carlos Gomez, Twenty-First-Century Challenges: The Use of Military Forces to Combat
Criminal Threats, 88 INTERNATIONAL LAW STUDIES 279, 285-86 (2012) (“There must be clear, understandable rules
provided to military forces on the circumstances under which force may be used and the type and degree of thatforce. This is dependent on the mission assigned to the forces. In Colombia, two differently colored cards are used.
A blue card is used when the military unit is engaged in a law enforcement mission. The rules on the blue card are
based on HRL. They provide for the use of force only when no other option is available to accomplish the mission

26

ROE reflect legal, policy, and operational considerations, and are consistent with theinternational law obligations of the United States, including the law of war. 109 ROE may restrict
actions that would be lawful under the law of war, but may not permit actions prohibited by thelaw of war. States have used ROE as part of the implementation of their law of war obligations
during military operations. 110
1.6.6 Code of Conduct for U.S. Armed Forces. The Code of Conduct is a moral guide for
U.S. forces to govern their conduct in resisting capture and their actions in the event they fall
into hostile hands. 111 The Code of Conduct was developed after the Korean War and waspromulgated by Executive Order. 112 The Code of Conduct is consistent with the law of war
obligations of the United States, including obligations in the GPW. 113
1.7 TREATIESTreaties are generally defined as international agreements concluded between States in
written form and governed by international law. 114 Under international law, a treaty is binding
upon States that are Parties to it. 115
The United States is a Party to a number of law of war treaties. 116 For many years, theDepartment of State has published annually a listing of treaties and other international
agreements in force for the United States. This publication has provided helpful information
about such treaties, including the date of U.S. ratification and a listing of other Parties to eachtreaty.

and in self-defense of the person and others. The red card is used in operations against military objectives. These
cards are based on IHL and permit the offensive use of force, including lethal force if demanded by militarynecessity.”).
109

J. Fred Buzhardt, General Counsel, Department of Defense, Letter to Senator Edward Kennedy, Sept. 22, 1972,
reprinted in 67 AJIL 124 (1973) (“With reference to your inquiry concerning the rules of engagement governing
American military activity in Indochina, you are advised that rules of engagement are directives issued by competent
military authority which delineate the circumstances and limitations under which United States Forces will initiate
and/or continue combat engagement with the enemy. These rules are the subject of constant review and commandemphasis. They are changed from time to time to conform to changing situations and the demands of militarynecessity. One critical and unchanging factor is their conformity to existing international law as reflected in theHague Conventions of 1907 and the Geneva Conventions of 1949, as well as with the principles of customaryinternational law of which UNGA Resolution 2444 (XXIII) is deemed to be a correct restatement.”).
110

Refer to § 5.1.2 (Implementation of Law of War Obligations in the Conduct of Hostilities During Military
Operations).
111

Refer to § 9.39 (Code of Conduct for U.S. Armed Forces).

112

Refer to § 9.39.2 (Background on the U.S. Code of Conduct).

113

Refer to § 9.39.1 (Text of the Code of Conduct and Discussion).

114

Consider, e.g., VCLT art. 1(a) (“‘[T]reaty’ means an international agreement concluded between States in written
form and governed by international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation;”).

115

Refer to § 1.10.1.1 (Legal Force of Treaties Among States).

116

Refer to § 19.2.1 (Law of War Treaties to Which the United States Is a Party).

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1.7.1 Treaties – Notes on Terminology. Treaties may be titled or referred to by several
other terms in addition to “treaty” – including convention, protocol, or agreement. In the context
of the law of war, “protocol” often refers to an agreement that supplements or updates anexisting agreement.
1.7.1.1 “Treaties” Under U.S. Constitutional Law. Under the Constitution, a“treaty” must receive the advice and consent of the Senate before U.S. ratification or accession.
Certain international agreements, such as Executive agreements, are not classified as “treaties”
for the purposes of this requirement, although they may be characterized as “treaties” for the
purposes of international law and impose obligations upon the United States. 117
1.7.2 Reservations to Treaties. A State may limit the application of provisions of a treaty
by reservation upon ratification of the treaty as long as the treaty does not prohibit suchreservations and the reservation is compatible with the object and purpose of the treaty. 118 For
example, the United States has taken a reservation to certain provisions of CCW Protocol III on
Incendiary Weapons. 119 On the other hand, for example, the Chemical Weapons Convention
expressly prohibits reservations to the Convention and prohibits reservations to the Convention’s
Annexes that are incompatible with its object and purpose. 120
1.7.3 Withdrawal From Treaties. Under certain circumstances, States may withdraw
from treaties. 121 Some law of war and arms control treaties specify the conditions under which
Parties may withdraw from them. 122 Even upon denunciation of a treaty, States remain bound by
117

See, e.g., Weinberger v. Rossi, 456 U.S. 25, 29-30 (1982) (“The word ‘treaty’ has more than one meaning.
Under principles of international law, the word ordinarily refers to an international agreement concluded between
sovereigns, regardless of the manner in which the agreement is brought into force. Under the United States
Constitution, of course, the word ‘treaty’ has a far more restrictive meaning. Article II, §2, cl. 2, of that instrument
provides that the President ‘shall have Power, by and with the Advice and Consent of the Senate, to make Treaties,
provided two thirds of the Senators present concur.’”) (internal citation omitted).
118

Consider VCLT art. 19 (“A State may, when signing, ratifying, accepting, approving or acceding to a treaty,
formulate a reservation unless: (a) the reservation is prohibited by the treaty; (b) the treaty provides that only
specified reservations, which do not include the reservation in question, may be made; or (c) in cases not failingunder subparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.”). See
also William P. Rogers, Letter of Submittal, Oct. 18, 1971, MESSAGE FROM THE PRESIDENT TRANSMITTING THE
VCLT 2 (“Part 2 of Section II sets forth the rules on reservations to treaties (Articles 19-23). The articles reflectflexible current treaty practice with regard to multilateral treaties as generally followed since World War II. The
earlier traditional rule on reservations had been that in order for a State to become party to a multilateral treaty witha reservation the unanimous consent of the other parties was required. That rule has given way in practice to a more
flexible approach particularly after the International Court of Justice in 1951 handed down its Advisory Opinion on
Reservations to the Genocide Convention.”).
119

Refer to § 6.14.3.2 (U.S. Reservation to CCW Protocol III on Incendiary Weapons).

120

Refer to § 19.22 (Chemical Weapons Convention).

121

Consider VCLT art. 54 (“The termination of a treaty or the withdrawal of a party may take place: (a) inconformity with the provisions of the treaty; or (b) at any time by consent of all the parties after consultation withthe other contracting States.”).

122
See, e.g., CCW art. 9(1) (“Any High Contracting Party may denounce this Convention or any of its annexed
Protocols by so notifying the Depositary.”); GWS art. 63 (“Each of the High Contracting Parties shall be at liberty todenounce the present Convention.”).

28

customary international law, including law of war principles. 123
1.7.4 Use of Certain Subsequent Practice in Treaty Interpretation. Certain subsequentState practice in the application of a treaty provision may be taken into account wheninterpreting that provision. 124 Subsequent State practice is important as an element ofinterpretation when it constitutes objective evidence of the understanding of the Parties as to themeaning of the treaty. 125 For example, the subsequent practice of States in the application of the
GWS-Sea’s requirements for hospital ships has clarified that States may use hospital ships withthe capability to conduct encrypted communications. 126
1.7.5 Treaties and Domestic Implementing Legislation. States may enact domestic
legislation to implement treaty provisions. Although such implementing legislation is notinternational law, it may reflect a State’s interpretation of those provisions. 127
A State’s domestic implementing legislation, or lack of such legislation, however, does
not justify that State’s noncompliance with an international obligation as a matter of internationallaw. 128
1.8 CUSTOMARY INTERNATIONAL LAW
Customary international law results from a general and consistent practice of States that123

Refer to § 19.8.3 (Martens Clause).

124

Consider VCLT art. 31(3) (“There shall be taken into account, together with the context: (b) Any subsequent
practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;”).
See also I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 199 (§325(2)) (1987) (“Anysubsequent agreement between the parties regarding the interpretation of the agreement, and subsequent practice
between the parties in the application of the agreement, are to be taken into account in its interpretation.”); I
RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 203 (§325, comment c) (1987) (This“conforms to United States modes of interpretation, affirming that subsequent practice of the parties can be taken
into account in interpreting international agreements.”).
125

See II YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 221 (¶15) (1966) (“The importance of such
subsequent practice in the application of the treaty, as an element of interpretation, is obvious; for it constitutes
objective evidence of the understanding of the parties as to the meaning of the treaty. Recourse to it as a means ofinterpretation is well-established in the jurisprudence of international tribunals.”). See also Case Concerning
Kasikili/Sedudu Island (Botswana v. Namibia), Judgment, 1999 I.C.J. 1045, 1075-76 (¶49) (same); Russian Claimfor Interest on Indemnities (The Russian Indemnity Case), Russia/Turkey, 11 R.I.A.A. 421, 433 (1912) Permanent
Court of Arbitration Unofficial English Translation, 3 (“Whereas the fulfilment of obligations is, between States as
between individuals, the surest commentary on the meaning of these obligations;”); Case Concerning The Temple ofPreah Vihear (Cambodia v. Thailand), Merits, Judgment, 1962 I.C.J. 6, 34 (The map “was accepted by the Parties in1908 and thereafter as constituting the result of the interpretation given by the two Governments to the delimitation
which the Treaty itself required. In other words, the Parties at that time adopted an interpretation of the treaty
settlement which caused the map line, in so far as it may have departed from the line of the watershed, to prevailover the relevant clause of the treaty.”).
126

Refer to § 7.12.2.7 (Use of Secret Codes for Communication).

127

See United States v. Navarre, 173 U.S. 77, 79 (1899) (noting that “[i]f the meaning of the treaty was doubtful, it
was competent for Congress to resolve the doubt” in its enactment of legislation).
128

Refer to § 1.10.1.4 (Force of International Law Notwithstanding a State’s Domestic Law).

29

is followed by them from a sense of legal obligation (opinio juris). 129 Customary internationallaw is an unwritten form of law in the sense that it is not created through a written agreement by
States.
Customary international law is generally binding on all States, but States that have been
persistent objectors to a customary international law rule during its development are not boundby that rule. 130
Assessing whether State practice and opinio juris have resulted in a rule of customaryinternational law may be a difficult inquiry. 131
1.8.1 Relationship Between Treaties and Customary International Law. Treaty
provisions may, inter alia: (1) not reflect customary international law; (2) reflect customaryinternational law; or (3) be based on customary law, but not precisely reflect it.
In most cases, treaty provisions do not reflect customary international law. For example,
AP I’s provisions changing which persons would be entitled to the privileges of combatant status
were viewed as novel at the time of the adoption of AP I and as not reflecting customaryinternational law. 132
In some cases, a treaty provision may reflect customary international law. The rulereflected in the treaty would thus be understood to be binding, even if the treaty provision was
not applicable, because the rule maintains a separate existence as a customary norm. 133 For
example, provisions of Hague IV and the Hague IV Regulations have been found to reflect
customary international law. 134 Law of war treaties have specified that customary law and
129

See I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 24 (§102(2)) (1987)(“Customary international law results from a general and consistent practice of states followed by them from a senseof legal obligation.”).
130

Refer to § 1.10.1.2 (Legal Force of Customary International Law Among States).

131

Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on the
Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the
Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 421-22 (1987)(“Having described the reasons why I believe that the topic of this Workshop is important and very relevant todecisions currently being taken with respect to Protocol I in the United States and other governments, it is of coursemuch more difficult to say exactly which of the rules contained in the Protocol currently are in fact a part ofcustomary law. As I am sure you all appreciate quite well, there is no clear line drawn in the dust for all to see
between those principles that are now customary law and those which have not yet attained the degree of acceptanceand observance that might make them customary law. Instead, there are degrees of acceptance and degrees ofobservance, and the judgment as to what degree of each is sufficient for establishment as customary law isinherently subjective and hard to define precisely.”).
132

Refer to, e.g., § 4.6.1.2 (AP I and the GPW 4A(2) Conditions).

133

Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, Judgment,
1986 I.C.J. 14, 95 (¶178) (“[E]ven if two norms belonging to two sources of international law appear identical incontent, and even if the States in question are bound by these rules both on the level of treaty-law and on that ofcustomary international law, these norms retain a separate existence.”).
134

Refer to § 19.8.2.1 (Hague IV and Customary International Law).

30

principles continue to apply even if the treaty is not applicable. 135
A treaty provision may be based on an underlying principle that is an accepted part ofcustomary law, but the precise language of the treaty provision may not reflect customaryinternational law because there may be considerable disagreement as to the precise statement ofthat underlying principle. 136 For example, the United States has expressed support for thecustomary principle on which Article 51(3) of AP I is based, but has noted that Article 51(3) of
AP I, as drafted, does not reflect customary international law. 137
1.8.2 State Practice. One part of determining whether a purported rule is customaryinternational law is to analyze whether there is a general and consistent practice of States that
supports the purported rule.
An analysis of State practice to determine whether a purported rule reflects the customaryinternational law of war should include consideration of, inter alia: (1) whether the State
practice is extensive and virtually uniform; (2) actual operational practice; (3) the practice ofspecially affected States; and (4) contrary practice.
1.8.2.1 Extensive and Virtually Uniform. State practice should be sufficiently
dense and consistent to meet the “extensive and virtually uniform” standard generally required
for existence of a customary rule. 138
1.8.2.2 Actual Operational Practice. An analysis of State practice should include
an analysis of actual operational practice by States during armed conflict. Although manuals orother official statements may provide important indications of State behavior, they cannot

135

Refer to § 19.8.3 (Martens Clause).

136

Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on the
Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the
Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 422 (1987) (“Inaddition, it may be possible in many cases to say that a general principle is an accepted part of customary law, but tohave considerable disagreement as to the precise statement of that general principle.”).
137

Refer to § 5.8.1.2 (AP I, Article 51(3) Provision on Direct Participation in Hostilities).

138

See, e.g., Harold Koh, Legal Adviser, Department of State, Responses to Questions Submitted by Senator Richard
G. Lugar, in Libya and War Powers: Hearing Before the Committee on Foreign Relations, U.S. Senate, 112th
Congress, First Session, 53, 57 (Jun. 28, 2011) (“Determining that a principle has become customary internationallaw requires a rigorous legal analysis to determine whether such principle is supported by a general and consistentpractice of states followed by them from a sense of legal obligation. Although there is no precise formula to indicate
how widespread a practice must be, one frequently used standard is that state practice must be extensive andvirtually uniform, including among States particularly involved in the relevant activity (i.e., specially affectedStates).”); North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of
Germany v. Netherlands), 1969 I.C.J. 3, 43 (¶74) (“Although the passage of only a short period of time is notnecessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was
originally a purely conventional rule, an indispensable requirement would be that within the period in question, shortthough it might be, State practice, including that of States whose interests are specially affected, should have beenboth extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred insuch a way as to show a general recognition that a rule of law or legal obligation is involved.”).

31

replace a meaningful assessment of operational State practice. 139
1.8.2.3 Specially Affected States. The practice of “States whose interests are
specially affected,” e.g., States with a distinctive history of participation in the relevant matter,must support the purported rule. 140 States that have had a wealth of experience, or that haveotherwise had significant opportunities to develop a carefully considered military doctrine, may
be expected to have contributed a greater quantity and quality of State practice relevant to thelaw of war than States that have not.
For example, “specially affected States” could include, depending upon the relevant
matter, the nuclear powers, other major military powers, and occupying or occupied States. 141
As a case in point, the United Kingdom has been viewed as a specially affected State withrespect to the law of the sea. 142
1.8.2.4 Contrary Practice. Evidence of contrary practice, i.e., the practice ofStates that does not support the purported rule, must be considered in assessing whether that rule

139

U.S. RESPONSE TO ICRC CIHL STUDY 515 (“Second, we are troubled by the type of practice on which the Study
has, in too many places, relied. Our initial review of the State practice volumes suggests that the Study places toomuch emphasis on written materials, such as military manuals and other guidelines published by States, as opposedto actual operational practice by States during armed conflict. Although manuals may provide important indicationsof State behavior and opinio juris, they cannot be a replacement for a meaningful assessment of operational State
practice in connection with actual military operations. We also are troubled by the extent to which the Study relies
on non-binding resolutions of the General Assembly, given that States may lend their support to a particularresolution, or determine not to break consensus in regard to such a resolution, for reasons having nothing to do witha belief that the propositions in it reflect customary international law.”).
140

See U.S. RESPONSE TO ICRC CIHL STUDY 517 endnote 3 (“Not every State that has participated in an armed
conflict is ‘specially affected;’ such States do generate salient practice, but it is those States that have a distinctive
history of participation that merit being regarded as ‘specially affected.’”); Written Statement of the Government of
the United States of America, 28-29, Jun. 20, 1995, I.C.J., Request by the United Nations General Assembly for an
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (“Evidence of a customary norm
requires indication of ‘extensive and virtually uniform’ State practice, including States whose interests are ‘speciallyaffected.’ … With respect to the use of nuclear weapons, customary law could not be created over the objection of
the nuclear-weapon States, which are the States whose interests are most specially affected.”).

141

Theodor Meron, The Continuing Role of Custom in the Formation of International Humanitarian Law, 90 AJIL
238, 249 (1996) (“A broader question, however, concerns the degree of weight to be assigned to the practice ofvarious states in the formation of the international customary law of war. I find it difficult to accept the view,
sometimes advanced, that all states, whatever their geographical situation, military power and interests, inter alia,
have an equal role in this regard. Belligerency is only one factor here. The practice and opinion of Switzerland, forexample, as a neutral state, surely have more to teach us about assessment of customary neutrality law than thepractice of states that are not committed to the policy of neutrality and have not engaged in pertinent national
practice. The practice of ‘specially affected states’ -such as nuclear powers, other major military powers, andoccupying and occupied states-which have a track record of statements, practice and policy, remains particularly
telling. I do not mean to denigrate state equality, but simply to recognize the greater involvement of some states inthe development of the law of war, not only through operational practice but through policies expressed, forexample, in military manuals.”).
142

See, e g., The Paquete Habana, 175 U.S. 677, 719 (1900) (Fuller, J., dissenting) (noting that “[i]t is difficult toconceive of a law of the sea of universal obligation to which Great Britain has not acceded.”).

32

exists as a rule of customary international law. 143
In addition, the persistent objection of States may be relevant after the formation of thatrule by preventing the application of that rule to States that have objected to that rule during its
development. 144
1.8.3 Opinio Juris. In addition to analyzing State practice, one must determine whether
the State practice results from a sense of legal obligation (opinio juris) or merely reflects States’
policy or practical interests. Opinio juris cannot simply be inferred from consistent State
practice, which may exist for reasons other than opinio juris.145 For example, the fact that
nuclear weapons have not been used to conduct attacks during armed conflict since 1945 does
not reflect a prohibition in customary international law against their use because such lack of use
has not resulted from opinio juris. 146
1.8.3.1 Potential Sources of Opinio Juris. It may be difficult to find evidence of
opinio juris, and care should be exercised in assessing whether a source reflects opinio juris on
the part of a State. For example, treaty provisions do not necessarily reflect opinio juris. 147
Similarly, rather than indicating a position expressed out of a sense of a customary legal
143

For example, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 311, 311-12(Dissenting Opinion of Vice-President Schwebel) (“One way of surmounting the antinomy between practice andprinciple would be to put aside practice. That is what those who maintain that the threat or use of nuclear weapons
is unlawful in all circumstances do. … State practice demonstrates that nuclear weapons have been manufactured
and deployed by States for some 50 years; that in that deployment inheres a threat of possible use; and that theinternational community, by treaty and through action of the United Nations Security Council, has, far fromproscribing the threat or use of nuclear weapons in all circumstances, recognized in effect or in terms that in certain
circumstances nuclear weapons may be used or their use threatened.”).
144

Refer to § 1.8.4 (Objection During Development).

145

U.S. RESPONSE TO ICRC CIHL STUDY 515 (“Although the same action may serve as evidence both of State
practice and opinio juris, we do not agree that opinio juris simply can be inferred from practice. Both elements
instead must be assessed separately in order to determine the presence of a norm of customary international law.”).
146

See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 253-54 (¶¶65-67)(“States which hold the view that the use of nuclear weapons is illegal have endeavoured to demonstrate theexistence of a customary rule prohibiting this use. They refer to a consistent practice of non-utilization of nuclear
weapons by States since 1945 and they would see in that practice the expression of an opinio juris on the part ofthose who possess such weapons. Some other States, which assert the legality of the threat and use of nuclear
weapons in certain circumstances, invoked the doctrine and practice of deterrence in support of their argument.
They recall that they have always, in concert with certain other States, reserved the right to use those weapons in theexercise of the right to self-defence against an armed attack threatening their vital security interests. In their view, if
nuclear weapons have not been used since 1945, it is not on account of an existing or nascent custom but merely
because circumstances that might justify their use have fortunately not arisen. The Court does not intend topronounce here upon the practice known as the ‘policy of deterrence.’ It notes that it is a fact that a number ofStates adhered to that practice during the greater part of the Cold War and continue to adhere to it. Furthermore, themembers of the international community are profoundly divided on the matter of whether non-recourse to nuclear
weapons over the past 50 years constitutes the expression of an opinio juris. Under these circumstances the Court
does not consider itself able to find that there is such an opinio juris.”).
147

U.S. RESPONSE TO ICRC CIHL STUDY 515 (“One therefore must be cautious in drawing conclusions as to opinio
juris from the practice of States that are parties to conventions, since their actions often are taken pursuant to theirtreaty obligations, particularly inter se, and not in contemplation of independently binding customary international
law norms.”).

33

obligation, a State’s military manual often recites requirements applicable to that State under
treaties to which it is a Party, or provides guidance to its military forces for reasons of national
policy. 148
1.8.4 Objection During Development. Even if a rule otherwise reflects customaryinternational law, the rule is not binding upon a State that has persistently objected to that ruleduring its development. 149 This principle is an accepted application of the traditional principlethat international law essentially depends on the consent of States. 150
1.9 SUBSIDIARY MEANS OF DETERMINING INTERNATIONAL LAW
As a subsidiary means, it may be helpful to consult judicial decisions and the teachings ofthe most highly qualified publicists of various nations in determining the applicable rules ofinternational law. These means are subsidiary in the sense that they do not, in themselves,
constitute sources of treaty or customary international law.
Discretion must be exercised in weighing sources, however, because sources varysignificantly in their probative value. For example, the United States has said that it is not in aposition to accept without further analysis the conclusions in a study on customary international
humanitarian law published by the ICRC. 151
1.9.1 Judicial Decisions. Judicial decisions have sometimes been used as a subsidiary

148

U.S. RESPONSE TO ICRC CIHL STUDY 516 (“We are troubled by the Study’s heavy reliance on military manuals.
We do not agree that opinio juris has been established when the evidence of a State’s sense of legal obligationconsists predominately of military manuals. Rather than indicating a position expressed out of a sense of acustomary legal obligation, in the sense pertinent to customary international law, a State’s military manual often(properly) will recite requirements applicable to that State under treaties to which it is a party. Reliance on
provisions of military manuals designed to implement treaty rules provides only weak evidence that those treaty
rules apply as a matter of customary international law in non-treaty contexts.”).
149

See Fisheries Case, (United Kingdom v. Norway), Judgment, 1951 I.C.J. 116, 131 (“In these circumstances the
Court deems it necessary to point out that although the ten-mile rule has been adopted by certain States both in theirnational law and in their treaties and conventions, and although certain arbitral decisions have applied it as between
these States, other States have adopted a different limit. Consequently, the ten-mile rule has not acquired theauthority of a general rule of international law. In any event the ten-mile rule would appear to be inapplicable asagainst Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian coast.”); Asylum
Case (Colombia v. Peru), 1950 I.C.J. 266, 277-78 (“The Court cannot therefore find that the Colombian Government
has proved the existence of such a custom. But even if it could be supposed that such a custom existed between
certain Latin-American States only, it could not be invoked against Peru which, far from having by its attitude
adhered to it, has, on the contrary, repudiated it by refraining from ratifying the Montevideo Conventions of 1933
and 1939, which were the first to include a rule concerning the qualification of the offence in matters of diplomatic
asylum.”). See also U.S. RESPONSE TO ICRC CIHL STUDY 529 endnote 38 (“We note that the Study raises doubts
about the continued validity of the ‘persistent objector’ doctrine. Study, Vol. I, p. xxxix. The U.S. Government
believes that the doctrine remains valid.”).
150

I RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES 32 (§102, Reporters’ Note 2)(1987) (“That a rule of customary law is not binding on any state indicating its dissent during the development of therule (Comment d) is an accepted application of the traditional principle that international law essentially depends onthe consent of states.”).
151

Refer to § 19.25 (2005 ICRC Study on Customary International Humanitarian Law).

34

means of determining the rules of international law. 152
Judicial decisions are generally consulted as only persuasive authority because a
judgment rendered by an international court generally binds only the parties to the case in respectof that particular case. 153 The legal reasoning underlying the decisions of the International Courtof Justice is not binding on States. 154 Similarly, the decisions of the International Criminal
Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda cannot,
as a strictly legal matter, “bind” other courts. 155
The legal principle of stare decisis does not generally apply between international
tribunals, i.e., customary international law does not require that one international tribunal follow
the judicial precedent of another tribunal in dealing with questions of international law. 156
Moreover, depending on the international tribunal, a tribunal may not be bound by its priordecisions. Some international courts, however, may adhere to their own prior decisions in
152

ICJ STATUTE art. 38(1) (“The Court, whose function is to decide in accordance with international law suchdisputes as are submitted to it, shall apply: … d. subject to the provisions of Article 59, judicial decisions … as
subsidiary means for the determination of rules of law.”).
153

See, e.g., ICJ STATUTE art. 59 (“The decision of the Court has no binding force except between the parties and inrespect of that particular case.”).

154

John B. Bellinger, III, Legal Adviser, Department of State, 2006 DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 1024 (“We believe that these concerns were largely borne out in the advisory opinion
rendered by the Court. In practice, the opinion has made little meaningful contribution to efforts to resolve issues
between the Israelis and Palestinians. Also, the Court’s opinion is open to criticism on its treatment of both factualand legal issues, in some cases due more to process than to any fault on the part of the Court. For example, the factthat the General Assembly had already declared itself on many of the issues, risks creating the impression that the
Court was being used to advance a particular set of political claims. Also of concern are efforts in some quarters tosuggest that aspects of the Court’s advisory opinion, such as that relating to the extraterritorial application of theInternational Covenant on Civil and Political Rights, have binding force on member states in contexts that go
beyond those addressed in the advisory opinion. This of course, is not the case. Under the ICJ statute, states arebound only by the decisions—and not by the Court’s reasoning underlying those decisions—in contentious cases towhich they are parties, and advisory opinions have no binding force at all, but rather serve to provide guidance on
legal questions to the UN organ or specialized agency requesting them.”).
155

Harold Hongju Koh, Legal Adviser, Department of State, Remarks on international criminal justice at the Vera
Institute of Justice in New York and at Leiden University, Campus The Hague, 2012 DIGEST OF UNITED STATESPRACTICE IN INTERNATIONAL LAW 61, 67 (“The ICTY and ICTR began developing a modern jurisprudence ofcriminal liability that was based on existing law as applied to a modern ethnic conflict. One of the ICTY’s earlyaccomplishments was the Dusko Tadic case, which involved a relatively low-level offender who -- had he beencaught only a few years later -- would have been referred to Bosnia for domestic prosecution. The Tadic decision
provided a reasoned basis for the seminal conclusions that (1) the UN Security Council had the authority to set up acriminal court under Chapter VII of the UN Charter; (2) the tribunal’s jurisdiction extended to war crimes
committed in the course of a non-international armed conflict; and (3) Tadic could be convicted for his association
with a small group of offenders, articulating the concept of joint criminal enterprise (“JCE”) that later became acentral feature of the ICTY’s work. … The post-WWII tribunals had largely ignored sexual violence, but the ICTY
and ICTR situated the issue within the existing law of war crimes, crimes against humanity, and genocide. Althoughthese decisions cannot, as a strictly legal matter ‘bind’ other courts, there is no doubt that the jurisprudence of the
ICTY and ICTR has been influential in the broader development of international criminal law.”).
156

I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 36-37 (§103, comment b) (1987)(“That provision [Article 59 of the Statute of the ICJ] reflects the traditional view that there is no stare decisis ininternational law.”).

35

resolving a case absent a sufficiently persuasive reason to reconsider the point of law. 157
1.9.2 Legal Writings of Highly Qualified Publicists. The writings “of the most highly
qualified publicists” have sometimes been used as a subsidiary means of determining the rules ofinternational law. 158 For example, classical publicists, such as Hugo Grotius and Emmerich de
Vattel, and recognized scholars, such as Francis Lieber and Hersch Lauterpacht, have been
widely cited and relied upon as practitioners have sought to interpret and apply the law of war.
The standard for whose writings should be relied upon is high, and writings are only as
authoritative as the evidence upon which they are based. The writings should only be relied
upon to the degree they accurately reflect existing law, rather than the author’s views about what
the law should be. 159
1.10 LEGAL FORCE OF THE LAW OF WARThis section addresses the technical legal force of the law of war under international and
U.S. domestic law. As a matter of policy, DoD personnel may be required to adhere to law of
war rules, even where the rules do not technically apply as a matter of law. 160
1.10.1 Legal Force of the Law of War Under International Law. The technical force of alaw of war rule depends on whether it takes the form of a treaty or customary international law.
1.10.1.1 Legal Force of Treaties Among States. Under international law, every
treaty in force is binding upon the Parties to it and must be performed by them in good faith. 161
A treaty enters into force for a State after, inter alia, it has provided its consent to be bound by
the treaty. 162 In some cases, the terms of a treaty may cause it to expire, and in other cases,
157

See, e.g., Prosecutor v. Aleksovski, ICTY Appeals Chamber, IT-95-14/1-A, Judgment, ¶¶107-109 (Mar. 24,
2000) (“[I]in the interests of certainty and predictability, the Appeals Chamber should follow its previous decisions,but should be free to depart from them for cogent reasons in the interests of justice. … It is necessary to stress thatthe normal rule is that previous decisions are to be followed, and departure from them is the exception. The Appeals
Chamber will only depart from a previous decision after the most careful consideration has been given to it, both as
to the law, including the authorities cited, and the facts.”).
158

ICJ STATUTE art. 38(1) (“The Court, whose function is to decide in accordance with international law suchdisputes as are submitted to it, shall apply: … d. subject to the provisions of Article 59, … the teachings of the mosthighly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.”).
159

See The Paquete Habana, 175 U.S. 677, 700 (1900) (“For this purpose, where there is no treaty, and nocontrolling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized
nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research andexperience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works areresorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but fortrustworthy evidence of what the law really is.”).

160

Refer to § 3.1.1 (DoD Practice of Applying Law of War Rules Even When Not Technically Applicable).

161

Consider VCLT art. 26 (“Every treaty in force is binding upon the parties to it and must be performed by them ingood faith.”).
162

Consider VCLT art. 24 (“1. A treaty enters into force in such manner and upon such date as it may provide or as
the negotiating States may agree. 2. Failing any such provision or agreement, a treaty enters into force as soon asconsent to be bound by the treaty has been established for all the negotiating States. 3. When the consent of a State
to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for36

States may withdraw from a treaty. 163 In some cases, a reservation may also modify the
obligations imposed by a treaty on that State. 164
A treaty does not create either obligations or rights for a third State without its consent. 165
Thus, a treaty generally would not be binding on non-Parties to the treaty or create rights or
obligations for a non-Party to the treaty with respect to a Party to the treaty. Instead, a treaty
only creates law (i.e., rights that may be invoked) as between the States that are Parties to it. 166
1.10.1.2 Legal Force of Customary International Law Among States. The
customary law of war generally binds all States. However, States that have objected to acustomary international law rule during its development are not bound by that rule. 167
1.10.1.3 Predominately Inter-State Nature of International Obligations.
International obligations are generally viewed as running to other States, although individuals
may have responsibility under international law.
Traditionally, international law has governed relations between States, although over timeit has increasingly regulated the relationships between States and persons. Under the traditionalview, a State’s international law obligations run to other States, even when the obligations relate
to an individual (e.g., by protecting that individual), such that individuals’ “place in international
life depends largely on their status as nationals of states.” 168 For example, the 1949 Geneva
Conventions and the customary law of war do not provide a private right for individuals to claim
compensation directly from a State for violations of the law of war; rather, such claims are madethat State on that date, unless the treaty otherwise provides. 4. The provisions of a treaty regulating theauthentication of its text, the establishment of the consent of States to be bound by the treaty, the manner or date ofits entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entry
into force of the treaty apply from the time of the adoption of its text.”). See also DEPARTMENT OF THE ARMY
PAMPHLET 27-161-1, I International Law: Law of Peace, ¶8-12 (Sept. 1, 1979) (“An international agreement isbasically a contract between states, and elements of obligation akin to those found in municipal contract law arepresent. However, as discussed in Part I, a treaty is not a contract in the common law sense of an agreement
requiring consideration. It is the assent to be bound and not reciprocity or quid pro quo that obligates the parties.”).
163

Refer to § 1.7.3 (Withdrawal From Treaties).

164

Refer to § 1.7.2 (Reservations to Treaties).

165

Consider VCLT art. 34 (“A treaty does not create either obligations or rights for a third State without its
consent.”).
166

Case Concerning Certain German Interests in Polish Upper Silesia (Merits) (Germany v. Poland) 1925 P.C.I.J.
(series A) No. 7, at 29 (“A treaty only creates law as between the States which are parties to it; in case of doubt, norights can be deduced from it in favour of third States.”).
167

Refer to § 1.8.4 (Objection During Development).

168

I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 71 (1987). See also II
RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 217 (§713, comment a) (1987)(explaining that in principle, state responsibility for injury to the nationals of other states “is to the state of thealien’s nationality and gives that state a claim against the offending state. The claim derives from injury to anindividual, but once espoused it is the state’s claim, and can be waived by the state.”).

37

by other States. 169
International law has long prescribed certain rules regulating the conduct ofindividuals. 170 Under international law, there may be responsibility for individuals, apart fromState responsibility. 171
1.10.1.4 Force of International Law Notwithstanding a State’s Domestic Law. A
State’s domestic law does not justify that State’s noncompliance with an international obligation
as a matter of international law. 172 Similarly, the fact that a State’s domestic law does notprovide for a penalty with respect to a violation of international law does not relieve a personfrom responsibility for that act under international law. 173
1.10.2 Force of the Law of War Under U.S. Domestic Law. The specific legal force of alaw of war rule under U.S. domestic law may depend on whether that rule takes the form of aself-executing treaty, non-self-executing treaty, or customary international law.
Longstanding DoD policy has been to require DoD personnel to comply with the law of
war obligations of the United States. 174
Even if a violation of a rule is not directly punishable under U.S. law, a variety of tools in
U.S. domestic law may be used to enforce a law of war obligation of the United States. For
example, a violation of a law of war obligation may be made punishable through implementationof the obligation in military instructions, regulations, and procedures. 175
1.10.2.1 Force of Self-Executing and Non-Self-Executing Treaties Under U.S.
Domestic Law. Under domestic law, treaties to which the United States is a Party are part of
U.S. law. 176

169

Refer to § 18.16.4 (No Private Right to Compensation Under Customary International Law or the 1949 Geneva
Conventions).
170

See Sosa v. Alvarez-Machain, 542 U.S. 692, 715 (2004) (noting that international law has included “a body ofjudge-made law regulating the conduct of individuals situated outside domestic boundaries” and “rules binding
individuals for the benefit of other individuals [that] overlapped with the norms of state relationships”).

171

Refer to § 18.22.1 (Individual Criminal Responsibility for Acts Constituting Crimes Under International Law).

172

Secretary of State Bayard, Instruction to Mr. Connery, charge to Mexico, Nov. 1, 1887, II MOORE’S DIGEST 235(“[A] government can not appeal to its municipal regulations as an answer to demands for the fulfillment ofinternational duties. Such regulations may either exceed or fall short of the requirements of international law, and ineither case that law furnishes the test of the nation’s liability and not its own municipal rules.”). Consider VCLT art.
27 (“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This
rule is without prejudice to article 46.”).

173

Refer to § 18.22.2 (Absence of Penalty Under Domestic Law Does Not Relieve a Person of Responsibility).

174

Refer to § 18.1.1 (DoD Policy on Implementing and Enforcing the Law of War).

175

Refer to § 18.7 (Instructions, Regulations, and Procedures to Implement and Enforce the Law of War).

176

See U.S. CONSTITUTION art. VI (“This Constitution, and the laws of the United States which shall be made inpursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be

38

The terms “self-executing” and “non-self-executing” may be used to explain how a treaty
is to take effect in U.S. domestic law. A treaty may be classified as a self-executing treaty that
“operates of itself, without the aid of any legislative provision,” or as a non-self-executing treaty
that would require “that the Legislature must execute the contract before it can become a rule for
the Court.” 177
1.10.2.2 Force of Customary International Law Under U.S. Domestic Law. The
customary law of war is part of U.S. law insofar as it is not inconsistent with any treaty to which
the United States is a Party, or a controlling executive or legislative act. 178
1.11 JUS AD BELLUM
The law of war has been categorized into jus ad bellum (law concerning the resort toforce) and jus in bello (law concerning conduct during war). 179 Although jus ad bellum is an
essential part of the law of war to consider in the political process of whether to resort to militaryforce, this manual focuses on jus in bello. 180 Although jus in bello rules generally operate
independently of whether a side has comported with jus ad bellum in the resort to force, parts ofjus ad bellum are relevant to jus in bello. 181
This section provides a brief overview of some basic aspects of jus ad bellum. Jus adbellum issues might raise questions of national policy that, in the Executive Branch, would be
the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution orlaws of any State to the contrary notwithstanding.”).
177

Foster & Elam v. Neilson 27 U.S. 253, 314 (1829) (Marshall, C.J.). See also Whitney v. Robertson, 124 U.S.
190, 194 (1888) (“A treaty is primarily a contract between two or more independent nations, and is so regarded by
writers on public law. For the infraction of its provisions a remedy must be sought by the injured party throughreclamations upon the other. When the stipulations are not self-executing, they can only be enforced pursuant tolegislation to carry them into effect, and such legislation is as much subject to modification and repeal by Congress
as legislation upon any other subject. If the treaty contains stipulations which are self-executing, that is, require no
legislation to make them operative, to that extent they have the force and effect of a legislative enactment.”);Medellin v. Texas, 552 U.S. 491, 525-26 (2008) (“The responsibility for transforming an international obligation
arising from a non-self-executing treaty into domestic law falls to Congress.”).
178

The Paquete Habana, 175 U.S. 677, 700 (1900) (“International law is part of our law, … where there is no treaty
and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages ofcivilized nations,”).
179

See, e.g., WILLIAM O‘BRIEN, THE CONDUCT OF JUST AND LIMITED WAR 9 (1981) (defining jus ad bellum as the“doctrines concerning permissible recourse to war” and jus in bello as “the just conduct of war”); MICHAELWALZER, JUST AND UNJUST WARS 21 (1977) (“War is always judged twice, first with reference to the reasons states
have for fighting, secondly with reference to the means they adopt. The first kind of judgment is adjectival incharacter: we say that a particular war is just or unjust. The second is adverbial: we say that a war is being fought
justly or unjustly. Medieval writers made the difference a matter of prepositions, distinguishing jus ad bellum, thejustice of war, from jus in bello, justice in war.”). But see Robert Kolb, Origin of the twin terms jus ad bellum/jus in
bello, 37 INTERNATIONAL REVIEW OF THE RED CROSS 553 (Sept.-Oct. 1997) (“The august solemnity of Latin confers
on the terms jus ad bellum and jus in bello the misleading appearance of being centuries old. In fact, these
expressions were only coined at the time of the League of Nations and were rarely used in doctrine or practice until
after the Second World War, in the late 1940s to be precise.”).
180

Refer to § 1.1.2 (Scope).

181

Refer to § 3.5 (Relationship Between Jus in Bello and Jus ad Bellum).

39

decided by the President. In U.S. practice, legal advice provided to national-level principal
officials on such issues generally would need to be addressed through interagency discussions
coordinated by the legal adviser to the National Security Council, including consultation andcoordination among senior counsel of relevant U.S. departments and agencies.
1.11.1 Jus ad Bellum Criteria. Certain jus ad bellum criteria have, at their philosophicalroots, drawn from principles that have been developed as part of the Just War Tradition. 182
These principles have included:•

a competent authority to order the war for a public purpose;•a just cause (such as self-defense);•

the means must be proportionate to the just cause;•

all peaceful alternatives must have been exhausted; and•a right intention on the part of the just belligerent. 183

These principles may be reflected in modern law of war rules. For example, the Charterof the United Nations recognizes the inherent right of States to use force in individual orcollective self-defense—a just cause for military action. 184
These principles have also been incorporated into military doctrine. 185
1.11.1.1 Competent Authority (Right Authority) to Wage War for a Public
Purpose. One longstanding criterion for a just war is that war must be ordered by a competentauthority for a public purpose. This jus ad bellum principle (sometimes called right authority)
acknowledges that the resort to military force is a prerogative of the State. 186
182

Refer to § 1.6.4 (Just War Tradition).

183

WILLIAM O’BRIEN, THE CONDUCT OF JUST AND LIMITED WAR 16 (1981) (“The decision to invoke theexceptional rights of war must be based on the following criteria: there must be competent authority to order the
war for a public purpose; there must be a just cause (it may be self-defense or the protection of rights by offensivewar) and the means must be proportionate to the just cause and all peaceful alternatives must have been exhausted;
and there must be right intention on the part of the just belligerent.”).

184

Refer to § 1.11.4.1 (Use of Force in Self-Defense).

185

MARINE CORPS DOCTRINAL PUBLICATION 1-1, Strategy, 93, 95 (1997) (“[T]he just war criteria provide objective
measures from which to judge our motives. The effective strategist must be prepared to demonstrate to all sides
why the defended cause meets the criteria of just war theory and why the enemy’s cause does not. If a legitimate
and effective argument on this basis cannot be assembled, then it is likely that both the cause and the strategy arefatally flawed.”).
186

See Talbot v. Janson, 3 U.S. 133, 160-61 (1795) (Iredell, J., concurring) (“[N]o hostilities of any kind, except innecessary self-defence, can lawfully be practised by one individual of a nation, against an individual of any othernation at enmity with it, but in virtue of some public authority. War can alone be entered into by national authority;
it is instituted for national purposes, and directed to national objects; and each individual on both sides is engaged in
it as a member of the society to which he belongs, not from motives of personal malignity and ill will.”); VATTEL,
THE LAW OF NATIONS 235 (3.1.4) (“It is the sovereign power alone, therefore, which has the right to make war.”);40

The criterion that war must be ordered by a competent authority for a public purpose isreflected in the requirement that armed groups must belong to a State to receive the privileges ofcombatant status. 187 This criterion is also reflected in the general denial to private persons of theentitlement to the privileges of combatant status. 188 This criterion is also reflected in thecondemnation under international law of certain types of private acts of hostility (such as piracy
or terrorism) outside the context of patriotic resistance against an enemy State during
international armed conflict. 189
1.11.1.2 The Means Must Be Proportionate to the Just Cause (Proportionality –Jus ad Bellum). Proportionality involves a weighing of the contemplated actions with thejustification for taking action. 190 For example, the proportionality of the measures taken in selfdefense is to be judged according to the nature of the threat being addressed. 191 Force may be
used in self-defense, but only to the extent that it is required to repel the armed attack and torestore the security of the party attacked. 192 As an illustration, assessing the proportionality ofmeasures taken in self-defense may involve considerations of whether an actual or imminent
attack is part of an ongoing pattern of attacks or what force is reasonably necessary to discourage
future armed attacks or threats thereof. 193

GROTIUS, LAW OF WAR & PEACE 97 (1.3.4.2) (“But because the whole state is endangered by war, provision has
been made by the laws of almost every state that war may be waged only under the authority of him who holds thesovereign power in the state.”).
187

Refer to § 4.6.2 (Belonging to a Party to the Conflict).

188

Refer to § 4.18.3 (Private Persons Who Engage in Hostilities – Lack of the Privileges of Combatant Status).

189

Refer to § 4.18.5 (Private Persons Who Engage in Hostilities and the Law of War).

190

Refer to § 2.4 (Proportionality).

191

William H. Taft IV, Legal Adviser, Department of State, Self-Defense and the Oil Platforms Decision, 29 YALEJOURNAL OF INTERNATIONAL LAW 295, 305-06 (2004) (“There is no requirement in international law that a State
exercising its right of self-defense must use the same degree or type of force used by the attacking State in its mostrecent attack. Rather, the proportionality of the measures taken in self-defense is to be judged according to thenature of the threat being addressed… . A proper assessment of the proportionality of a defensive use of force
would require looking not only at the immediately preceding armed attack, but also at whether it was part of an
ongoing series of attacks, what steps were already taken to deter future attacks, and what force could reasonably be
judged to be needed to successfully deter future attacks.”).
192

Counter-memorial and Counter-claim Submitted by the United States of America, International Court of Justice,Case Concerning Oil Platforms (Iran v. United States) 141 (¶4.31) (Jun. 23, 1997) (“Actions in self-defense must be
proportionate. Force can be used in self-defense, but only to the extent that it is required to repel the armed attack
and to restore the security of the party attacked.”).
193

Herbert S. Okun, Letter Dated 14 April 1986 from the Acting Permanent Representative of the United States ofAmerica to the United Nations Addressed to the President of the Security Council, U.N. Doc. S/17990 (Apr. 14,
1986) (“The United States objective was to destroy facilities used to carry out Libya’s hostile policy of international
terrorism and to discourage Libyan terrorist attacks in the future. These facilities constituted essential elements
which have enabled Libyan agents to carry out deadly missions against U.S. installations and innocent
individuals.”); Madeleine Albright, Letter Dated 26 June 1993 from the Permanent Representative of the UnitedStates of America to the United Nations Addressed to the President of the Security Council, U.N. Doc. S/26003 (Jun.
26, 1993) (“Accordingly, as a last resort, the United States has decided that it is necessary to respond to theattempted attack and the threat of further attacks by striking at an Iraqi military and intelligence target that is
involved in such attacks. … It is the sincere hope of the United States Government that such limited and

41

The jus ad bellum criterion of proportionality is different from the jus in bello principle
of proportionality in conducting attacks. 194 These concepts should not be confused with one
another. 195
1.11.1.3 All Peaceful Alternatives Must Have Been Exhausted (Necessity – Jus ad
Bellum). The jus ad bellum condition of necessity requires that no reasonable alternative meansof redress are available. 196 For example, in exercising the right of self-defense, diplomaticmeans must be exhausted or provide no reasonable prospect of stopping the armed attack or
threat thereof. 197
The jus ad bellum criterion of necessity is different from the jus in bello concept of
military necessity. 198
1.11.2 U.N. Charter Framework and the U.N. Security Council. The Charter of theUnited Nations provides the modern treaty framework for jus ad bellum. Under the Charter of
the United Nations, the U.N. Security Council has primary responsibility for the maintenance ofinternational peace and security. 199 The U.N. Security Council may determine the existence ofany threat to the peace, breach of the peace, or act of aggression, and may decide what measures
shall be taken under the Charter to maintain or restore international peace and security. 200 For
proportionate action may frustrate future unlawful actions on the part of the Government of Iraq and discourage or
preempt such activities.”).
194

Refer to § 5.10 (Proportionality in Conducting Attacks).

195

Refer to § 3.5.1 (General Distinction Between Jus in Bello and Jus ad Bellum).

196

William H. Taft IV, Legal Adviser, Department of State, Self-Defense and the Oil Platforms Decision, 29 YALEJOURNAL OF INTERNATIONAL LAW 295, 304 (2004) (“The condition of ‘necessity,’ rather, requires that noreasonable alternative means of redress are available.”).
197

For example, Madeleine Albright, Letter Dated 26 June 1993 from the Permanent Representative of the UnitedStates of America to the United Nations Addressed to the President of the Security Council, U.N. Doc. S/26003 (Jun.
26, 1993) (“Based on the pattern of the Government of Iraq’s behavior, including the disregard for international law
and Security Council resolutions, the United States has concluded that there is no reasonable prospect that new
diplomatic initiatives or economic measures can influence the current Government of Iraq to cease planning futureattacks against the United States. Accordingly, as a last resort, the United States has decided that it is necessary to
respond to the attempted attack and the threat of further attacks by striking at an Iraqi military and intelligence target
that is involved in such attacks.”); Thomas R. Pickering, Letter Dated 20 December 1989 from the Permanent
Representative of the United States of America to the United Nations Addressed to the President of the Security
Council, U.N. Doc. S/21035 (Dec. 20, 1989) (“The United States has exhausted every available diplomatic means toresolve peacefully disputes with Mr. Noriega, who has rejected all such efforts. Action by the United States was
taken after Mr. Noriega declared on 15 December that a state of war existed with the United States, and following
brutal attacks by forces of Mr. Noriega on lawfully present American personnel, murdering one American andinjuring and threatening others.”).
198

Refer to § 2.2 (Military Necessity).

199

U.N. CHARTER art. 24(1) (“In order to ensure prompt and effective action by the United Nations, its Members
confer on the Security Council primary responsibility for the maintenance of international peace and security, andagree that in carrying out its duties under this responsibility the Security Council acts on their behalf.”).

200

U.N. CHARTER art. 39 (“The Security Council shall determine the existence of any threat to the peace, breach of
the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken inaccordance with Articles 41 and 42, to maintain or restore international peace and security.”).

42

example, the U.N. Security Council may recognize that a State is acting lawfully in self-defenseor that another State is the aggressor in an armed conflict. 201 In addition, the U.N. Security
Council may authorize the use of military force. 202
1.11.2.1 U.N. Member State Obligations With Respect to U.N. Security Council
Decisions. Members of the United Nations have agreed to give the United Nations every
assistance in any action it takes in accordance with the Charter and to refrain from giving
assistance to any State against which the United Nations is taking preventive or enforcement
action. 203
Members of the United Nations have agreed to accept and carry out the decisions of the
U.N. Security Council in accordance with the Charter. 204 They have also agreed to join inaffording mutual assistance in carrying out the measures decided upon by the U.N. Security
Council. 205
Moreover, in the event of a conflict between the obligations of the Members of theUnited Nations under the Charter and their obligations under any other international agreement,
their obligations under the Charter prevail. 206
1.11.3 Prohibition on Certain Uses of Force. Under Article 2(4) of the Charter of theUnited Nations, “[a]ll Members shall refrain in their international relations from the threat or use
of force against the territorial integrity or political independence of any State, or in any othermanner inconsistent with the Purposes of the United Nations. 207 Numerous other treaties also

201

For example, U.N. SECURITY COUNCIL RESOLUTION 661, U.N. Doc. S/RES/661 (1990) (“Affirming the inherent
right of individual or collective self-defence, in response to the armed attack of Iraq against Kuwait, in accordancewith Article 51 of the Charter,”); U.N. SECURITY COUNCIL RESOLUTION 1368, U.N. Doc. S/RES/1368 (2001)(“Determined to combat by all means threats to international peace and security caused by terrorist acts, Recognizing
the inherent right of individual or collective self-defence in accordance with the Charter, 1. Unequivocally condemns
in the strongest terms the horrifying terrorist attacks which took place on 11 September 2001 in New York,
Washington, D.C. and Pennsylvania and regards such acts, like any act of international terrorism, as a threat tointernational peace and security;”).
202

Refer to § 1.11.4.2 (Use of Force Authorized by the U.N. Security Council Acting Under Chapter VII of theCharter of the United Nations).
203

U.N. CHARTER art. 2(5) (“All Members shall give the United Nations every assistance in any action it takes inaccordance with the present Charter, and shall refrain from giving assistance to any state against which the United
Nations is taking preventive or enforcement action.”).

204

U.N. CHARTER art. 25 (“The Members of the United Nations agree to accept and carry out the decisions of the
Security Council in accordance with the present Charter.”).
205

U.N. CHARTER art. 49 (“The Members of the United Nations shall join in affording mutual assistance in carryingout the measures decided upon by the Security Council.”).

206

U.N. CHARTER art. 103 (“In the event of a conflict between the obligations of the Members of the United Nations
under the present Charter and their obligations under any other international agreement, their obligations under thepresent Charter shall prevail.”).

207

U.N. CHARTER art. 2(4).

43reflect these prohibitions on the threat or use of force. 208
The resort to force must have a legal basis in order not to violate these prohibitions. The
legality of the use of force must be assessed in light of the particular facts and circumstances atissue. 209
1.11.3.1 Aggression. Aggression is the most serious and dangerous form of theillegal use of force. 210 Not every act of illegal use of force prohibited by Article 2(4) of theCharter constitutes aggression. 211 Initiating a war of aggression is a serious international
crime. 212
U.N. General Assembly Resolution 3314 suggested considerations that the Security
Council should bear in mind in determining whether an act of aggression had occurred. 213
208

See, e.g., Inter-American Treaty of Reciprocal Assistance, art. 1, Sept. 2, 1947, 62 STAT. 1681, 1700 (“The HighContracting 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 of thisTreaty.”); Treaty Providing for the Renunciation of War as an Instrument of National Policy, art. 1, Aug. 27, 1928,
46 STAT. 2343, 2345-46 (“The High Contracting Parties solemnly declare in the names of their respective peoples
that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of
national policy in their relations with one another.”).
209

See, e.g., William H. Taft IV, Legal Adviser, Department of State, & Todd F. Buchwald, Assistant Legal Adviser
for Political-Military Affairs, Department of State, Preemption, Iraq, and International Law, 97 AJIL 557 (2003)(“In the end, each use of force must find legitimacy in the facts and circumstances that the state believes have madeit necessary. Each should be judged not on abstract concepts, but on the particular events that gave rise to it.”);Daniel Webster, Letter to Mr. Fox, Apr. 24, 1841, reprinted in DANIEL WEBSTER, THE DIPLOMATIC AND OFFICIALPAPERS OF DANIEL WEBSTER, WHILE SECRETARY OF STATE 105 (1848) (“It is admitted that a just right of selfdefense attaches always to nations as well as to individuals, and is equally necessary for the preservation of both.
But the extent of this right is a question to be judged of by the circumstances of each particular case;”).
210

Definition of Aggression, preamble ¶5, Annex to U.N. GENERAL ASSEMBLY RESOLUTION 3314 (XXIX),
Definition of Aggression, U.N. Doc. A/RES/3314 (XXIX) (Dec. 14, 1974) (“Considering also that, since aggressionis the most serious and dangerous form of the illegal use of force, being fraught, in the conditions created by theexistence of all types of weapons of mass destruction, with the possible threat of a world conflict and all its
catastrophic consequences, aggression should be defined at the present stage.”).

211

Joseph Sanders, Rapporteur, The Special Committee on the Question of Defining Aggression, Report of theSpecial Committee on the Question of Defining Aggression, Annex 1: Views expressed by members of the Special
Committee at the concluding stage of the Special Committee’s session, U.N. General Assembly Official Records:
Twenty-Ninth Session Supplement No. 19, U.N. Doc. A/9619, 22-23 (Mar. 11-Apr. 12, 1974) (“Mr.
ROSENSTOCK (United States of America) … The fifth preambular paragraph, while recognizing the dangers
which would flow from an illegal use of force amounting to aggression, correctly stated the view that not every act
of force in violation of the Charter constituted aggression.”).
212

United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT 421(“To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crimediffering only from other war crimes in that it contains within itself the accumulated evil of the whole.”).
213

Joseph Sanders, Rapporteur, The Special Committee on the Question of Defining Aggression, Report of theSpecial Committee on the Question of Defining Aggression, Annex 1: Views expressed by members of the Special
Committee at the concluding stage of the Special Committee’s session, U.N. General Assembly Official Records:
Twenty-Ninth Session Supplement No. 19, U.N. Doc. A/9619, 22-23 (Mar. 11-Apr. 12, 1974) (“Mr.
ROSENSTOCK (United States of America) … The text that had been produced was a recommendation of theGeneral Assembly for use by the Security Council. … In article 2, the definition suggested the considerations which
the Security Council should bear in mind in determining whether an act of aggression had occurred.”).

44

Although this resolution states basic principles as guidance for such determinations, it recognizes
that whether an act of aggression has been committed must be considered in light of all thecircumstances of each particular case. 214
The United States has expressed the view that the definition of the act of aggression in
the Kampala amendments to the Rome Statute does not reflect customary international law. 215
1.11.4 Rationales for the Resort to Force.
1.11.4.1 Use of Force in Self-Defense. The right to use force in self-defense is an
inherent right of States. 216
1.11.4.2 Use of Force Authorized by the U.N. Security Council Acting Under
Chapter VII of the Charter of the United Nations. Chapter VII of the Charter of the United
Nations provides that the U.N. Security Council may take such action by air, sea, or land forces
as may be necessary to maintain or restore international peace or security, including
demonstrations, blockade, and other military operations. 217
1.11.4.3 Use of Force With the Consent of the Territorial State. Military action in
the territory of another State is not a violation of Article 2(4)’s prohibition against the use offorce against that State where it consents to such military action. 218
1.11.4.4 Humanitarian Intervention. Violations of law of war treaties applicable
to non-international armed conflict generally have not been understood to provide an
214

Definition of Aggression, preamble ¶10, Annex to U.N. GENERAL ASSEMBLY RESOLUTION 3314 (XXIX),
Definition of Aggression, U.N. Doc. A/RES/3314 (XXIX) (Dec. 14, 1974) (“Believing that, although the question
whether an act of aggression has been committed must be considered in the light of all the circumstances of eachparticular case, it is nevertheless desirable to formulate basic principles as guidance for such determination,”).

215

Refer to § 18.20.3.4 (ICC and the Crime of Aggression).

216

Refer to § 1.11.5 (Use of Force in Self-Defense).

217

U.N. CHARTER art. 42 (“Should the Security Council consider that measures provided for in Article 41 would beinadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary
to maintain or restore international peace and security. Such action may include demonstrations, blockade, andother operations by air, sea, or land forces of Members of the United Nations.”).

218

For example, Davis R. Robinson, Legal Adviser, Department of State, Letter to Professor Edward Gordon,
Chairman of the Committee on Grenada Section on International Law and Practice American Bar Association on
The Legal Position of the United States on the Action taken in Grenada (Feb. 10, 1984), reprinted in 18
INTERNATIONAL LAWYERS 381 (1984) (“In the case of the action taken in Grenada, the legal position of the UnitedStates was based upon the application of a combination of three well established principles of international law…
(1) the lawful governmental authorities of a State may invite the assistance in its territory of military forces of otherstates or collective organizations in dealing with internal disorder as well as external threats.”); Statement of the
U.S. Government, attached to Adlai E. Stevenson, Letter Dated 24 November 1964 From the Permanent
Representative of the United States of America Addressed to the President of the Security Council, U.N. Doc.
S/6062, Nov. 24, 1964 (“The United States Government has just received confirmation that a short time ago - earlymorning of 24 November in the Congo - a unit of Belgian paratroopers, carried by United States military transportplanes, landed at Stanleyville in the Congo. This landing has been made (1) with the authorization of theGovernment of the Congo, (2) in conformity with our adherence to the Geneva Conventions, and (3) in exercise of
our clear responsibility to protect United States citizens under the circumstances existing in the Stanleyville area.”).

45

independent basis for intervening in a State. 219
Although the United Kingdom and certain other States have argued that intervention forhumanitarian reasons may be a legal basis for the resort to force, the United States has not
adopted this legal rationale. 220 Consistent with this view, the United States did not adopt thistheory as a legal rationale for NATO’s military action to address the humanitarian catastrophe in
Kosovo in 1999, but rather expressed the view that such action was justified on the basis of anumber of factors. 221
Military action for humanitarian reasons may, however, be authorized by the U.N.
Security Council. 222
1.11.5 Use of Force in Self-Defense. Article 51 of the Charter of the United Nations
provides that “[n]othing in the present Charter shall impair the inherent right of individual orcollective self-defence if an armed attack occurs against a Member of the United Nations, until
the Security Council has taken measures necessary to maintain international peace and219

Refer to § 17.18.1 (Duty of Non-Belligerent States to Refrain From Supporting Hostilities by Non-State Armed
Groups Against Other States).
220

William H. Taft IV, Legal Adviser, Department of State, Role and Significance of International Law Governing
the Use of Force in the New Global Context Confronting the United States After 9/11: remarks regarding the use offorce under international law (Oct. 27, 2004) (“Of particular note, the idea that humanitarian catastrophes must be
avoided has been asserted as a reason for rethinking what actions international law permits in a number of situations.
NATO’s intervention in Kosovo in 1999 is a case to consider in this connection. In defending the legality ofNATO’s actions, the United Kingdom and several other allies asserted a doctrine of humanitarian intervention,
under which states have a right to use force if it is necessary to prevent genocide, a major loss of civilian life, or alarge scale forced movement of a population, which would destabilize other states and threaten international peaceand security. In this view, the humanitarian intervention doctrine is often presented as a necessary extension ofhumanitarian law as it has evolved since 1945. Significantly, the doctrine was invoked in the absence ofauthorization by the UN Security Council. The United States did not, however, adopt this theory as a basis for theNATO intervention in Kosovo, and instead pointed to a range of other factors to justify its participation in the
Kosovo campaign.”).
221

David Andrews, Legal Adviser, Department of State, Oral Proceedings, May 11, 1999, Legality of Use of Force(Yugoslavia v. United States) I.C.J. 10 (¶1.7) (“As you have already heard, the actions of the Members of the NATO
Alliance find their justification in a number of factors. These include: - The humanitarian catastrophe that has
engulfed the people of Kosovo as a brutal and unlawful campaign of ethnic cleansing has forced many hundreds ofthousands to flee their homes and has severely endangered their lives and well-being; - The acute threat of theactions of the Federal Republic of Yugoslavia to the security of neighbouring States, including threat posed byextremely heavy flows of refugees and armed incursions into their territories; - The serious violation of international
humanitarian law and human rights obligations by forces under the control of the Federal Republic of Yugoslavia,
including widespread murder, disappearances, rape, theft and destruction of property; and, finally - The resolutionsof the Security Council, which have determined that the actions of the Federal Republic of Yugoslavia constitute a
threat to peace and security in the region and, pursuant to Chapter VII of the Charter, demanded a halt to suchactions.”).
222

For example, U.N. SECURITY COUNCIL RESOLUTION 1973, U.N. Doc. S/RES/1973, ¶4 (Mar. 17, 2011) (“[ThisResolution] [a]uthorizes Member States that have notified the Secretary-General, acting nationally or throughregional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary
measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas
under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation
force of any form on any part of Libyan territory … .”).

46

security.” 223
The Charter of the United Nations was not intended to supersede a State’s inherent rightof individual or collective self-defense in customary international law. 224
To constitute legitimate self-defense under customary international law, it is generally
understood that the defending State’s actions must be necessary. 225 For example, reasonably
available peaceful alternatives must be exhausted. 226 In addition, the measures taken in selfdefense must be proportionate to the nature of the threat being addressed. 227
1.11.5.1 Responding to an Imminent Threat of an Attack. The text of Article 51of the Charter of the United Nations refers to the right of self-defense “if an armed attack occurs
against a Member of the United Nations.” 228 Under customary international law, States had, andcontinue to have, the right to take measures in response to imminent attacks. 229
1.11.5.2 Use of Force Versus Armed Attack. The United States has long taken theposition that the inherent right of self-defense potentially applies against any illegal use offorce. 230 Others, however, would be inclined to draw more of a distinction between “armed
223

U.N. CHARTER art. 51.

224

Abraham D. Sofaer, Terrorism, the Law, and the National Defense, 126 MILITARY LAW REVIEW 89, 94 (1989)(“The United States rejects the notion that the U.N. Charter supersedes customary international law on the right ofself-defense. Article 51 characterizes that right as ‘inherent’ in order to prevent its limitation based on any provisionin the Charter. We have always construed the phrase ‘armed attack’ in a reasonable manner, consistent with acustomary practice that enables any State effectively to protect itself and its citizens from every illegal use of force
aimed at the State.”).

225

William H. Taft IV, Legal Adviser, Department of State, Self-Defense and the Oil Platforms Decision, 29 YALEJOURNAL OF INTERNATIONAL LAW 295, 304 (2004) (“To constitute legitimate self-defense under customaryinternational law, it is generally understood that the defending State’s actions must be both ‘necessary’ and‘proportional.’”).
226

Refer to § 1.11.1.3 (All Peaceful Alternatives Must Have Been Exhausted (Necessity – Jus ad Bellum)).

227

Refer to § 1.11.1.2 (The Means Must Be Proportionate to the Just Cause (Proportionality – Jus ad Bellum)).

228

U.N. CHARTER art. 51.

229

Lord Peter Henry Goldsmith, Attorney General, United Kingdom, Oral Answers to Questions, Apr. 21, 2004,
HANSARD 660 HOUSE OF COMMONS DEBATES §§ 370-71 (“It is argued by some that the language of Article 51
provides for a right of self-defence only in response to an actual armed attack. However, it has been the consistentposition of successive United Kingdom Governments over many years that the right of self-defence underinternational law includes the right to use force where an armed attack is imminent. It is clear that the language of
Article 51 was not intended to create a new right of self-defence. Article 51 recognises the inherent right of selfdefence that states enjoy under international law. … It is not a new invention. The charter did not therefore affectthe scope of the right of self-defence existing at that time in customary international law, which included the right touse force in anticipation of an imminent armed attack.”).
230

See Abraham D. Sofaer, Terrorism, the Law, and the National Defense, 126 MILITARY LAW REVIEW 89, 92-93(1989) (“The United States has long assumed that the inherent right of self defense potentially applies against any
illegal use of force, and that it extends to any group or State that can properly be regarded as responsible for suchactivities. These assumptions are supported in customary practice.”). See also William H. Taft IV, Legal Adviser,
Department of State, Self-Defense and the Oil Platforms Decision, 29 YALE JOURNAL OF INTERNATIONAL LAW 295,
300-01 (2004) (“A requirement that an attack reach a certain level of gravity before triggering a right of self-defense
would make the use of force more rather than less likely, because it would encourage States to engage in a series of47

attacks” and uses of force that do not give rise to the right to use force in self-defense. 231
1.11.5.3 Use of Force to Protect Nationals Abroad. A State’s right to use force inself-defense may be understood to include the right to use force to protect its nationals abroad. 232
The United States has taken action to protect U.S. nationals abroad when the government of theterritory in which they are located was unwilling or unable to protect them. 233 A State need not
await actual violence against its nationals before taking such action if an attack against them isimminent. 234
1.11.5.4 Right of Self-Defense Against Non-State Actors. The inherent right ofself-defense, recognized in Article 51 of the Charter of the United Nations, applies in response to
any “armed attack,” not just attacks that originate with States. 235 As with any other exercise ofsmall-scale military attacks, in the hope that they could do so without being subject to defensive responses.
Moreover, if States were required to wait until attacks reached a high level of gravity before responding with force,
their eventual response would likely be much greater, making it more difficult to prevent disputes from escalating
into full-scale military conflicts.”).
231

See, e.g., Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits,
Judgment, 1986 I.C.J. 14, 101 (¶191) (“As regards certain particular aspects of the principle in question, it will benecessary to distinguish the most grave forms of the use of force (those constituting an armed attack) from other lessgrave forms.”); id. at 126-27 (¶247) (“So far as regards the allegations of supply of arms by Nicaragua to the armed
opposition in El Salvador, the Court has indicated that while the concept of an armed attack includes the despatch by
one State of armed bands into the territory of another State, the supply of arms and other support to such bands
cannot be equated with armed attack. Nevertheless, such activities may well constitute a breach of the principle ofthe non-use of force and an intervention in the internal affairs of a State, that is, a form of conduct which is certainly
wrongful, but is of lesser gravity than an armed attack.”).
232

Ambassador William Scranton, U.S. Representative to the United Nations, Statement in the U.N. Security
Council regarding Israeli action at Entebbe, Jul. 12, 1976, 1976 DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 150 (“[T]here is a well-established right to use limited force for the protection of one’s own
nationals from an imminent threat of injury or death in a situation where the State in whose territory they are locatedeither is unwilling or unable to protect them. The right, flowing from the right of self defense, is limited to such use
of force as is necessary and appropriate to protect threatened nationals from injury.”).
233

For example, Jimmy Carter, Letter to Thomas P. O’Neal, Jr., Speaker of the House of Representatives, andWarren G. Magnuson, President pro tempore of the Senate regarding the rescue attempt for American hostages in
Iran, Apr. 26, 1980, 1980-I PUBLIC PAPERS OF THE PRESIDENTS 779 (“In carrying out this operation [to rescue theAmerican hostages in the U.S. embassy in Tehran] the United States was acting wholly within its right, in
accordance with Article 51 of the United Nations Charter, to protect and rescue its citizens where the government of
the territory in which they are located is unwilling or unable to protect them.”).
234

Kenneth W. Dam, Deputy Secretary of State, Statement before the House Committee on Foreign Affairs, Nov. 2,
1983, reprinted in 78 AJIL 200, 203-04 (1984) (“U.S. actions have been based on three legal grounds: … Third,
U.S. action to secure and evacuate endangered U.S. citizens on the island was undertaken in accordance with wellestablished principles of international law regarding the protection of one’s nationals. That the circumstances
warranted this action has been amply documented by the returning students themselves. There is absolutely no
requirement of international law that compelled the United States to await further deterioration of the situation thatwould have jeopardized a successful operation. Nor was the United States required to await actual violence against
U.S. citizens before rescuing them from the anarchic and threatening conditions the students have described.”).
235

See, e.g., In re Guantanamo Bay Litigation, Respondents’ Memorandum Regarding the Government’s Detention
Authority Relative to Detainees Held at Guantanamo Bay, Misc. No. 08-442, 4 (D.D.C., Mar. 13, 2009) (“Underinternational law, nations lawfully can use military force in an armed conflict against irregular terrorist groups suchas al-Qaida. The United Nations Charter, for example, recognizes the inherent right of states to use force in self
defense in response to any ‘armed attack,’ not just attacks that originate with states. United Nations Charter, art.

48

the right of self-defense, actions taken in self-defense against non-State actors must comply withapplicable international law. 236
1.11.5.5 Right of Collective Self-Defense. Article 51 of the Charter of the United
Nations also recognizes a right of States to engage in collective self-defense with a State that canlegitimately invoke its own right of national self-defense. Collective self-defense of a State must
proceed with that State’s consent, although this consent need not necessarily be expressed in theform of an explicit request. 237
Some treaties include commitments by States to assist one another in collective selfdefense. 238
1.11.5.6 Reporting to the U.N. Security Council. Measures taken in the exercise
of national self-defense shall be immediately reported to the U.N. Security Council. 239

51.”); U.S. Additional Response to the Request for Precautionary Measures—Detention of Enemy Combatants at
Guantanamo Bay, Cuba, Inter-American Commission on Human Rights, Jul. 15, 2002, 2002 DIGEST OF UNITEDSTATES PRACTICE IN INTERNATIONAL LAW 1008, 1011-12 (“The terrorist attacks of September 11 were not ordinarycriminal acts. … The international community has clearly recognized the right of the United States and allied forces
to resort to armed force in self-defense in response to these attacks. For instance, the United Nations explicitly
recognized the ‘inherent right of individual and collective self-defence’ immediately following September 11. It isin this context that NATO and others recognized that the September 11 attacks constituted an ‘armed attack,’ a
conclusion inherent in the UN Security Council’s recognition of the right of self-defense.”).
236

Refer to § 17.18.2 (Duty of Belligerent States to Respect the Sovereignty of Other States).

237

See also BRUNO SIMMA, THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 675 (1994) (“Art. 51 of theCharter allows not only individual, but also collective self-defence. The latter is not, as the wording might suggest,
restricted to a common, co-ordinated exercise of the right to individual self-defence by a number of states. … It is
not required for the exercise of the right of collective self-defence that the state invoking the right be under anobligation resulting from a treaty of assistance. Rather, it is sufficient, but also necessary, that the support be given
with the consent of the attacked state. But this consent does not, as the ICJ states for the right of self-defence undercustomary law, need to be declared in the form of an explicit ‘request’.”).
238

For example, The North Atlantic Treaty, Washington, D.C., Apr. 4, 1949, art. 5 (“The Parties agree that an armed
attack against one or more of them in Europe or North America shall be considered an attack against them all andconsequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual orcollective self-defense recognized by Article 51 of the Charter of the United Nations, will assist the Party or Parties
so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary,
including the use of armed force, to restore and maintain the security of the North Atlantic area.”).
239

U.N. CHARTER art. 51 (“Measures taken by Members in the exercise of this right of self-defence shall be
immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the
Security Council under the present Charter to take at any time such action as it deems necessary in order to maintainor restore international peace and security.”).

49

II – Principles
Chapter Contents
2.1 Introduction
2.2 Military Necessity
2.3 Humanity
2.4 Proportionality
2.5 Distinction
2.6 Honor
2.1 INTRODUCTION
Three interdependent principles – military necessity, humanity, and honor – provide thefoundation for other law of war principles, such as proportionality and distinction, and most of
the treaty and customary rules of the law of war.
This Chapter briefly addresses certain specific rules to illustrate these foundational
principles. For more information about a specific rule, practitioners should refer to the crossreferenced section that addresses that rule. 1
2.1.1 Legal Principles as Part of International Law. General principles of law common to
the major legal systems of the world are a recognized part of international law. 2 Law of war
principles have been understood to be included in this category of international law. 3

1

Refer to § 1.2.3 (Use of Cross-References in This Manual).

2

See ICJ STATUTE art. 38(1)(c) (providing that “the general principles of law recognized by civilized nations” are asource of applicable law for the court); I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITEDSTATES 24 (§102(1)(c)(4)) (1987) (including “general principles common to the major legal systems of the world,”
among sources of international law); Thirty Hogsheads of Sugar v. Boyle, 13 U.S. 191, 198 (1815) (Marshall, C.J.)(ascertaining international law includes “resort to the great principles of reason and justice”).
3

See BOTHE, PARTSCH, & SOLF, NEW RULES 44 (AP I art. 1, ¶2.10) (“Following the original clause in the preambleof the 1899 IV. Hague Convention on Land Warfare (para. 9) and para. 4 of the denunciation clause in theConventions (63/62/142/158) these principles are stated in the present text to be part of international law. They are‘general principles of law’ in the sense of Art. 38 of the Statute of the ICJ.”); Speech by Baron Descamps on theRules of Law to be applied, Annex No. 1 to 14th Meeting (Private), held at the Peace Palace, the Hague, on July
2nd, 1920, PERMANENT COURT OF INTERNATIONAL JUSTICE, ADVISORY COMMITTEE OF JURISTS, PROCÈS-VERBAUXOF THE PROCEEDINGS OF THE COMMITTEE: JUNE 16TH – JULY 24TH 1920 WITH ANNEXES 322, 323-24 (1920) (“Theonly question is, -- how to make unerring rules for the judge’s guidance. … I allow him to take into consideration
the legal conscience of civilised nations, which is illustrated so strikingly on certain occasions. … [L]isten to thissolemn declaration of the Powers, placed at the beginning of the Convention dealing with laws and customs of war
on land: ‘Until a more complete code of the laws of war has been issued, the high contracting Parties deem it
expedient to declare that, in cases not included in the Regulations adopted by them, populations and belligerents
remain under the protection and the rule of the principles of the law of nations, as they result from the usages
established among civilised peoples, from the laws of humanity, and the dictates of the public conscience.’ … I am
convinced that the assembly of all the States does not and cannot intend, in dealing with the state of peace, to abjure
principles which are clearly intended to be applied in war.”).

50

2.1.2 Uses of Law of War Principles. Law of war principles provide the foundation forthe specific law of war rules. Legal principles, however, are not as specific as rules, and thusinterpretations of how principles apply to a given situation may vary.
Law of war principles: (1) help practitioners interpret and apply specific treaty or
customary rules; (2) provide a general guide for conduct during war when no specific rule
applies; and (3) work as interdependent and reinforcing parts of a coherent system.
2.1.2.1 Law of War Principles as an Aid in Interpreting and Applying Law of War
Rules. Understanding law of war principles helps practitioners interpret and apply specific lawof war rules. For example, the principle of military necessity has been incorporated into specificlaw of war rules. 4 Similarly, the principle of humanity can assist in the proper interpretation andapplication of law of war rules that are based on humanitarian considerations. 5
2.1.2.2 Law of War Principles as a General Guide. When no specific rule
applies, the principles of the law of war form the general guide for conduct during war.
States have reflected this idea in certain treaty provisions, including the “Martens
Clause,” which make clear that situations not covered by the treaty remain governed byprinciples of international law. 6
The considerable progress States have made in developing specific law of war rules,
however, has lessened the need to rely solely on these principles to guide conduct during war. 7
2.1.2.3 Law of War Principles as a Coherent System. Law of war principles work
as interdependent and reinforcing parts of a coherent system.
Military necessity justifies certain actions necessary to defeat the enemy as quickly andefficiently as possible. 8 Conversely, humanity forbids actions unnecessary to achieve that
object. 9 Proportionality requires that even when actions may be justified by military necessity,
such actions not be unreasonable or excessive. 10 Distinction underpins the parties’ responsibility
to comport their behavior with military necessity, humanity, and proportionality by requiring
parties to a conflict to apply certain legal categories, principally the distinction between the4

Refer to § 2.2.2.2 (Incorporation of Military Necessity Into Law of War Rules).

5

Refer to § 2.3.2 (Humanity and Law of War Rules).

6

Refer to § 19.8.3 (Martens Clause).

7

TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 46-47 (“Where the general principles of the law of war havereceived—through the agreement of states—detailed application in the form of specific rules, the question of theproper interpretation of these general principles can only be answered by an examination of the former. Hence, tothe extent that the conduct of war is increasingly subjected to such regulation resort to the general principles of thelaw of war must become, in turn, correspondingly less frequent. The reason for this is simply that the essentialfunction of these general principles is to provide a guide for determining the legal status of weapons and methods of
warfare where no more specific rule is applicable.”).
8

Refer to § 2.2 (Military Necessity).

9

Refer to § 2.3 (Humanity).

10

Refer to § 2.4 (Proportionality).

51

armed forces and the civilian population. 11 Lastly, honor supports the entire system and gives
parties confidence in it. 12
2.2 MILITARY NECESSITY
Military necessity may be defined as the principle that justifies the use of all measuresneeded to defeat the enemy as quickly and efficiently as possible that are not prohibited by thelaw of war. Military necessity has been defined in military publications, 13 judicial decisions, 14
and scholarly works. 15
2.2.1 Military Necessity as a Justification. Military necessity justifies actions, such as
destroying and seizing persons and property. 16 Thus, military necessity underlies law of war
11

Refer to § 2.5 (Distinction).

12

Refer to § 2.6 (Honor).

13

See LIEBER CODE art. 14 (“Military necessity, as understood by modern civilized nations, consists in the necessityof those measures which are indispensable for securing the ends of the war, and which are lawful according to themodern law and usages of war.”); 1914 RULES OF LAND WARFARE ¶¶9-11 (“a belligerent is justified in applying any
amount and any kind of force which is necessary for the purpose of the war; that is, the complete submission of theenemy at the earliest possible moment with the least expenditure of men and money. … Military necessity justifies aresort to all measures which are indispensable for securing this object and which are not forbidden by the modern
laws and customs of war.”); 1940 RULES OF LAND WARFARE ¶4a (“a belligerent is justified in applying any amountand any kind of force to compel the complete submission of the enemy with the least possible expenditure of time,
life, and money.”); 1956 FM 27-10 (Change No. 1 1976) ¶3 (“that principle which justifies those measures notforbidden by international law which are indispensable for securing the complete submission of the enemy as soon
as possible.”); 1958 UK MANUAL ¶3 ( “a belligerent is justified in applying compulsion and force of any kind, to theextent necessary for the realization of the purpose of war, that is, the complete submission of the enemy at theearliest possible moment with the least possible expenditure of men, resources, and money.”); 2004 UK MANUAL¶2.2 (“Military necessity is now defined as ‘the principle whereby a belligerent has the right to apply any measures
which are required to bring about the successful conclusion of a military operation and which are not forbidden by
the laws of war.’ Put another way, a state engaged in an armed conflict may use that degree and kind of force, nototherwise prohibited by the law of armed conflict, that is required in order to achieve the legitimate purpose of theconflict, namely the complete or partial submission of the enemy at the earliest possible moment with the minimum
expenditure of life and resources.”); NATO, Glossary of Terms and Definitions, AAP-6 at 2-M-6 (2009) (defining
military necessity as “the principle whereby a belligerent has the right to apply any measures which are required tobring about the successful conclusion of a military operation and which are not forbidden by the laws of war.”).
14

See United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1253(“Military necessity permits a belligerent, subject to the laws of war, to apply any amount and kind of force tocompel the complete submission of the enemy with the least possible expenditure of time, life, and money.”).

15

See GREENSPAN, MODERN LAW OF LAND WARFARE 313-14 (military necessity is “the right to apply that amountand kind of force which is necessary to compel the submission of the enemy with the least possible expenditure oftime, life, and money); CHARLES HENRY HYDE, II INTERNATIONAL LAW: CHIEFLY AS INTERPRETED AND APPLIEDBY THE UNITED STATES 299-300 (1922) (“Military necessity, as understood by the United States, justifies a resort toall measures which are indispensable to bring about the complete submission of the enemy by means of regulated
violence and which are not forbidden by the modern laws and customs of war.”); WILLIAM EDWARD HALL, A
TREATISE ON INTERNATIONAL LAW 63 (§17) (A. Pearce Higgins, ed., 7th ed., 1917) (“When violence is permitted atall, the amount which is permissible is that which is necessary to attain the object proposed. The measure of theviolence which is permitted in war is therefore that which is required to reduce the enemy to terms.”).
16

See LIEBER CODE art. 15 (“Military necessity admits of all destruction of life or limb of armed enemies, … itallows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of
peculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of52

concepts that explain when persons and property may be the object of attack, e.g., the conceptsof “taking a direct part in hostilities” 17 and “military objective.” 18
Military necessity may justify not only violence and destruction, but also alternativemeans of subduing the enemy. 19 For example, military necessity may justify the capture ofenemy persons, 20 or non-forcible measures, such as propaganda and intelligence-gathering. 21
Military necessity also justifies certain incidental harms that inevitably result from theactions it justifies. 22 The extent to which military necessity justifies such harms is addressed by
the principle of proportionality. 23
2.2.2 Military Necessity and Law of War Rules.
2.2.2.1 Military Necessity Does Not Justify Actions Prohibited by the Law of War.
Military necessity does not justify actions that are prohibited by the law of war.
From the late 19th Century through World War II, Germany asserted that militarynecessity could override specific law of war rules (Kriegsraeson geht vor Kriegsmanier –“necessity in war overrules the manner of warfare”). 24 This view was strongly criticized. 25 Posttraffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of theappropriation of whatever an enemy’s country affords necessary for the subsistence and safety of the army, and ofsuch deception as does not involve the breaking of good faith either positively pledged, regarding agreements
entered into during the war, or supposed by the modern law of war to exist.”); United States v. List, et al. (The
Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1253-54 (“In general, [military necessity]
sanctions measures by an occupant necessary to protect the safety of his forces and to facilitate the success of his
operations. It permits the destruction of life of armed enemies and other persons whose destruction is incidentally
unavoidable by the armed conflicts of the war; it allows the capturing of armed enemies and others of peculiar
danger … . It is lawful to destroy railways, lines of communication, or any other property that might be utilized by
the enemy. Private homes and churches even may be destroyed if necessary for military operations.”).
17

Refer to § 5.8 (Civilians Taking a Direct Part in Hostilities).

18

Refer to § 5.6 (Military Objective).

19

For example, Abraham Lincoln, The Emancipation Proclamation, Jan. 1, 1863, reprinted in 12 STAT. 1268
(justifying emancipation of slaves held in rebellious states as “warranted by the Constitution, upon militarynecessity”).

20

Refer to § 8.1.3.1 (Detention Authority).

21

Refer to § 5.26 (Non-Forcible Means and Methods of Warfare).

22

See LIEBER CODE art. 15 (“Military necessity admits of all destruction of life or limb of … persons whose
destruction is incidentally unavoidable in the armed contests of the war;”); United States v. List, et al. (The HostageCase), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1253-54 (military necessity “permits the destruction of lifeof … persons whose destruction is incidentally unavoidable by the armed conflicts of the war;”).
23

Refer to § 2.4 (Proportionality).

24

See LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 231-32 (§69) (“In accordance with the German
proverb, Kriegsraeson geht vor Kriegsmanier (necessity in war overrules the manner of warfare), many German
authors before the First World War were maintaining that the laws of war lose their binding force in case of extreme
necessity.”); United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE
IMT 227 (“The truth remains that War Crimes were committed on a vast scale, never before seen in the history ofwar. … There can be no doubt that the majority of them arose from the Nazi conception of ‘total war’, with which53

World War II war crimes tribunals rejected it as well. 26
Military necessity cannot justify departures from the law of war because States havecrafted the law of war specifically with war’s exigencies in mind. 27 In devising law of war rules,
States considered military requirements. 28 Thus, prohibitions on conduct in the law of war may
be understood to reflect States’ determinations that such conduct is militarily unnecessary per se.
The fact that law of war rules are formulated specifically with military requirements inthe aggressive wars were waged. For in this conception of ‘total war’, the moral ideas underlying the conventions
which seek to make war more humane are no longer regarded as having force or validity. Everything is madesubordinate to the overmastering dictates of war. Rules, regulations, assurances, and treaties all alike are of no
moment; and so, freed from the restraining influence of international law, the aggressive war is conducted by the
Nazi leaders in the most barbaric way. Accordingly, War Crimes were committed when and wherever the Führer
and his close associates thought them to be advantageous.”).
25

See, e.g., Elihu Root, Opening Address, 15 PROCEEDINGS OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW 1,
2 (1921) (“More important still is a fact which threatens the foundation of all international law. The doctrine ofkriegsraison has not been destroyed. It was asserted by Bethman Hollweg at the beginning of the war when hesought to justify the plain and acknowledged violation of international law in the invasion of Belgium upon the
ground of military necessity. The doctrine practically is that if a belligerent deems it necessary for the success of its
military operations to violate a rule of international law, the violation is permissible. As the belligerent is to be thesole judge of the necessity, the doctrine really is that a belligerent may violate the law or repudiate it or ignore it
whenever that is deemed to be for its military advantage. The alleged necessity in the case of the German invasionof Belgium was simply that Belgium was deemed to be the most advantageous avenue through which to attack
France. Of course, if that doctrine is to be maintained, there is no more international law, for the doctrine cannot be
confined to the laws specifically relating to war on land and sea. With a nation at liberty to declare war, there are
few rules of peaceful intercourse, the violation of which may not be alleged to have some possible bearing upon amilitary advantage, and a law which may rightfully be set aside by those whom it is intended to restrain is no law atall.”).
26

See, e.g., United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 125556 (“It is apparent from the evidence of these defendants that they considered military necessity, a matter to be
determined by them, a complete justification of their acts. We do not concur in the view that the rules of warfare areanything less than they purport to be. Military necessity or expediency do not justify a violation of positive rules.”);United States v. Krupp, et al., IX TRIALS OF WAR CRIMINALS BEFORE THE NMT 1340 (rejecting defense counsel
argument that Hague IV and Hague IV Reg. rules did not apply in cases of “total war”). See also Trial of Gunther
Thiele and Georg Steinert, III U.N. LAW REPORTS 58-59 (U.S. Military Commission, Augsberg, Germany, Jun. 13,
1945) (rejecting military necessity as a defense to the murder of a prisoner of war); United States v. Milch, II TRIALSOF WAR CRIMINALS BEFORE THE NMT 849-50 (Musmanno, J., concurring) (rejecting defense counsel argument that
“total warfare” allowed suspension or abrogation of law of war rules).
27

1956 FM 27-10 (Change No. 1 1976) ¶3a (“Military necessity has been generally rejected as a defense for acts
forbidden by the customary and conventional laws of war inasmuch as the latter have been developed and framedwith consideration for the concept of military necessity.”); United States v. Krupp, et al., IX TRIALS OF WAR
CRIMINALS BEFORE THE NMT 1347 (“In short these rules and customs of warfare are designed specifically for allphases of war. They comprise the law for such emergency.”); Treaty of Amity and Commerce between His Majesty
the King of Prussia and the United States of America, art. 24, Sept. 10, 1785, 18 STAT. 641, 647 (declaring that“neither the pretence that war dissolves all treaties, nor any other whatever, shall be considered as annulling or
suspending this and next preceding article; but on the contrary, that the state of war is precisely that for which they
are provided, and during which they are to be as sacredly observed as the most acknowledged articles in the law ofnature or nations.”).
28
See, e.g., HAGUE IV preamble ¶5 (“these provisions, the wording of which has been inspired by the desire todiminish the evils of war, as far as military requirements permit, are intended to serve as a general rule of conduct
for the belligerents in their mutual relations and in their relations with the inhabitants.”) (emphasis added).

54mind has played an important part in the doctrine that the law of war is the lex specialis
governing armed conflict. 29
2.2.2.2 Incorporation of Military Necessity Into Law of War Rules. Althoughmilitary necessity cannot justify actions that have been prohibited by the law of war, some law of
war rules expressly incorporate military necessity.
For example, certain law of war rules specify that departures from what would otherwise
be the rule are permissible when absolutely or imperatively necessary. In these cases, militarynecessity must not be conflated with mere convenience. 30 Examples of rules incorporating theconcept of absolute or imperative necessity include the following:•

The activities of the representatives or delegates of the Protecting Powers shall only be
restricted as an exceptional and temporary measure when this is rendered necessary byimperative military necessities. 31•

The internment or placing in assigned residence of protected persons may be ordered
only if the security of the Detaining Power makes it absolutely necessary. 32•

If the Occupying Power considers it necessary, for imperative reasons of security, to takesafety measures concerning protected persons, it may, at the most, subject them toassigned residence or to internment. 33•

The seizure or destruction of enemy property must be imperatively demanded by thenecessities of war. 34

Certain law of war rules may direct that persons comply with an obligation, but only tothe extent feasible or consistent with military necessity. Examples of rules incorporating theconcept of feasibility or necessity include the following:•

29

Certain affirmative duties to take feasible precautions to reduce the risk of harm to theRefer to § 1.3.2.1 (The Law of War as the Lex Specialis Governing Armed Conflict).

30

See United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1252
(rejecting defendants’ “plea of military necessity, a term which they confuse with convenience and strategicalinterests.”); General Dwight D. Eisenhower, Commander-in-Chief, U.S. Army, Memorandum Regarding theProtection of Historical Monuments in Italy, Dec. 29, 1943, X WHITEMAN’S DIGEST 438 (§13) (explaining that
although “the phrase ‘military necessity’ is sometimes used where it would be more truthful to speak of militaryconvenience or even personal convenience,” military necessity should not “cloak slackness or indifference” todiscerning whether law of war obligations, such as the protection of cultural property, may be fulfilled without any
detriment to operational needs).
31

Refer to § 4.25.3 (Restrictions on Representatives of the Protecting Powers).

32

Refer to § 10.9.2.1 (Internment or Assigned Residence Only if Absolutely Necessary).

33

Refer to § 10.9.3.1 (Internment or Assigned Residence for Imperative Reasons of Security).

34

Refer to § 5.17.2 (Enemy Property – Military Necessity Standard); § 11.18.2 (Seizure or Destruction of Property
During Occupation – Application of the Military Necessity Standard).

55

civilian population and other protected persons and objects. 35•

Military medical and religious personnel, if their retention is not indispensable, are to be
returned to the party to the conflict to which they belong as soon as a road is open for
their return and military requirements permit. 36•

Whenever military considerations permit, POW camps shall be indicated in the day timeby the letters PW or PG, placed so as to be clearly visible from the air. 37•

Should military necessity require the quantity of relief shipments to civilian internees tobe limited, due notice thereof shall be given to the Protecting Power and to theInternational Committee of the Red Cross, or to any other organization giving assistanceto the internees and responsible for the forwarding of such shipments. 38

2.2.3 Applying Military Necessity. Military necessity is a difficult concept to define andapply. What is necessary in war may depend closely on the specific facts and circumstances ofa given situation, and different people often assess military necessity differently. The limited andunreliable nature of information available during war compounds this difficulty in evaluating
what is necessary. 40 This difficulty runs throughout the law of war, since military necessity isitself important and is an element of many other principles and rules.
39

The law of war seeks to ameliorate these difficulties in applying military necessity by:(1) permitting consideration of the broader imperatives of winning the war as quickly andefficiently as possible; (2) recognizing that certain types of actions are, as a general matter,inherently militarily necessary; and (3) recognizing that persons must assess the militarynecessity of an action in good faith based on the information available to them at the relevanttime and that they cannot be judged based on information that subsequently comes to light.
2.2.3.1 Consideration of the Broader Imperatives of Winning the War. In
evaluating military necessity, one may consider the broader imperatives of winning the war as
quickly and efficiently as possible and is not restricted to considering only the demands of thespecific situation.
This is the case because military necessity justifies those measures necessary to achieve
the object of war, and the object of war is not simply to prevail, but to prevail as quickly andefficiently as possible. 41 Thus, military necessity may consider the broader imperatives of35

Refer to § 5.2.3 (Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other
Protected Persons and Objects).
36

Refer to § 7.9.4 (Return of Personnel Whose Retention Is Not Indispensable).

37

Refer to § 9.11.4.3 (Marking of POW Camps).

38

Refer to § 10.23.3 (Receipt of Individual and Collective Relief Shipments for Internees).

39

See SPAIGHT, WAR RIGHTS ON LAND 113 (“There is no conception in International Law more elusive, protean,
wholly unsatisfactory, than that of war necessity.”).
40

Refer to § 1.4.2.2 (Nature of War – Limited and Unreliable Information – “Fog of War”).

41

Refer to § 1.4.1 (Object of War).

56

winning the war and not only the demands of the immediate situation. For example, in assessing
the military advantage of attacking an object, one may consider the entire war strategy rather
than only the potential tactical gains from attacking that object. 42 An interpretation of militarynecessity that only permitted consideration of the immediate situation could prolong the fighting
and increase the overall suffering caused by the war. 43
Some commentators have argued that military necessity should be interpreted so as topermit only what is actually necessary in the prevailing circumstances, such as by requiring
commanders, if possible, to seek to capture or wound enemy combatants rather than to makethem the object of attack. 44 This interpretation, however, does not reflect customaryinternational law or treaty law applicable to DoD personnel. 45 For example, the law of war does
not require that enemy combatants be warned before being made the object of attack, nor does
the law of war require that enemy combatants be given an opportunity to surrender before being
made the object of attack. 46 Moreover, the law of war may justify the use of overwhelming force
against enemy military objectives. 47
2.2.3.2 Recognizing Certain Types of Actions as Generally Inherently Militarily
42

Refer to § 5.6.7.3 (Definite Military Advantage); § 5.12.2.1 (Considering the Advantage From the Attack as a
Whole – In the Operational and Strategic Context).
43

See, e.g., Department of Defense, National Military Strategy of the United States, 10 (Jan. 1992) (“Once a
decision for military action has been made, half-measures and confused objectives extract a severe price in the formof a protracted conflict which can cause needless waste of human lives and material resources, a divided nation at
home, and defeat. Therefore, one of the essential elements of our national military strategy is the ability to rapidly
assemble the forces needed to win -- the concept of applying decisive force to overwhelm our adversaries andthereby terminate conflicts swiftly with a minimum loss of life.”); LIEBER CODE art. 29 (“The more vigorously wars
are pursued, the better it is for humanity. Sharp wars are brief.”); Count von Moltke, letter to Professor Bluntschli,
Dec. 11, 1880, reprinted in G. SHERSTON BAKER, II HALLECK’S INTERNATIONAL LAW 19 footnote 1 (1908) (“Thegreatest kindness in war is to bring it to a speedy conclusion.”).
44

See, e.g., Nils Melzer, Legal Adviser, International Committee of the Red Cross, Interpretive Guidance on the
Notion of Direct Participation in Hostilities Under International Humanitarian Law, 79 (May 2009) (“Inconjunction, the principles of military necessity and of humanity reduce the sum total of permissible military action
from that which IHL does not expressly prohibit to that which is actually necessary for the accomplishment of alegitimate military purpose in the prevailing circumstances.”) (emphasis added); JEAN PICTET, DEVELOPMENT AND
PRINCIPLES OF INTERNATIONAL HUMANITARIAN LAW 75-76 (1985) (“If we can put a soldier out of action bycapturing him, we should not wound him; if we can obtain the same result by wounding him, we must not killhim.”).
45

See, e.g., W. Hays Parks, Chief, International Law Branch, Office of the Judge Advocate General, Department of
the Army, Executive Order 12333 and Assassination, Nov. 2, 1989, III CUMULATIVE DIGEST OF UNITED STATESPRACTICE IN INTERNATIONAL LAW 1981-1988 3411, 3419 (“In the employment of military forces, the phrase‘capture or kill’ carries the same meaning or connotation in peacetime as it does in wartime. There is no obligation
to attempt capture rather than attack of an enemy. In some cases, it may be preferable to utilize ground forces inorder to capture, e.g., a known terrorist. However, where the risk to U.S. forces is deemed too great, if the President
has determined that the individual[s] in question pose such a threat to U.S. citizens or the national security interestsof the United States as to require the use of military force, it would be legally permissible to employ, e.g., an
airstrike against that individual or group rather than attempt his, her, or their capture, and would not violate theprohibition on assassination.”).
46

Refer to § 5.4.6.1 (Surprise Attacks); § 5.4.6.2 (Attacks on Retreating Forces).

47

Refer to § 5.4.6 (Force That May Be Applied Against Military Objectives).

57

Necessary. The law of war recognizes that certain types of actions are, as a general matter,inherently militarily necessary. 48 For example, attacking enemy combatants is generally
lawful. 49 Similarly, the internment of enemy POWs is generally lawful. 50 Such rules may beviewed as an example of how, when specific rules are applicable, there is less need to resort tofundamental law of war principles as a general guide for conduct during war. 51
2.2.3.3 Good Faith Evaluation of Military Necessity Based on the Available
Information. In what is sometimes called the “Rendulic Rule,” the law of war recognizes that
persons must assess the military necessity of an action based on the information available tothem at that time; they cannot be judged based on information that subsequently comes to light. 52
2.3 HUMANITY
Humanity may be defined as the principle that forbids the infliction of suffering, injury,
or destruction unnecessary to accomplish a legitimate military purpose. 53
2.3.1 Humanity as a Prohibition. Although military necessity justifies certain actions
necessary to defeat the enemy as quickly and efficiently as possible, military necessity cannot
justify actions not necessary to achieve this purpose, such as cruelty or wanton violence. 54
Moreover, once a military purpose has been achieved, inflicting more suffering is unnecessary48

See VATTEL, THE LAW OF NATIONS 295 (3.9.173) (explaining that the law of war seeks to avoid contentious
disputes between belligerents about whether actions are militarily necessary by establishing “general rules
independent of circumstances and of certain and easy application” and thus “permits or tolerates every act which inits essential nature is adapted to attaining the end of war; and it does not stop to consider whether the act was
unnecessary, useless, or superfluous in a given case unless there is the clearest evidence that an exception should bemade in that instance”).
49

Refer to § 5.5.1 (Persons, Objects, and Locations That Are Not Protected From Being Made the Object of Attack).

50

Refer to § 9.11.1 (Internment in POW Camps).

51

Refer to § 2.1.2.2 (Law of War Principles as a General Guide).

52

Refer to § 5.3 (Assessing Information Under the Law of War).

53

See, e.g., 2001 CANADIAN MANUAL ¶202(6) (humanity “forbids the infliction of suffering, injury or destruction
not actually necessary for the accomplishment of legitimate military purposes.”); 2004 UK MANUAL ¶2.4(“Humanity forbids the infliction of suffering, injury, or destruction not actually necessary for the accomplishmentof legitimate military purposes.”); GREENSPAN, MODERN LAW OF LAND WARFARE 315 (humanity “forbids theemployment of all such kinds and degrees of violence as are not necessary for the purpose of the war”); 1958 UK
MANUAL ¶3 (humanity is the principle “according to which kinds and degrees of violence which are not necessary
for the purpose of war are not permitted to a belligerent;”); LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW
227 (§67) (Humanity “postulates that all such kinds and degrees of violence as are not necessary for the
overpowering of the opponent should not be permitted to a belligerent.”); 1940 RULES OF LAND WARFARE ¶4b(defining the principle of humanity as “prohibiting employment of any such kind or degree of violence as is not
actually necessary for the purpose of the war”); 1914 RULES OF LAND WARFARE ¶9 (The principle of humanity“says that all such kinds and degrees of violence as are not necessary for the purpose of war are not permitted to abelligerent.”).
54

United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1253-54(“[Military necessity] does not permit the killing of innocent inhabitants for purposes of revenge or the satisfactionof a lust to kill. … It does not admit the wanton devastation of a district or the willful infliction of suffering upon its
inhabitants for the sake of suffering alone.”); LIEBER CODE art. 16 (“Military necessity does not admit to cruelty -that is, the infliction of suffering for the sake of suffering or for revenge, … .”).

58

and should be avoided. For example, if an enemy combatant has been placed hors de combat(e.g., incapacitated by being severely wounded or captured), no military purpose is served bycontinuing to attack him or her. 55 Thus, the principle of humanity forbids making enemy
combatants who have been placed hors de combat the object of attack. 56 Similarly, the principleof humanity has been viewed as the source of the civilian population’s immunity from being
made the object of attack because their inoffensive and harmless character means that there is no
military purpose served by attacking them. 57
2.3.1.1 Relationship Between the Principles of Humanity and Military Necessity.
Humanity is related to military necessity, and these principles logically complement one another.
Humanity may be viewed as the logical inverse of the principle of military necessity. If
certain necessary actions are justified, then certain unnecessary actions are prohibited. The
principle of humanity is an example of how the concept of necessity can function as a limitation
as well as a justification. 58
Because humanity forbids those actions that are unnecessary, the principle of humanity is
not in tension with military effectiveness, but instead reinforces military effectiveness. 59
2.3.2 Humanity and Law of War Rules. Humanity animates certain law of war rules,
including:•fundamental safeguards for persons who fall into the hands of the enemy; 60•

protections for the civilian population and civilian objects; 61•

protections for military medical personnel, units, and transports; 62

55

See 2004 UK MANUAL ¶2.4.1 (“The principle of humanity is based on the notion that once a military purpose has
been achieved, the further infliction of suffering is unnecessary. Thus, if an enemy combatant has been put out ofaction by being wounded or captured, there is no military purpose to be achieved by continuing to attack him. For
the same reason, the principle of humanity confirms the basic immunity of civilian populations and civilian objects
from attack because civilians and civilian objects make no contribution to military action.”).
56

Refer to § 5.9 (Persons Placed Hors de Combat).

57

Refer to § 4.2.1 (Development of the Distinction Between the Armed Forces and the Civilian Population).

58

Cf. Ex parte Milligan, 71 U.S. 2, 127 (1866) (“If, in foreign invasion or civil war, the courts are actually closed,
and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations,where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, topreserve the safety of the army and society, and as no power is left but the military, it is allowed to govern bymartial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration, for, if
this government is continued after the courts are reinstated, it is a gross usurpation of power.”) (emphasis added).
59

Refer to § 18.2.1 (Reinforcing Military Effectiveness).

60

Refer to § 8.2 (Humane Treatment of Detainees); § 9.5 (Humane Treatment and Basic Protections for POWs);§ 10.5 (Humane Treatment and Other Basic Protections for Protected Persons).
61

Refer to § 5.2 (Overview of Rules for the Protection of Civilians).

59

•prohibitions on weapons that are calculated to cause superfluous injury; 63 and•prohibitions on weapons that are inherently indiscriminate. 64

The principle of humanity may help interpret or apply these and other law of war rules.
For example, the requirement that POWs be interned only in premises located on land has been
understood not to prohibit POW detention aboard ships pending the establishment of suitablefacilities on land, if detention aboard ships provides the most appropriate living conditions for
POWs. 65 Similarly, the U.S. reservation to CCW Protocol III on Incendiary Weapons makes
clear that U.S. forces may use incendiary weapons against military objectives located inconcentrations of civilians where it is judged that such use would cause fewer casualties and/or
less collateral damage than alternative weapons. 66
2.4 PROPORTIONALITY
Proportionality may be defined as the principle that even where one is justified in acting,one must not act in a way that is unreasonable or excessive. 67
Proportionality has also been viewed as a legal restatement of the military concept of
economy of force. 68
2.4.1 Proportionality as a Limit on the Exercise of a Right.
2.4.1.1 Justification in Acting. Proportionality is implicated in cases in which
one is justified in acting. In jus in bello, for example, military necessity justifies making military
objectives, such as enemy combatants, the object of attack. So, an attack on enemy combatants
that incidentally damages civilian property would raise proportionality considerations. On theother hand, where there is no justification for acting, such as unlawful attacks directed against
62

Refer to § 7.8 (Respect and Protection of Categories of Medical and Religious Personnel); § 7.10 (Military
Medical Units and Facilities); § 7.11 (Ground Transport); § 7.12 (Hospital Ships, Sick-Bays in Warships, andCoastal Rescue Craft); § 7.14 (Military Medical Aircraft).
63

Refer to § 6.6 (Weapons Calculated to Cause Superfluous Injury).

64

Refer to § 6.7 (Inherently Indiscriminate Weapons).

65

Refer to § 9.11.3.1 (Location on Land).

66

Refer to § 6.14.3.2 (U.S. Reservation to CCW Protocol III on Incendiary Weapons).

67

See Daniel Webster, Letter to Mr. Fox, Apr. 24, 1841, reprinted in DANIEL WEBSTER, THE DIPLOMATIC AND
OFFICIAL PAPERS OF DANIEL WEBSTER, WHILE SECRETARY OF STATE 110 (1848) (explaining that even actions taken
in self-defense should not be “unreasonable or excessive” since such actions “justified by the necessity of selfdefense, must be limited by that necessity and kept clearly within it”). See also GROTIUS, LAW OF WAR & PEACE
601 (3.1.4.2) (“we must also beware of what happens, and what we foresee may happen, beyond our purpose, unlessthe good which our action has in view is much greater than the evil which is feared, or, greater than the fear of theevil.”); VATTEL, THE LAW OF NATIONS 279 (3.8.137) (explaining that a Sovereign has “the right to make war upon
his fellow-men as a matter of necessity, and as a remedy,” but the Sovereign should not “push the remedy beyond its
just limits,” and should “be careful not to make it more severe or more disastrous to mankind than the care of his
own safety and the defense of his rights require.”).
68

Refer to § 5.12.3.1 (The Military Concept of Economy of Force).

60

the civilian population, a proportionality analysis would not be necessary to reach the conclusionthat the attack would be unlawful.
2.4.1.2 Unreasonable or Excessive. Proportionality generally weighs thejustification for acting against the expected harms to determine whether the latter are
disproportionate in comparison to the former. In war, incidental damage to the civilian
population and civilian objects is unfortunate and tragic, but inevitable. 69 Thus, applying theprinciple of proportionality in conducting attacks does not require that no incidental damage
result from attacks. 70 Rather, this principle creates obligations to refrain from attacks in which
the expected harm incidental to such attacks would be excessive in relation to the concrete anddirect military advantage anticipated to be gained and to take feasible precautions in planningand conducting attacks to reduce the risk of harm to civilians and other persons and objects
protected from being made the object of attack. 71
Under the law of war, judgments of proportionality often involve difficult and subjective
comparisons. 72 Recognizing these difficulties, States have declined to use the term
“proportionality” in law of war treaties because it could incorrectly imply an equilibrium
between considerations or suggest that a precise comparison between them is possible. 73
2.4.2 Examples Where Proportionality Is Reflected in Law of War Rules. The principle
of proportionality is reflected in many areas in the law of war.
Proportionality is often used to refer to the jus in bello prohibition on attacks expected tocause excessive incidental harm. 74 However, the principle of proportionality described in a moregeneral sense in this section also underlies the affirmative duties to take feasible precautions forthe protection of civilians and other protected persons and objects. 75 These obligations apply
both in conducting attacks and to the party subject to attack. 76 Proportionality also plays a rolein assessing whether weapons are prohibited because they are calculated to cause unnecessary

69

Refer to § 1.4.2 (Nature of War).

70

Refer to § 5.10 (Proportionality in Conducting Attacks).

71

Refer to § 5.12 (Proportionality – Prohibition on Attacks Expected to Cause Excessive Incidental Harm); § 5.11
(Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk of Harm toProtected Persons and Objects).
72

Refer to § 5.10.2.2 (Subjective Aspects of the Decisions and Judgments Required by the Principle of
Proportionality). Compare § 2.2.3 (Applying Military Necessity).
73

See, e.g., BOTHE, PARTSCH, & SOLF, NEW RULES 309-10 (AP I art. 51, ¶2.6.2) (describing how some government
delegations in the 1974-1977 Diplomatic Conference opposed incorporation of the term “proportionality” or
acknowledgement of a law of war “rule” of proportionality in AP I and AP II).
74

Refer to § 5.12 (Proportionality – Prohibition on Attacks Expected to Cause Excessive Incidental Harm).

75

Refer to § 5.2.3 (Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other
Protected Persons and Objects).
76

Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk ofHarm to Protected Persons and Objects); § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected
Persons and Objects by the Party Subject to Attack).

61

suffering. 77
In jus ad bellum, proportionality requires that the State’s means in resorting to force be
proportionate to its just cause in using force, such as the threat that the State seeks to address. 78
Proportionality is also a requirement for reprisals, which must respond in a proportionate mannerto the preceding illegal act by the party against which they are taken. 79
2.5 DISTINCTION
Distinction, sometimes called discrimination, obliges parties to a conflict to distinguishprincipally between the armed forces and the civilian population, and between unprotected andprotected objects. 80
Distinction may be understood as encompassing two sets of reinforcing duties. Parties toa conflict must apply a framework of legal classes for persons and objects by: (1) discriminatingin conducting attacks against the enemy; and (2) distinguishing a party’s own persons andobjects.
2.5.1 Distinction as a Framework of Legal Classes. Distinction requires parties to aconflict to apply a framework of legal classes for persons and objects, each class characterized
by different rights, duties, and liabilities.
Principally, distinction seeks to separate the armed forces and the civilian population. 81
There are, however, certain special cases, such as military medical and religious personnel, who
may be treated like a combatant for one purpose (e.g., detention) but like a civilian for anotherpurpose (e.g., not being made the object of attack). 82 However, for any particular legal purpose,a person may not claim the distinct rights afforded to both combatants and civilians at the same
77

Refer to § 6.6.3.3 (Clearly Disproportionate).

78

Refer to § 1.11.1.2 (The Means Must Be Proportionate to the Just Cause (Proportionality – Jus ad Bellum)).

79

Refer to § 18.18.2.4 (Proportionality in Reprisal).

80

See, e.g., J. Fred Buzhardt, General Counsel, Department of Defense, Letter to Senator Edward Kennedy, Sept.
22, 1972, reprinted in 67 AJIL 122 (1973) (“A summary of the laws of armed conflict, in the broadest terms, reveals
certain general principles including the following: … (c). That a distinction must be made at all times between
persons taking part in the hostilities and members of the civilian population to the effect that the civilians be sparedas much as possible. These general principles were recognized in a resolution unanimously adopted by the United
Nations General Assembly in its Resolution dated 13 January 1969 (Resolution 2444 (XXIII)). We regard them as
declaratory of existing customary international law.”); Ex parte Quirin, 317 U.S. 1, 30 (1942) (“By universal
agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations ofbelligerent nations,”); 2004 UK MANUAL ¶2.5 (“Since military operations are to be conducted only against theenemy’s armed forces and military objectives, there must be a clear distinction between the armed forces andcivilians, or between combatants and non-combatants, and between objects that might legitimately be attacked andthose that are protected from attack.”). Consider AP I art. 48 (“In order to ensure respect for and protection of thecivilian population and civilian objects, the Parties 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 theiroperations only against military objectives.”).
81

Refer to § 4.2 (The Armed Forces and the Civilian Population).

82

Refer to § 4.2.3 (Mixed Cases).

62

time. 83
2.5.2 Discriminating in Conducting Attacks Against the Enemy. Distinction requires
parties to a conflict to discriminate in conducting attacks against the enemy. 84 On the one hand,consistent with military necessity, parties may make enemy combatants and other military
objectives the object of attack. 85 On the other hand, consistent with humanity, parties may not
make the civilian population and other protected persons and objects the object of attack. 86
Moreover, persons using force must discriminate between legitimate and illegitimate objects ofattack in good faith based on the information available to them at the time. 87
2.5.3 Distinguishing a Party’s Own Persons and Objects. Distinction enjoins the party
controlling the population 88 to use its best efforts to distinguish or separate its military forces andwar-making activities from members of the civilian population to the maximum extent feasible
so that civilian casualties and damage to civilian objects incidental to attacks on military
objectives will be minimized as much as possible. 89
Parties to a conflict must: (1) take certain measures to help ensure that military forces
and civilians can be visually distinguished from one another; (2) physically separate, as feasible,
their military objectives from the civilian population and other protected persons and objects;and (3) refrain from the misuse of protected persons and objects to shield military objectives.
2.5.3.1 Measures to Help Ensure That Military Forces and Civilians Are Visually
Distinguishable From One Another. Parties to a conflict must take certain measures, in offense
or defense, to help ensure that military forces and civilians can be visually distinguished fromone another.
First, parties to a conflict must not disguise their armed forces as civilians or as otherprotected categories of persons in order to kill or wound opposing forces. 90 Second, other rules
83

Refer to § 4.2.2 (No Person May Claim the Distinct Rights Afforded to Both Combatants and Civilians at theSame Time).
84

Refer to § 5.5 (Discrimination in Conducting Attacks).

85

Refer to § 5.5.1 (Persons, Objects, and Locations That Are Not Protected From Being Made the Object of Attack).

86

Refer to § 5.5.2 (Persons, Objects, and Locations That Are Protected From Being Made the Object of Attack).

87

Refer to § 5.3 (Assessing Information Under the Law of War).

88

Refer to § 5.2.1 (Responsibility of the Party Controlling Civilian Persons and Objects).

89

See J. Fred Buzhardt, General Counsel, Department of Defense, Letter to Senator Edward Kennedy, Sept. 22,
1972, reprinted in 67 AJIL 122 (1973) (“A summary of the laws of armed conflict, in the broadest terms, reveals
certain general principles including the following: … (c). That a distinction must be made at all times between
persons taking part in the hostilities and members of the civilian population to the effect that the civilians be sparedas much as possible. … The principle in (c) addresses primarily the Party exercising control over members of thecivilian population. This principle recognizes the interdependence of the civilian community with the overall war
effort of a modern society. But its application enjoins the party controlling the population to use its best efforts todistinguish or separate its military forces and war making activities from members of the civilian population to the
maximum extent feasible so that civilian casualties and damage to civilian objects incidental to attacks on military
objectives, will be minimized as much as possible.”).

90

Refer to § 5.22 (Treachery or Perfidy Used to Kill or Wound).

63

obligate parties to mark protected persons and objects to help ensure they receive the protectionsof that status. 91 Third, certain rules encourage parties to a conflict to identify certain persons andobjects as unprotected. For example, during international armed conflict, members of organizedresistance movements must, inter alia, wear fixed distinctive signs visible at a distance and carryarms openly to distinguish themselves from the civilian population in order for members of theirgroup to receive POW status. 92
2.5.3.2 Feasible Measures to Separate Physically a Party’s Own Military
Objectives From the Civilian Population and Other Protected Persons and Objects. Distinction
also creates obligations for parties to a conflict to take feasible measures to separate physicallytheir own military objectives from the civilian population and other protected persons andobjects. 93
For example, it may be appropriate to evacuate civilians from danger areas. 94 Similarly,
if feasible, military commanders should avoid placing military objectives in densely populatedareas. 95 In addition, it may be appropriate to establish zones where civilians and other protected
persons may seek refuge. 96
2.5.3.3 Refrain From the Misuse of Protected Persons and Objects to Shield
Military Objectives. Parties to a conflict must refrain from the misuse of civilians and otherprotected persons and objects to shield their own military objectives. 97 For example, it isprohibited to take hostages or otherwise to endanger deliberately protected persons or objects forthe purpose of deterring enemy military operations.
Misusing protected persons and objects to shield military objectives also offends honor
because it constitutes a breach of trust with the enemy and thus undermines respect for the law ofwar. 98
2.5.4 Misconceptions About Distinction. Distinction seeks to ensure that protected andunprotected categories are distinct from one another, not distinct in the abstract. For example,
using camouflage is consistent with distinction because foliage is not a protected category andbecause civilians generally do not wear camouflage. 99 Similarly, U.S. forces have worn nonstandard uniforms to blend with local forces while remaining distinct from the civilian
91

Refer to § 5.14.4 (Using Distinctive and Visible Signs to Identify Protected Persons and Objects as Such).

92

Refer to § 4.6.4 (Having a Fixed Distinctive Sign Recognizable at a Distance); § 4.6.5 (Carrying Arms Openly).

93

Refer to § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party
Subject to Attack).
94

Refer to § 5.14.2 (Removing Civilians and Civilian Objects From the Vicinity of Military Objectives).

95

Refer to § 5.14.1 (Refraining From Placing Military Objectives in Densely Populated Areas).

96

Refer to § 5.14.3 (Establishing Areas Where Civilians or the Wounded and Sick Are Protected).

97

Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military
Operations).
98

Refer to § 2.6.2 (Certain Amount of Fairness in Offense and Defense).

99

Refer to § 5.25.2 (Examples of Ruses), footnote 799 and accompanying text.

64

population. 100
Distinction addresses the different rights, duties, and liabilities of the categories; it does
not require that a particular person or object fall within a particular category. For example, theprinciple of distinction does not prohibit an otherwise civilian object from being used for military
purposes, thereby turning it into a military objective. 101 However, if such an object were seizedfrom the enemy, such seizure would have to have been imperatively demanded by the necessities
of war. 102 Similarly, persons with medical training or who provide medical care on thebattlefield are not necessarily military medical personnel and need not be identified as such. 103
Rather, a State may reserve the ability to use these persons as combatants by refraining fromdesignating them as exclusively engaged in medical activities.
2.5.5 Reinforcing Duties – Discriminating in Conducting Attacks and Distinguishing a
Party’s Own Persons and Objects. Discriminating in conducting attacks against the enemy anddistinguishing a party’s own persons and objects reinforce one another.
A party is not relieved of its obligations to discriminate in conducting attacks by the
failures of its adversary to distinguish its military objectives from protected persons andobjects. 104 Nonetheless, the practical ability of a party to a conflict to discriminate in conducting
attacks often depends on the degree to which its enemy has distinguished its military objectives
from its protected persons and objects. For example, if enemy forces intermingle with civilians,
then a party may be less able to avoid incidentally harming the civilian population.
In addition, the degree to which an enemy force in fact discriminates in conducting
attacks may affect whether a party distinguishes its protected persons and objects from its
military objectives. For example, if enemy forces do not respect the red cross emblem, butinstead specifically attack persons wearing it, then the party receiving these attacks is less likely
to distinguish its medical personnel and transports. 105 Similarly, if insurgents seek to attack
civilians in a non-international armed conflict, positioning military forces near the civilian
population may be essential to protecting the civilian population. 106
2.6 HONOR
Honor demands a certain amount of fairness in offense and defense and a certain mutual

100

Refer to § 5.25.2.1 (Mimicking Other Friendly Forces).

101

Refer to § 5.16.1 (Protected Persons and Objects).

102

Refer to § 5.17.2.2 (Seizure or Destruction of Enemy Property to Support Military Operations).

103

Refer to § 4.9.2 (Requirements for Military Medical and Religious Status).

104

Refer to § 5.4.4 (Failure by the Defender to Separate or Distinguish Does Not Relieve the Attacker of the Duty to
Discriminate in Conducting Attacks).
105

Refer to § 7.15.2.1 (Removal or Obscuration of the Distinctive Emblem).

106

Refer to § 17.5.2.1 (Positioning Military Forces Near the Civilian Population to Win Their Support and to ProtectThem).

65

respect between opposing military forces. 107
2.6.1 Honor – Background and Notes on Terminology. Honor has been vital to thedevelopment of the law of war, which was preceded by warriors’ codes of ethical behavior. 108
U.S. military canons of personal conduct continue to emphasize the importance of honor as acore value. Honor as a core value and other ethical norms continue to be vital as a medium forthe implementation of the law of war. 109
Honor has also been called chivalry. Chivalry is often associated with a specifichistorical context—a code of behavior for knights in Europe during the Middle Ages. Rather
than refer to this specific context, the term honor is used in this manual to indicate more clearly
that the law of war principle of honor draws from warriors’ codes from a variety of cultures andtime periods.
2.6.2 Certain Amount of Fairness in Offense and Defense. Honor requires a certain
amount of fairness in offense and defense. Honor forbids resort to means, expedients, or conduct

107

See, e.g., LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 227 (§67) (chivalry “arose in the Middle Agesand introduced a certain amount of fairness in offence and defence, and a certain mutual respect”); 1958 UK
MANUAL ¶3 (“The development of the law of war has been determined by three principles: … and thirdly, theprinciple of chivalry, which demands a certain amount of fairness in offence and defence, and a certain mutual
respect between the opposing forces.”); 1914 RULES OF LAND WARFARE ¶9 (“The development of the laws andusages of war is determined by three principles. … Third, the principle of chivalry, which demands a certain amountof fairness in offense and defense and a certain mutual respect between opposing forces.”); UNITED KINGDOM WAR
OFFICE, MANUAL OF MILITARY LAW, Chapter XIV, The Laws and Usages of War on Land, 234 (¶3) (1914) (“Thedevelopment of the laws and usages of war is determined by three principles. … And there is, thirdly, the principleof chivalry, which demands a certain amount of fairness in offence and defence, and a certain mutual respect
between the opposing forces.”).
108

See, e.g., LESLIE C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 20-23 (2000) (describing references
to warrior codes from ancient Israel, China, India, Greece, Rome, and Islam).

109

John Keegan, If you won’t, we won’t: Honour and the decencies of battle, THE TIMES LITERARY SUPPLEMENT,
Issue 4834, 11 (Nov. 24, 1995; London, England) (“In the most perceptive sentence in The Laws of War, Adam
Roberts observes, during his survey of the effect of the Hague Conventions of 1895 and 1907, that ‘the experienceof land war in two world wars must raise a question as to whether formal legal codification is necessarily superior tonotions of custom, honour, professional standards, and natural law’ in making for battlefield decencies. He might
have made his point more emphatically. There is no substitute for honour as a medium of enforcing decency on thebattlefield, never has been and never will be. There are no judges, more to the point, no policemen at the place
where death is done in combat; that may be, in fact, the intended and all too often true, meaning of ‘silent leges interarma’. All turns on the values of the junior leader present at the moment when the opponent’s capacity or will toresist fails, he ceases to be a combatant and he must hope for the mercy of the suddenly stronger.”); for example,
MORAL COURAGE IN COMBAT: THE MY LAI STORY, Lecture by Hugh Thompson, 26 (U.S. Naval Academy Center
for Professional Military Ethics 2003) (“Question Do you attribute your ability to see through the moral fog thatday, better than those who made the massacre at My Lai happen, to any prior military training or experience? Mr.
Thompson No, I don’t believe it was any military training, because I had been through the training that everybody
else had been. We had a 50-minute class of instruction on the Geneva Convention, a 50-minute class of instruction
on the Code of Conduct, and a 50-minute class of instruction on the rules of engagement. … But [my parents]
always taught me to help the underdog. Don’t be a bully and live by the golden rule. That golden rule says somuch, and it’s so simple and so basic. You know, I can’t say it was a leadership 405 or whatever. I just think it was
my parents, and they taught me right from wrong.”).

66

that would constitute a breach of trust with the enemy. 110
2.6.2.1 Acceptance That Belligerent Rights Are Not Unlimited. In requiring acertain amount of fairness in offense and defense, honor reflects the principle that parties to aconflict must accept that certain limits exist on their ability to conduct hostilities. For example,
parties to the conflict must accept that the right of belligerents to adopt means of injuring theenemy is not unlimited. 111 Here, honor does not address what those limits are so much as
requires that parties accept that there are legal limits that govern their conduct of hostilities. 112
This acceptance is a prerequisite for the existence and operation of the law of war in the way thatthe principle of pacta sunt servanda (treaties are binding on parties and must be performed bythem in good faith) provides a necessary foundation for treaties to exist and operate as
instruments that are legally binding on States. 113
Thus, honor may be understood to provide a foundation for obligations that help enforce
and implement the law of war or special agreements between belligerents during armed
conflict. 114 For example, honor may be understood to provide the foundation for the requirement
for persons to comply with the law of war in good faith. 115 Similarly, POWs are bound to adhere
to paroles on their personal honor. 116
2.6.2.2 Prohibition on Conduct That Breaches Trust With the Enemy. In
requiring a certain amount of fairness in offense and defense, honor also forbids resort to means,
expedients, or conduct that would constitute a breach of trust with the enemy. In particular,
honor requires a party to a conflict to refrain from taking advantage of its opponent’s adherence
to the law by falsely claiming the law’s protections.
Honor forbids such conduct because it may: (1) undermine the protections afforded by
the law of war; (2) impair non-hostile relations between opposing belligerents; and (3) damage
the basis for the restoration of peace short of complete annihilation of one belligerent by

110

1940 RULES OF LAND WARFARE ¶4(c) (chivalry “denounces and forbids resort to dishonorable means,
expedients, or conduct”); 2001 CANADIAN MANUAL ¶202(7) (“An armed conflict is rarely a polite contest.
Nevertheless, the concept of chivalry is reflected in specific prohibitions such as those against dishonourable ortreacherous conduct and against misuse of enemy flags or flags of truce.”).
111

See, e.g., 1899 HAGUE II REG. art. 22 (“The right of belligerents to adopt means of injuring the enemy is notunlimited.”); HAGUE IV REG. art. 22 (same); CCW preamble (noting “the principle of international law that the rightof the parties to an armed conflict to choose methods or means of warfare is not unlimited”). Consider AP I art.
35(1) (“In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is notunlimited.”).
112

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 583, 585 (¶11) (Dissenting
Opinion of Judge Higgins) (“The legal principle by which parties to an armed conflict do not have an unlimited
choice of weapons or of methods of warfare… [is intended] to ensure that weapons, both in the context of their use,
and in the methods of warfare, must comply with the other substantive rules.”).
113

Refer to § 1.10.1.1 (Legal Force of Treaties Among States).

114

Refer to § 18.1.2 (National Obligations to Implement and Enforce the Law of War).

115

Refer to § 18.3 (Duties of Individual Members of the Armed Forces).

116

Refer to § 9.11.2 (Parole of POWs).

67

another. 117
For example, enemies must deal with one another in good faith in their non-hostile
relations. 118 And even in the conduct of hostilities, good faith prohibits: (1) killing or wounding
enemy persons by resort to perfidy; (2) misusing certain signs; (3) fighting in the enemy’s
uniform; (4) feigning non-hostile relations in order to seek a military advantage; and (5)compelling nationals of a hostile party to take part in the operations of war directed against theirown country. 119 Honor, however, does not forbid parties from using ruses and other lawful
deceptions against which the enemy ought to take measures to protect itself. 120
2.6.3 Certain Mutual Respect Between Opposing Military Forces. Honor demands acertain mutual respect between opposing military forces.
Opposing military forces should respect one another outside of the fighting because theyshare a profession and they fight one another on behalf of their respective States and not out of
personal hostility. 121 For example, this principle is reflected in the rule that POWs are legally inthe hands of the enemy State and not the individuals or military units who have captured them. 122
2.6.3.1 Honor and Rules for POW Captivity. In demanding a certain mutual
respect between opposing military forces, honor animates rules that relate to the treatment of
POWs. For example, honor is one of the foundations for the humane treatment of POWs. 123
The principle of honor is also reflected in rules that require POWs and their captors to treat one
another with respect. For example, POWs must be treated with respect for their honor andperson. 124 As another example, POWs, with the exception of officers, must salute and show to
all officers of the Detaining Power the external marks of respect provided for by the regulations

117

Refer to § 5.21.1 (Harms From Breaches of Good Faith).

118

Refer to § 12.2 (Principle of Good Faith in Non-Hostile Relations).

119

Refer to § 5.21 (Overview of Good Faith, Perfidy, and Ruses).

120

Refer to § 5.25 (Ruses of War and Other Lawful Deceptions).

121

See JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT & DISCOURSES 12 (1920) (“The object of war being thedestruction of the hostile State, the other side has a right to kill its defenders, while they are bearing arms; but assoon as they lay them down and surrender, they cease to be enemies or instruments of the enemy, and become once
more merely men, whose life no one has any right to take.”).
122

Refer to § 9.2.2 (Responsibility of the Detaining Power).

123

See, e.g., Samuel Falle, Chivalry, 113 Proceedings Magazine, Jan. 1987 (“During World War II, the Japanese
were portrayed as brutal, subhuman savages—the hordes of Attila or Genghis Khan. Certainly they did terrible
things, but I was fortunate enough to see something different. It is called ‘chivalry,’ which the Oxford Dictionary
defines as a ‘medieval knightly system, with its religious, moral, and social code; ideal knight’s characteristics.’ I
see it as compassion and magnanimity toward a beaten enemy.”); United States, et al. v. Göring, et al., Judgment, I
TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT 289 (“When, on 8 September 1941, OKW issued its
ruthless regulations for Soviet POW’s, Canaris wrote to [the defendant] Keitel that under international law the SD
should have nothing to do with this matter. On this memorandum, in Keitel’s handwriting, dated 23 September andinitialed by him, is the statement: ‘The objections arise from the military concept of chivalrous warfare. This is thedestruction of an ideology. Therefore I approve and back the measures.’”).
124

Refer to § 9.5.1 (Respect for Their Persons and Honor).

68

applying in their own forces. 125 In addition, capitulations agreed upon between belligerents musttake into account the rules of military honor. 126
2.6.3.2 Honor and the Class of Military Forces. In demanding a certain mutual
respect between opposing military forces, honor also reflects the premise that military forces are
a common class of professionals who have undertaken to comport themselves honorably. 127
Honor thus animates the rules that determine who qualifies for privileges of combatantstatus. For example, an armed group must, inter alia, be organized under a responsiblecommand and conduct its operations in accordance with the law of war in order for its members
to be entitled to POW status during international armed conflict. 128 On the other hand, private
persons are generally denied the privileges of combatant status because they do not belong to thisclass of combatants. 129
The principle that combatants share a common class has also been a foundation for thetrial of enemy combatants by military tribunals. 130 For example, the GPW expresses a
preference for POWs to be tried by military courts rather than civilian courts. 131

125

Refer to § 9.22.3 (Saluting Between POWs and Officers of the Detaining Power).

126

Refer to § 12.8.3 (Rules of Military Honor).

127

SPAIGHT, AIR POWER AND WAR RIGHTS 109-10 (“Chivalry is difficult to define but it means broadly, the waging
of war in accordance with certain well-recognised formalities and courtesies. It is an influence quite distinct fromthe humanitarian one; indeed, it prevailed in its full vigour at a time in which humanitarian interests were otherwise
entirely disregarded: witness the cruelty of the Black Prince to the people of Limoges. It is against free from any
necessary connection with Christianity; Saladin was a chivalrous as Coeur-de-Lion. It is, indeed, the spirit pure andsimple, of knighthood. It expresses in effect the feeling of the combatants that they belong to a caste, that theirencounter in arms is a high ceremonial, that an opponent is entitled to all honour and respect, that your enemy,
though he is your enemy, is at the same time a brother in the same noble family of knights-at-arms. Until
gunpowder came to democratise war, chivalry and chivalry alone was an influence making for moderation in war. It
was the first motive power for the creation of a restrictive law of war.”).

128

Refer to § 4.6.1 (GPW 4A(2) Conditions in General).

129

Refer to § 4.18.3 (Private Persons Who Engage in Hostilities – Lack of the Privileges of Combatant Status).

130

General Douglas MacArthur, Action of the Confirming Authority, Feb. 7, 1946, United States v. Yamashita (U.S.
Military Commission, Manila, Dec. 7, 1945), LEVIE, DOCUMENTS ON POWS 298 (“It is not easy for me to pass penal
judgment upon a defeated adversary in a major military campaign. I have reviewed the proceedings in vain searchfor some mitigating circumstance on his behalf. I can find none. Rarely has so cruel and wanton a record been
spread to public gaze. Revolting as this may be in itself, it pales before the sinister and far reaching implication
thereby attached to the profession of arms. The soldier, be he friend or foe, is charged with the protection of the
weak and unarmed. It is the very essence and reason for his being. When he violates this sacred trust, he not only
profanes his entire cult but threatens the very fabric of international society. The traditions of fighting men are longand honorable. They are based upon the noblest of human traits, - sacrifice. This officer, of proven field merit,
entrusted with high command involving authority adequate to responsibility, has failed this irrevocable standard; hasfailed his duty to his troops, to his country, to his enemy, to mankind; has failed utterly his soldier faith. The
transgressions resulting therefrom as revealed by the trial are a blot upon the military profession, a stain upon
civilization and constitute a memory of shame and dishonor that can never be forgotten. Peculiarly callous andpurposeless was the sack of the ancient city of Manila, with its Christian population and its countless historic shrinesand monuments of culture and civilization, which with campaign conditions reversed had previously been spared.”).
131

Refer to § 9.26.3 (Trial by Military Courts).

69

III – Application of the Law of War
Chapter Contents
3.1 Introduction
3.2 Situations to Which the Law of War Applies
3.3 Status of the Parties and the Law of War
3.4 When Jus in Bello Rules Apply
3.5 Relationship Between Jus in Bello and Jus ad Bellum
3.6 Reciprocity and Law of War Rules
3.7 Applying Rules by Analogy
3.8 End of Hostilities and the Application of the Law of War
3.9 Law of War Duties Also Applicable in Peace
3.1 INTRODUCTION
Whether a particular law of war rule applies to a situation may depend on a variety ofissues, such as (1) whether a state of “war,” “hostilities,” or “armed conflict” exists; 1 (2) whether
a party is recognized as a belligerent or as a State; 2 or (3) whether an enemy State has acceptedthat law of war rule. 3 This Chapter addresses these and other broad issues underlying theapplication of law of war rules. Later chapters address issues in applying specific rules,
including considerations specific to those rules. For example, whether a specific provision of the
GPW applies to a particular person may depend on whether that person is entitled to POW statusunder the GPW. 4
Many of the legal issues underlying the application of law of war rules may be confusing
because they are complex and may appear to result in contradictory legal positions. For
example, a State may be at “war” for some purposes, but not for other purposes. 5 The legal
character of U.S. military operations may change rapidly. For example, some operations may
begin as military operations other than war and later evolve into war, or an international armed
conflict may change into a non-international armed conflict.
Although this Chapter addresses how rules apply as a matter of law, DoD practice hasoften been to act consistently with law of war rules, even in certain cases where these rules might
not technically be applicable as a matter of law.
3.1.1 DoD Practice of Applying Law of War Rules Even When Not Technically
Applicable. DoD policy and doctrine make clear the importance of compliance with,

1

Refer to § 3.4 (When Jus in Bello Rules Apply).

2

Refer to § 3.3 (Status of the Parties and the Law of War).

3

Refer to § 3.6.1 (Treaty Provisions That Provide for Reciprocity in the Scope of Application of the Treaty).

4

Refer to § 9.3 (POW Status).

5

Refer to § 1.5 (“War” as a Legal Concept).

70implementation of, and enforcement of the law of war. 6
In addition, DoD practice has often been to act consistently with law of war rules, even incertain cases where these rules might not technically be applicable as a matter of law. Thismeans, for example, that DoD practice has often been to act consistently with a particular law of
war treaty rule, even if that rule might not apply as a matter of treaty law. Moreover, DoD
practice has sometimes been to adhere to the standards in the law of war, even in situations that
do not constitute “war” or “armed conflict,” because these standards in the law of war reflect
legal standards that must be adhered to in all circumstances (i.e., whether there is a state ofarmed conflict or not).
3.1.1.1 Reasons for Acting Consistent With a Treaty Rule, Even Though theTreaty Does Not Apply. DoD practice has often been to act consistently with a treaty rule, even
if that rule might not apply as a matter of treaty law. First, it may be appropriate to act
consistently with the terms of a treaty (even as applied in dealings with a non-Party to a treaty)
because the general principles of the treaty have been determined to be declaratory of customaryinternational law. 7 In such cases, practice that is consistent with the treaty’s terms with regard toa particular matter likewise would be in compliance with applicable customary international law.
In addition, it may be important to act consistently with the terms of the treaty because
the treaty represents “modern international public opinion” as to how military operations should
be conducted. 8 Other policy considerations, including efficacious training standards or close
relations with coalition partners, may lead to a policy decision that DoD practice should beconsistent with a particular law of war treaty rule, even if that rule does not apply to U.S. forces
as a matter of law.
3.1.1.2 Applying Law of War Standards as Reflecting Minimum Legal Standards.
DoD practice also has been to adhere to certain standards in the law of war, even in situations
that do not constitute “war” or “armed conflict,” because these law of war rules reflect standards
that must be adhered to in all circumstances. Applying these standards provides assurance thatthe standards adhered to equal or exceed those required. This practice has been reflected in DoD
policies to comply with the law of war, or to comply with the spirit and principles of the law of6

Refer to § 18.1.1 (DoD Policy on Implementing and Enforcing the Law of War).

7

1956 FM 27-10 (Change No. 1 1976) Foreword (“Moreover, even though States may not be parties to, or strictly
bound by, the 1907 Hague Conventions and the 1929 Geneva Convention relative to the Treatment of Prisoners ofWar, the general principles of these conventions have been held declaratory of the customary law of war to which all
States are subject. For this reason, the United States has adopted the policy of observing and enforcing the terms ofthese conventions in so far as they have not been superseded by the 1949 Geneva Conventions which necessarily
govern the relations between the parties to the latter (see pars. 6 and 7 of the text).”).
8

1956 FM 27-10 (Change No. 1 1976) ¶7a (“These treaty provisions are in large part but formal and specificapplications of general principles of the unwritten law. While solemnly obligatory only as between the parties
thereto, they may be said also to represent modern international public opinion as to how belligerents and neutrals
should conduct themselves in the particulars indicated. For these reasons, the treaty provisions quoted herein will bestrictly observed and enforced by United States forces without regard to whether they are legally binding upon thiscountry. Military commanders will be instructed which, if any, of the written rules herein quoted are not legallybinding as between the United States and each of the States immediately concerned, and which, if any, for thatreason are not for the time being to be observed or enforced.”).

71

war, during military operations outside the context of armed conflict. 9
Certain prohibitions and certain other rules in the law of war that reflect customaryinternational law have been described as reflecting “elementary considerations of humanity.” 10
These “elementary considerations of humanity” have been understood to be “even more exacting
in peace than in war.” 11 Thus, these legal standards, at a minimum, must be adhered to in all
circumstances.
In particular, Common Article 3 of the 1949 Geneva Conventions reflects a minimum
yardstick of humane treatment protections for all persons taking no active part in hostilities,
including members of armed forces who have laid down their arms and those placed hors decombat by sickness, wounds, detention, or any other cause. 12 The standards in Common Article
3 of the 1949 Geneva Conventions may be understood to reflect minimum humane treatment
standards for detainees in any military operation, including those during international or noninternational armed conflict or occupation, and those military operations that are not addressedby the law of war. Additional rules will apply depending on the particular context. For example,
the United States has supported adherence to the guarantees in Article 75 of AP I during
international armed conflict. 13
3.2 SITUATIONS TO WHICH THE LAW OF WAR APPLIES
Although the law of war is commonly understood as applying to the conduct of hostilities
and the protection of war victims, the law of war addresses other situations as well. The law of
war establishes:9

See DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶4.1 (May 9, 2006, Certified Current as of Feb. 22,2011) (“Members of the DoD Components comply with the law of war during all armed conflicts, however suchconflicts are characterized, and in all other military operations.”); DOD DIRECTIVE 5100.77, DoD Law of War
Program, ¶5.3 (Dec. 9, 1998) (“The Heads of the DoD Components shall: 5.3.1. Ensure that the members of theirDoD Components 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.”). Refer to § 18.1.1 (DoD Policy on
Implementing and Enforcing the Law of War).

10

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 257 (¶79) (“It is
undoubtedly because a great many rules of humanitarian law applicable in armed conflict are so fundamental to therespect of the human person and ‘elementary considerations of humanity’ as the Court put it in its Judgment of 9
April 1949 in the Corfu Channel case (I.C.J. Reports 1949, p. 22), that the Hague and Geneva Conventions haveenjoyed a broad accession. Further these fundamental rules are to be observed by all States whether or not they have
ratified the conventions that contain them, because they constitute intransgressible principles of internationalcustomary law.”).
11

Corfu Channel Case (United Kingdom v. Albania), Merits, Judgment, 1949 I.C.J. 4, 22 (“The obligations
incumbent upon the Albanian authorities consisted in notifying, for the benefit of shipping in general, the existenceof a minefield in Albanian territorial waters and in warning the approaching British warships of the imminent danger
to which the minefield exposed them. Such obligations are based, not on the Hague Convention of 1907, No. VIII,
which is applicable in time of war, but on certain general and well-recognized principles, namely: elementary
considerations of humanity, even more exacting in peace than in war; the principle of the freedom of maritime
communication; and every State’s obligation not to allow knowingly its territory to be used for acts contrary to therights of other States.”).
12Refer to § 8.1.4.1 (Common Article 3 of the 1949 Geneva Conventions).

13

Refer to § 8.1.4.2 (Article 75 of AP I and Relevant AP II Provisions).

72•

rules governing the resort to force (jus ad bellum); 14•

rules between enemies for the conduct of hostilities and the protection of war victims ininternational and non-international armed conflict; 15•

rules between belligerents and neutrals; 16•

rules for military occupation; 17 and•duties during peacetime that help implement the above rules. 18

In addition, these rules in the law of war can sometimes be applied by analogy to othercontexts. 19
3.3 STATUS OF THE PARTIES AND THE LAW OF WAR
The law of war distinguishes between: (1) international armed conflicts, i.e., conflicts
between States; and (2) other armed conflicts, typically called non-international armed conflicts.
Three situations—unrecognized governments, recognition of belligerency, and national
liberation movements—merit further discussion because they may affect whether law of war
rules relating to international armed conflict apply.
3.3.1 International Armed Conflict and Non-International Armed Conflict. The law of
war treats situations of “war,” “hostilities,” or “armed conflict” differently based on the legal
status of parties to the conflict. If two or more States oppose one another, then this type ofarmed conflict is known as an “international armed conflict” because it takes place between
States. However, a state of war can exist when States are not on opposite sides of the conflict. 20
These other types of conflict are described as “not of an international character” or “noninternational armed conflict.” 21 For example, two non-State armed groups warring against one
14

Refer to § 1.11 (Jus ad Bellum).

15

Chapter V addresses the conduct of hostilities.

16

Chapter XV addresses the law of neutrality.

17

Refer to § 11.2 (When Military Occupation Law Applies).

18

Refer to § 3.9 (Law of War Duties Also Applicable in Peace).

19

Refer to § 3.7 (Applying Rules by Analogy).

20

See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 630 (2006) (noting that an armed conflict described in Common
Article 3 of the 1949 Geneva Conventions “does not involve a clash between nations.”); The Prize Cases, 67 U.S.
635, 666 (1863) (“it is not necessary to constitute war, that both parties should be acknowledged as independent
nations or sovereign States. A war may exist where one of the belligerents, claims sovereign rights as against theother.”).
21

See, e.g., Hamdan v. Rumsfeld, 415 F.3d 33, 44 (D.C. Cir. 2005) (Williams, J., concurring) (“Non-state actors
cannot sign an international treaty. Nor is such an actor even a ‘Power’ that would be eligible under Article 2 (P3)to secure protection by complying with the Convention’s requirements. Common Article 3 fills the gap, providing
some minimal protection for such non-eligibles in an ‘armed conflict not of an international character occurring in
the territory of one of the High Contracting Parties.’ The gap being filled is the non-eligible party’s failure to be a73

another or States warring against non-State armed groups may be described as “non-internationalarmed conflict,” even if international borders are crossed in the fighting. 22
The law of war rules applicable to non-international armed conflict are addressed in
Chapter XVII. 23 There are a number of important differences between the law applicable tointernational armed conflict and the law applicable to non-international armed conflict. 24
3.3.1.1 Application of Jus in Bello Rules Does Not Necessarily Affect the Legal
Status of Parties. Although the legal status of an opponent affects the character of the conflict
and what rules apply as a matter of law, the application of jus in bello rules does not necessarily
affect the legal status of parties to a conflict. For example, a belligerent may, as a policy matter,
afford a person POW protections and treatment without affording that person legal status as a
POW. 25 Similarly, the application of humanitarian rules, such as those reflected in Common
Article 3 of the 1949 Geneva Conventions, towards enemy non-State armed groups does notaffect their legal status (e.g., such application does not amount to recognizing the group as lawful
belligerents or as the legitimate government of a State). 26
3.3.1.2 Mixed Conflicts Between Opposing States and Non-State Armed Groups.
Rather than viewing a situation as either an international armed conflict or a non-internationalarmed conflict, it may be possible to characterize parts of a conflict as international in character,while other parts of that armed conflict may be regarded as non-international in character. 27 For
example, under this view, during a situation involving conflict between a variety of States andnon-State armed groups, as between the States, the rules of international armed conflict would
apply, while as between the States and non-State armed groups, the rules of non-internationalarmed conflicts would apply. 28

nation. Thus the words ‘not of an international character’ are sensibly understood to refer to a conflict between asignatory nation and a non-state actor. The most obvious form of such a conflict is a civil war. But given theConvention’s structure, the logical reading of ‘international character’ is one that matches the basic derivation of theword ‘international,’ i.e., between nations. Thus, I think the context compels the view that a conflict between asignatory and a non-state actor is a conflict ‘not of an international character.’”).
22

Refer to § 17.1.1.2 (NIAC and Internal Armed Conflict).

23

Refer to § 17.1 (Introduction).

24

Refer to § 17.1.3 (Important Differences Between the Law Applicable to International Armed Conflict and the
Law Applicable to Non-International Armed Conflict).
25

Refer to § 9.3.1 (POW Status Versus POW Protections).

26

Refer to § 17.2.3 (Application of Humanitarian Rules and the Legal Status of the Parties to the Conflict).

27

Christopher Greenwood, International Humanitarian Law and the Tadic Case, 7 EUROPEAN JOURNAL OF
INTERNATIONAL LAW 265, 271 (1996) (“[T]here is nothing intrinsically illogical or novel in characterizing some
aspects of a particular set of hostilities as an international armed conflict while others possess an internal character.
Conflicts have been treated as having such a dual aspect where a Government is simultaneously engaged in
hostilities with a rebel movement and with another State which backs that movement.”).
28

See, e.g., Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits,
Judgment, 1986 I.C.J. 14, 114 (¶219) (“The conflict between the contras’ forces and those of the Government ofNicaragua is an armed conflict which is ‘not of an international character’. The acts of the contras towards the
Nicaraguan Government are therefore governed by the law applicable to conflicts of that character; whereas the74

3.3.2 Unrecognized Governments. Even if a State does not recognize an opponent as thelegitimate government of a State, under certain circumstances, rules of international armed
conflict may apply to a conflict between a State and a government that it does not recognize. For
example, members of the regular armed forces who profess allegiance to a government orauthority not recognized by the Detaining Power nonetheless would be entitled to POW status if
they fall into the power of the enemy during international armed conflict. 29
3.3.3 State Recognition of Armed Groups as Belligerents. In certain cases, States haverecognized armed groups as belligerents for certain legal purposes.
For the purpose of applying humanitarian rules, recognition of the armed group as having
belligerent rights is neither a prerequisite for nor a result of applying humanitarian rules. 30
3.3.3.1 Recognition by Outside States of a Rebel Faction as a Belligerent in a
Civil War. In the past, in cases of a major civil war in a State, other States have recognized therebel faction as a belligerent with the effect of treating the rebels as though they were a State
with belligerent rights under the law of neutrality. 31
Historically, certain conditions had to be satisfied before outside States could recognize a
non-State armed group as a belligerent:

actions of the United States in and against Nicaragua fall under the legal rules relating to international conflicts.
Because the minimum rules applicable to international and to non-international conflicts are identical, there is noneed to address the question whether those actions must be looked at in the context of the rules which operate for theone or for the other category of conflict.”); Prosecutor v. Thomas Lubanga Dyilo, ICC Trial Chamber I, ICC-01/0401/06, Judgment 258 (¶563) (Mar. 14, 2012) (“Similarly, although there is evidence of direct intervention on thepart of Uganda, this intervention would only have internationalised the conflict between the two states concerned(viz. the DRC and Uganda). Since the conflict to which the UPC/FPLC [Lubanga’s militia] was a party was not ‘adifference arising between two states’ but rather protracted violence carried out by multiple non-state armed groups,
it remained a non-international conflict notwithstanding any concurrent international armed conflict between
Uganda and the DRC.”).
29

Refer to § 4.5.3 (Regular Armed Forces Who Profess Allegiance to a Government or an Authority Not
Recognized by the Detaining Power).
30

Refer to § 17.2.3 (Application of Humanitarian Rules and the Legal Status of the Parties to the Conflict).

31

For example, STEFAN TALMON, RECOGNITION OF GOVERNMENTS IN INTERNATIONAL LAW 309 (1998) (“Prior to
its installation in Nicaraguan territory the PJNR [Provisional Junta of National Reconstruction] was recognized as
the Government of Nicaragua by the following States: Panama (22 June 1979), Grenada (23 June 1979), Costa Rica
(18 July 1969). In a rare case of recognition of belligerency in modern history, the members of the Andean Group(Bolivia, Colombia, Ecuador, Peru, and Venezuela) declared on 17 June 1979 that they had recognized both sides in
the Nicaraguan conflict as ‘belligerents’.”); B.F. Butler, Attorney General, Piracy Upon the High Seas, May 17,
1836, 3 OPINIONS OF THE ATTORNEY GENERAL 120, 122 (1852) (“The existence of a civil war between the people ofTexas and the authorities and people of the other Mexican States, was recognised by the President of the UnitedStates at an early day in the month of November last. Official notice of this fact, and of the President’s intention topreserve the neutrality of the United States, was soon after given to the Mexican government.”); The Santissima
Trinidad, 20 U.S. 283, 337 (1822) (“The government of the United States has recognized the existence of a civil war
between Spain and her colonies, and has avowed a determination to remain neutral between the parties, and to allow
to each the same rights of asylum and hospitality and intercourse. Each party is, therefore, deemed by us abelligerent nation, having, so far as concerns us, the sovereign rights of war, and entitled to be respected in theexercise of those rights.”).

75

•a general state of armed conflict within a territory;•

the armed group occupies and administers a significant portion of national territory;•

the armed group acts under responsible chain of command and respects the laws of war;and•circumstances exist that make it necessary for outside States to define their attitude
toward the conflict. 32

This doctrine has not been invoked often, especially after the adoption of the Charter of
the United Nations, and the unwarranted recognition of an insurgent group likely would, at least,
be considered an unfriendly act against a State engaged in hostilities against that group. 33
3.3.3.2 Assertion of War Powers by a State Engaged in Hostilities Against a NonState Armed Group. Occasionally, a State that has been engaged in hostilities against a nonState armed group has taken actions that have recognized the belligerency of the non-State armed
group, at least for certain purposes. For example, President Lincoln’s proclamation of a
blockade during the U.S. Civil War was viewed as recognizing the existence of a state of war, atleast for the purposes of imposing the blockade on foreign vessels seeking to trade with theConfederacy. 34
3.3.3.3 Recognition of Friendly Armed Groups as Lawful Belligerents. In somecases, a State has recognized an armed group that fights alongside it as a belligerent. 35 One
32

HERSCH LAUTERPACHT, RECOGNITION IN INTERNATIONAL LAW 175-76 (1947) (“There is general agreement as tothe nature of the conditions which impose the duty of recognition of belligerency—or which, according to others,
justify recognition of belligerency. These conditions are as follows: first, there must exist within the State an armed
conflict of a general (as distinguished from a purely local) character; secondly, the insurgents must occupy andadminister a substantial portion of national territory; thirdly, they must conduct the hostilities in accordance with therules of war and through organized armed forces acting under a responsible authority; fourthly, there must exist
circumstances which make it necessary for outside States to define their attitude by means of recognition of
belligerency.”).
33

See, e.g., HERSCH LAUTERPACHT, RECOGNITION IN INTERNATIONAL LAW 239 (1947) (“If a distant continental
State in no way directly concerned with the hostilities at sea were to recognize the insurgents as belligerents, itwould lay itself open to the charge of a gratuitous gesture unfriendly to the lawful government and merely calculated
to encourage the rebellion.”).
34

The Prize Cases, 67 U.S. 635, 670 (1862) (“Whether the President, in fulfilling his duties as Commander-in-chiefin suppressing an insurrection, has met with such armed hostile resistance and a civil war of such alarming
proportions as will compel him to accord to them the character of belligerents is a question to be decided by him,
and this Court must be governed by the decisions and acts of the political department of the Government to which
this power was entrusted. ‘He must determine what degree of force the crisis demands.’ The proclamation ofblockade is itself official and conclusive evidence to the Court that a state of war existed which demanded andauthorized a recourse to such a measure under the circumstances peculiar to the case.”).
35

For example, Case Concerning Certain German Interests in Polish Upper Silesia (Merits) (Germany v. Poland)
P.C.I.J. (series A) No. 7, at 28 (“At the time of the conclusion of those two Conventions, Poland was not recognized
as a belligerent by Germany; it is, however, only on the basis of such recognition that an armistice could have beenconcluded between those two Powers. The Principal Allied Powers had, it is true, recognized the Polish armed
forces as an autonomous, allied and co-belligerent (or belligerent) army. This army was placed under the supreme
political authority of the Polish National Committee with headquarters in Paris.”); Statement of the Secretary of76reason for such recognition might be to seek to persuade other States that have not recognized
the armed group as a belligerent, such as an enemy State, to grant the privileges of combatantstatus to members of those armed groups. 36 An armed group that has been recognized in thisway by a friendly State may be viewed as analogous to an organized resistance movement thatbelongs to a State that is a party to a conflict. 37
3.3.4 AP I Provision on National Liberation Movements. AP I treats as internationalarmed conflicts “armed conflicts in which peoples are fighting against colonial domination andalien occupation and against racist regimes in the exercise of their right of self-determination.” 38
The United States has strongly objected to this provision as making the applicability of
the rules of international armed conflict turn on subjective and politicized criteria that would
eliminate the distinction between international and non-international conflicts. 39 The UnitedStates has understood these types of conflicts to be non-international armed conflicts. 40
Moreover, the United States has not accepted this provision in the context of the CCW. 41 The
State, September 1918, reprinted in Charles Henry Hyde, The Recognition of the Czecho-Slovaks as Belligerents, 13
AJIL 93-95 (1919) (“The Government of the United States recognizes that a state of belligerency exists between the
Czecho-Slovaks thus organized and the German and Austro-Hungarian Empires. It also recognizes the CzechoSlovak National Council as a de facto belligerent government, clothed with proper authority to direct the militaryand political affairs of the Czecho-Slovaks.”).
36

For example, Declaration Concerning Czechoslovak Army, Sept. 7, 1944, 11 DEPARTMENT OF STATE BULLETIN
263 (Sept. 10, 1944) (“The United States Government therefore declares: … (3) In these circumstances reprisals by
the German military authorities against the soldiers of the Czechoslovak Army violate the rules of war by which
Germany is bound. The United States Government, therefore, solemnly warns all Germans who take part in or are
in any way responsible for such violations that they do so at their peril and will be held answerable for theircrimes.”).
37

Compare § 4.6.2 (Belonging to a Party to the Conflict).

38

AP I art. 1(4) (“The situations referred to in the preceding paragraph [i.e., the situations referred to in Article 2
common to those Conventions] include armed 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, as enshrined in
the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States in accordance with the Charter of the United Nations.”).
39

See Ronald Reagan, Letter of Transmittal, Jan. 29, 1987, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II IIIIV (“But Protocol I is fundamentally and irreconcilably flawed. It contains provisions that would undermine
humanitarian law and endanger civilians in war. One of its provisions, for example, would automatically treat as aninternational conflict any so-called ‘war of national liberation.’ Whether such wars are international or noninternational should turn exclusively on objective reality, not on one’s view of the moral qualities of each conflict.
To rest on such subjective distinctions based on a war’s alleged purposes would politicize humanitarian law andeliminate the distinction between international and non-international conflicts. It would give special status to ‘warsof national liberation,’ an ill-defined concept expressed in vague, subjective, politicized terminology.”).
40

Detailed Analysis of Provisions, Attachment 1 to George P. Shultz, Letter of Submittal, Dec. 13, 1986, MESSAGE
FROM THE PRESIDENT TRANSMITTING AP II 1-2 (“This Article technically excludes four types of situations from thescope of the Protocol: … (2) the so-called wars of ‘national liberation’ defined as international armed conflicts by
Article 1(4) of Protocol I Additional to the 1949 Geneva Conventions; … However, the exclusion of the second andthird categories is inappropriate. The second category--so-called ‘liberation wars’ defined in Protocol I--are often infact non-international conflicts, and are distinguished by Protocol I from other non-international conflicts only on
the basis of highly politicized and undesirable criteria which detract from the integrity of international humanitarianlaw; the United States should therefore reject this distinction.”).
41

Refer to § 19.21.1.2 (U.S. Reservation to Article 7(4)(b) of the CCW).

77

United States has expressed the view that it would not be appropriate to treat this provision of
AP I as customary international law. 42
3.4 WHEN JUS IN BELLO RULES APPLY
Jus in bello treaties often provide that they apply in cases of “declared war or of any
other armed conflict,” even if the state of war is not recognized by them. 43 This standard has
also been understood to result in the application of the customary law of war. 44
A case of “declared war or any other armed conflict” for the purpose of determining
whether parties must comply with jus in bello rules may be understood as arising in two ways:(1) when a party intends to conduct hostilities; or (2) when parties are actually conducting
hostilities.
“War,” “hostilities,” and “armed conflict” may be defined differently for other legal
purposes. 45 It must be emphasized that the discussion in this section is for the purpose of
assessing whether jus in bello restrictions apply and not necessarily for other purposes. For
example, the fact that jus in bello restrictions apply is not determinative of whether a State’s
actions are lawful under jus ad bellum. 46 Similarly, the fact that jus in bello restrictions apply is
not determinative of whether the permissions that are sometimes viewed as inherent in jus in
bello rules may be relied upon by a State or non-State actor. 47
3.4.1 Intent-Based Test for Applying Jus in Bello Rules. Jus in bello rules apply when aparty intends to conduct hostilities.
If a State chooses to go to war, then it is bound by jus in bello rules for the conduct of
42

Memorandum submitted in United States v. Shakur, 690 F. Supp. 1291 (S.D.N.Y. 1988), III CUMULATIVE DIGEST
OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-88 3436, 3441 (“The new provisions on wars ofnational liberation and prisoners of war in Protocol I clearly do not reflect the practice of states. Indeed, they wereadopted precisely because states did not accord prisoner-of-war status in such conflicts. It is most unlikely thatstates will in the future choose to accord prisoner-of-war status in conflicts described as wars of national liberation.
Accordingly, it is the view of the United States that it would be inappropriate to treat these provisions as part ofcustomary international law under any circumstances.”).
43

See, e.g., GWS art. 2 (The convention applies “to all cases of declared war or of any other armed conflict which
may arise between two or more of the High Contracting Parties, even if the state of war is not recognized bythem.”); GWS-SEA art. 2 (same); GPW art. 2 (same); GC art. 2 (same); 1954 HAGUE CULTURAL PROPERTYCONVENTION art. 18 (“the present Convention shall apply in the event of declared war or of any other armed conflict
which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by
one or more of them.”); CCW art. 1 (“This Convention and its annexed Protocols shall apply in the situations
referred to in Article 2 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims,”).
44

1956 FM 27-10 (Change No. 1 1976) ¶8b (“The customary law of war applies to all cases of declared war or any
other armed conflict which may arise between the United States and other nations, even if the state of war is notrecognized by one of them. The customary law is also applicable to all cases of occupation of foreign territory by
the exercise of armed force, even if the occupation meets with no armed resistance.”).
45

Refer to § 1.5.2 (Different Definitions of “War” for Different Legal Purposes).

46

Refer to § 3.5.2 (Jus in Bello and Jus ad Bellum Generally Operate Independently of One Another).

47

Refer to § 1.3.3.2 (Law of War as Permissive Law).

78

those hostilities. 48 For example, if a State considers it necessary to respond to attacks withmilitary force, then those military operations must comply with jus in bello rules. 49
The fact that the intention to conduct hostilities gives rise to obligations to comply withthe law of war is important because law of war obligations must be taken into account even
before the fighting actually begins, such as in the planning of military operations. 50 Similarly,
certain obligations under the GPW and the GC are triggered by the onset of hostilities, and it
may be necessary to implement these obligations even before the fighting actually begins. 51 As
another example, the party that is subject to attack is often in a position to take feasible
precautions for the protection of the civilian population even before the fighting begins. 52
3.4.1.1 Declarations of War or Other Official Recognition by States of a State of
Hostilities. The application of the 1949 Geneva Conventions and other law of war treaties tocases of “declared war” is an example of how jus in bello restrictions apply when a party intends
to conduct hostilities. 53 Traditionally, a State could create a state of hostilities with another State
simply by providing objective evidence of its decision to resort to force through formal
declarations that hostilities exist between them. 54

48

L. OPPENHEIM, II INTERNATIONAL LAW 66 (2nd ed., 1912) (“But if [States] choose to go to war they have tocomply with the rules laid down by International Law regarding the conduct of war and the relations between
belligerents and neutral States.”).

49

For example, Patrick F. Philbin, Deputy Assistant Attorney General, Legality of the Use of Military Commissions
to Try Terrorists, Nov. 6, 2001, 25 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 238, 276 (“In addition, the UnitedStates has determined that it is necessary to respond to the attacks with military force. That decision is significant
because one element often cited for determining whether a situation involving a non-state actor rises to the level ofan “armed conflict” (for example, for purposes of common Article 3 of the Geneva Conventions) is whether a state
responds with its regular military forces. The United States has urged this position. See 3 U.S. Practice § 2, at
3443; see also G.I.A.D. Draper, The Red Cross Conventions 15-16 (1958) (under common Article 3, “armed
conflict” exists when the government is “obliged to have recourse to its regular military forces”). Here, thiscriterion is overwhelmingly satisfied. As outlined above, the United States has found it necessary to respond with amassive use of military force. The current operations in Afghanistan and continuing preparations for a sustained
campaign easily establish that the situation here involves an armed conflict for purposes of international law.”).
50

Refer to § 18.8 (Considering Law of War Obligations in the Planning of Military Operations).

51

Refer to § 9.4 (National-Level GPW Implementation Measures); § 10.2 (National-Level GC Implementation
Measures).
52

Refer to § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party
Subject to Attack).
53

See, e.g., GWS art. 2 (The convention applies “to all cases of declared war … between two or more of the HighContracting Parties”); GWS-SEA art. 2 (same); GPW art. 2 (same); GC art. 2 (same); 1954 HAGUE CULTURALPROPERTY CONVENTION art. 18 (“the present Convention shall apply in the event of declared war … between two or
more of the High Contracting Parties”); CCW art. 1 (“This Convention and its annexed Protocols shall apply in thesituations referred to in Article 2 common to the Geneva Conventions of 12 August 1949 for the Protection of War
Victims,”).
54

See, e.g., Convention (III) Relative to the Opening of Hostilities, art. 1, Oct. 18, 1907, 36 STAT. 2259, 2271 (“TheContracting Powers recognize that hostilities between themselves must not commence without previous and explicit
warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration ofwar.”); Eliza Ann and others, 1 DODSON 244, 247 (Mar. 9, 1813) (a declaration of war “proves the existence of79

Although States generally no longer file formal declarations of war with one another,
officials may make public statements that are like declarations of war in that they provide noticeof a state of hostilities. 55 For example, States may make statements that indicate their view thatthey are engaged in armed conflict in the context of reporting measures taken in the exercise of
their inherent right of self-defense to the U.N. Security Council. 56 Similarly, the authorization
by Congress of the use of military force has been interpreted as triggering the application ofcertain parts of the law of war. 57
These types of statements concerning jus ad bellum may be probative of the applicabilityof jus in bello restrictions. For example, a statement by a State indicating that it had suffered awrongful attack under jus ad bellum would also indicate that the State viewed jus in bello
restrictions as applicable to its adversary’s operations against it and its own military operations
against its adversary. 58
Similarly, statements by States that justify the legality of their actions or assert authority
under jus in bello rules may also provide evidence that States have the intention of conducting
hostilities and that jus in bello restrictions apply to the activities that will effectuate thoseintentions. 59

actual hostilities on one side at least, and puts the other party also into a state of war, though he may, perhaps, thinkproper to act on the defensive only.”).
55

See, e.g., Navios Corp. v. The Ulysses II, 161 F. Supp. 932, 943 (D. Md. 1958) (concluding that a speech by
President Nasser of Egypt “of November 1, confirmed by the statement of November 3, constituted a declaration of
war even under the technical requirements of international law.”), affirmed, 260 F.2d 959 (4th Cir. 1958).
56

Refer to § 1.11.5.6 (Reporting to the U.N. Security Council).

57

Talbot v. Seeman, 5 U.S. 1, 28 (1801) (Marshall, C.J.) (“It is not denied, nor in the course of the argument has it
been denied, that congress may authorize general hostilities, in which case the general laws of war apply to oursituation; or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be
noticed.”).
58

For example, John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, Remarks
at Harvard Law School: Strengthening Our Security by Adhering to Our Values and Laws, Sept. 16, 2011 (“First,
our definition of the conflict. As the President has said many times, we are at war with al-Qa’ida. In an indisputable
act of aggression, al-Qa’ida attacked our nation and killed nearly 3,000 innocent people. And as we were reminded
just last weekend, al-Qa’ida seeks to attack us again. Our ongoing armed conflict with al-Qa’ida stems from ourright—recognized under international law—to self defense. An area in which there is some disagreement is thegeographic scope of the conflict. The United States does not view our authority to use military force against alQa’ida as being restricted solely to ‘hot’ battlefields like Afghanistan. Because we are engaged in an armed conflictwith al-Qa’ida, the United States takes the legal position that —in accordance with international law—we have theauthority to take action against al-Qa’ida and its associated forces without doing a separate self-defense analysis
each time. And as President Obama has stated on numerous occasions, we reserve the right to take unilateral action
if or when other governments are unwilling or unable to take the necessary actions themselves. That does not mean
we can use military force whenever we want, wherever we want. International legal principles, including respect fora state’s sovereignty and the laws of war, impose important constraints on our ability to act unilaterally—and on theway in which we can use force—in foreign territories.”).
59

Legal and Practical Consequences of a Blockade of Cuba, Oct. 19, 1962, 1 SUPPLEMENTAL OPINIONS OF THE
OFFICE OF LEGAL COUNSEL 486, 488-89 (2013) (“The declaration of a state of war was helpful in ascertaining therights and obligations of neutrals in a given situation. Apart from this, however, it served little function. War itself,
whatever its reason, was legal self-help, and so were lesser measures if such could be said to exist. Whether or not anation declared a state of war it would be found by others to exist if that state were claiming rights, such as

80

3.4.1.2 Non-State Armed Groups With the Intention of Conducting Hostilities. A
non-State armed group, such as a rebel group, might also intend to conduct hostilities. 60 NonState armed groups are similarly bound by the restrictions in the law of war for the conduct ofhostilities when they intend to conduct hostilities. 61 However, in contrast to States, non-State
armed groups lack competent authority. 62 Thus, there would not be a basis for non-State armed
groups to claim the permissions that may be viewed as inherent in parts of the law of war. 63 For
example, members of a non-State group may be subject to prosecution under a State’s domestic
law for their participation in hostilities against it. 64
3.4.2 Act-Based Test for Applying Jus in Bello Rules. Jus in bello rules apply whenparties are actually conducting hostilities, even if the war is not declared or if the state of war is
not recognized by them. 65 The de facto existence of an armed conflict is sufficient to trigger

blockade, normally associated with war.”). For example, National Defense Authorization Act for Fiscal Year 2012
§ 1021 (“Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to
the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the
Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition
under the law of war.”); Hugh J. Clausen & W. Hays Parks, Geneva Conventions Status of Enemy Personnel
Captured During URGENT FURY, DAJA-IA 1983/7031 (Nov. 4, 1983), III CUMULATIVE DIGEST OF UNITEDSTATES PRACTICE IN INTERNATIONAL LAW 1981-1988 3452, 3454 (considering, inter alia, the fact that “[t]heDepartment of State, in a press release on 4 November 9 [1984], cited the GPW as authority for U.S. detention of
Cuban Grenadan military personnel” in concluding that “de facto hostilities existed on Grenada and that the Geneva
Conventions do apply.”) (insertion reflect in the Digest).
60

For example, Hamdan v. Rumsfeld, 548 U.S. 557, 687 (2006) (Thomas, J., dissenting) (“According to the State
Department, al Qaeda declared war on the United States as early as August 1996. In February 1998, al Qaeda
leadership issued another statement ordering the indiscriminate—and, even under the laws of war as applied tolegitimate nation-states, plainly illegal—killing of American civilians and military personnel alike. This was not
mere rhetoric; even before September 11, 2001, al Qaeda was involved in the bombing of the World Trade Center in
New York City in 1993, the bombing of the Khobar Towers in Saudi Arabia in 1996, the bombing of the U. S.
Embassies in Kenya and Tanzania in 1998, and the attack on the U. S. S. Cole in Yemen in 2000.”) (internal
citations omitted). See also United States v. Burr, 25 F. Cas. 201, 203 (C.C.D. Va. 1807) (Marshall, C.J.)(explaining in the context of a prosecution of rebels for treason that “war might be levied without a battle, or theactual application of force to the object on which it was designed to act; that a body of men assembled for the
purpose of war, and being in a posture of war, do levy war; and from that opinion I have certainly felt no disposition
to recede. But the intention is an indispensable ingredient in the composition of the fact; and if war may be levied
without striking the blow, the intention to strike must be plainly proved.”).
61

Refer to § 17.2.4 (Binding Force of the Law of War on Insurgents and Other Non-State Armed Groups).

62

Refer to § 1.11.1.1 (Competent Authority (Right Authority) to Wage War for a Public Purpose).

63

Refer to § 1.3.3.2 (Law of War as Permissive Law).

64

Refer to § 17.4.1 (Ability of a State to Use Its Domestic Law Against Non-State Armed Groups).

65

See, e.g., GWS art. 2 (The convention applies “to all cases of declared war or of any other armed conflict which
may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by them.”)(emphasis added); GWS-SEA art. 2 (same); GPW art. 2 (same); GC art. 2 (same); 1954 HAGUE CULTURALPROPERTY CONVENTION art. 18 (“the present Convention shall apply in the event of declared war or of any otherarmed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is notrecognized by one or more of them.”) (emphasis added); CCW art. 1 (“This Convention and its annexed Protocols
shall apply in the situations referred to in Article 2 common to the Geneva Conventions of 12 August 1949 for theProtection of War Victims,”).

81

obligations for the conduct of hostilities. 66
The United States has interpreted “armed conflict” in Common Article 2 of the 1949
Geneva Conventions to include “any situation in which there is hostile action between the armed
forces of two parties, regardless of the duration, intensity or scope of the fighting.” 67
3.4.2.1 Reasons for States to Seek to Deny the Existence of Hostilities. States
have specified that jus in bello rules apply even if a state of hostilities is not recognized by thembecause States have frequently denied that they are at “war.” And, in some cases, this denial has
resulted in a refusal to comply with jus in bello obligations. 68
There are a variety of reasons why States might deny that they are at “war.” Forexample, government officials may deny that an armed conflict exists: (1) to avoid an escalationin fighting and to facilitate a diplomatic resolution; (2) for reasons of domestic law; (3) to avoid
economic costs (such as discouraging commerce and foreign investment); or (4) to avoid
appearing to acknowledge the military effectiveness of an opposing force.
In particular, States have often been reluctant to acknowledge that operations by nonState armed groups have triggered the application of Common Article 3 of the 1949 Geneva

66

GPW COMMENTARY 22-23 (“There is no need for a formal declaration of war, or for the recognition of theexistence of a state of war, as preliminaries to the application of the Convention. The occurrence of de facto
hostilities is sufficient.”). For example, Hugh J. Clausen & W. Hays Parks, Geneva Conventions Status of Enemy
Personnel Captured During URGENT FURY, DAJA-IA 1983/7031 (Nov. 4, 1983), III CUMULATIVE DIGEST OF
UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-1988 3452, 3454 (concluding “that de facto hostilities
existed on Grenada and that the Geneva Conventions do apply” despite the fact that “[n]o party to the hostilities in
Grenada has suggested that a state of war exists; officials of Cuba and the United States publicly have announced
they are not at war.”); George Aldrich, Assistant Legal Adviser for Far Eastern Affairs, Department of State,
Entitlement of American Military Personnel Held by North Viet-Nam to Treatment as Prisoners of War Under the
Geneva Convention of 1949 Relative to the Treatment of Prisoners of War, Jul. 13, 1966, X WHITEMAN’S DIGEST
231-32 (§7) (“Although there have been no declarations of war, the present conflict in Vietnam is indisputably an‘armed conflict’ between parties to the Geneva Conventions of 1949. In one aspect of the war, American aircraft areoperating against military targets in North Vietnam, and North Vietnamese forces have engaged these aircraft.
Under these circumstances, the Convention applies in its entirety to this conflict. … In this case, the state of war(under international law) is not disputed; it is merely undeclared.”).
67

Department of State, Telegram 348126 to American Embassy at Damascus, Dec. 8, 1983, III CUMULATIVEDIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-1988 3456, 3457 (“The Third Geneva
Convention accords ‘prisoner-of-war’ status to members of the armed forces who are captured during ‘armed
conflict’ between two or more parties to the Convention. ‘Armed conflict’ includes any situation in which there ishostile action between the armed forces of two parties, regardless of the duration, intensity or scope of the fighting
and irrespective of whether a state of war exists between the two parties.”). Cf. Bas v. Tingy, 4 U.S. 37, 40 (1800)(Washington, J., concurring) (“every contention by force between two nations, in external matters, under theauthority of their respective governments, is not only war, but public war.”).
68

For example, United States, et al. v. Araki, et al., Majority Judgment, International Military Tribunal for the Far
East, 49,602, reprinted in NEIL BOISTER & ROBERT CRYER, DOCUMENTS ON THE TOKYO INTERNATIONAL MILITARYTRIBUNAL: CHARTER, INDICTMENT AND JUDGMENTS 535 (2008) (“Since the Government of Japan officiallyclassified the China War as an ‘Incident’ and considered Chinese soldiers in Manchuria as ‘bandits’ the Armyrefused to accord to captives taken in the fighting the status and the rights of prisoners of war. MUTO says that it
was officially decided in 1938 to continue to call the war in China an ‘Incident’ and to continue for that reason torefuse to apply the rules of war to the conflict. TOJO told us the same.”).

82

Conventions. 69 This reluctance often stems from an unwillingness to take any action that could
enhance the perceived status of rebels or give any appearance of legitimacy to their actions. 70
Nonetheless, the application of the humanitarian rules does not affect the legal status of parties toa conflict. 71
3.4.2.2 Distinguishing Armed Conflict From Internal Disturbances and Tensions.
In assessing whether de facto hostilities exist for the purpose of applying jus in bello restrictions,situations of internal disturbances and tensions, such as riots, isolated and sporadic acts ofviolence, and other acts of a similar nature do not amount to armed conflict. 72
Any hostile action between the armed forces of different States (i.e., international armed
conflict) may readily be distinguished from an “internal disturbance or tension.” However, it has
been more difficult to distinguish “armed conflict not of an international character” from“internal disturbances or tensions.”“Armed conflict not of an international character” for the purpose of applying theobligations in Common Article 3 of the 1949 Geneva Conventions was not specifically defined69

See, e.g., George H. Aldrich, Deputy Legal Adviser, Department of State, Human Rights in Armed Conflict:
Development of the Law, Apr. 13, 1973, 68 DEPARTMENT OF STATE BULLETIN, 876, 878 (Jun. 18, 1973) (“I would
note that Pakistan in Bangladesh and the United Kingdom in Northern Ireland have refused to acknowledge theapplicability of article 3 common to the four Geneva Conventions concerning noninternational armed conflicts.”).
70

See, e.g., George H. Aldrich, Deputy Legal Adviser, Department of State, Human Rights in Armed Conflict:
Development of the Law, Apr. 13, 1973, 68 DEPARTMENT OF STATE BULLETIN, 876, 879 (Jun. 18, 1973) (“In thefirst place there is a general concern of governments that the acceptance of international standards for a civil war
connotes international recognition of the insurgents. This concern results from the historical development of thelaw; in customary law the international laws of war become applicable to a civil war upon international recognitionof the rebels as belligerents. This concern persists despite an explicit provision in common article 3 that its
application shall not affect the legal status of the parties to the conflict. Personally, I deplore the fact that thisconcern so often effectively prevents official admission that an internal armed conflict is one to which article 3
applies, but we cannot ignore that political reality. Governments will predictably remain unwilling to do anythingthat could enhance the perceived status of rebels or give any appearance of legitimacy to their actions.”).
71

Refer to § 17.2.3 (Application of Humanitarian Rules and the Legal Status of the Parties to the Conflict).

72

See, e.g., CCW AMENDED art. 1 (2) (“This Convention and its annexed Protocols shall not apply to situations ofinternal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of similar
nature, as not being armed conflicts.”); CCW AMENDED MINES PROTOCOL art. 1(2) (“This Protocol shall not apply
to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other actsof a similar nature, as not being armed conflicts.”); United States, Statement on Ratification of the International
Convention for the Suppression of the Financing of Terrorism, Jun. 26, 2002, 2185 UNTS 611, 612 (“(2) Meaningof the term armed conflict. The United States of America understands that the term ‘armed conflict’ in Article 2 (1)(b) of the Convention does not include internal disturbances and tensions, such as riots, isolated and sporadic acts ofviolence, and other acts of a similar nature.”). Consider AP II art. 1(2) (“This Protocol shall not apply to situationsof internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar
nature, as not being armed conflicts.”); ROME STATUTE art. 8(2)(d) (“Paragraph 2(c) applies to armed conflicts notof an international character and thus does not apply to situations of internal disturbances and tensions, such as riots,
isolated and sporadic acts of violence or other acts of a similar nature.”); ROME STATUTE art. 8(2)(f) (“Paragraph2(e) applies to armed conflicts not of an international character and thus does not apply to situations of internal
disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.”).

83

in those conventions. 73 There has been a range of views on what constitutes an “armed conflict
not of an international character” for this purpose. 74 The intensity of the conflict and theorganization of the parties are criteria that have been assessed to distinguish between noninternational armed conflict and “internal disturbances and tensions.” 75 A variety of factors havebeen considered in assessing these criteria and in seeking to distinguish between armed conflictand internal disturbances and tensions. 76
73

GWS COMMENTARY 49 (“What is meant by ‘armed conflict not of an international character’? That was theburning question which arose again and again at the Diplomatic Conference. The expression was so general, so
vague, that many of the delegations feared that it might be taken to cover any act committed by force of arms—any
form of anarchy, rebellion, or even plain banditry. For example, if a handful of individuals were to rise in rebellion
against the State and attack a police station, would that suffice to bring into being an armed conflict within themeaning of the Article? In order to reply to questions of this sort, it was suggested that the term ‘conflict’ should be
defined or, which would come to the same thing, that a certain number of conditions for the application of theConvention should be enumerated. The idea was finally abandoned—wisely, we think.”).

See, e.g., Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-A, Decision on the Defence Motion forInterlocutory Appeal on Jurisdiction, ¶70 (Oct. 2, 1995) (“On the basis of the foregoing, we find that an armed
conflict exists whenever there is a resort to armed force between States or protracted armed violence between
governmental authorities and organized armed groups or between such groups within a State.”); Juan Carlos Abella
v. Argentina, Inter-American Commission on Human Rights, Organization of American States, Case 11.137,
OEA/Ser.L/V/II.98, ¶152 (Nov. 18, 1997) (“Common Article 3 is generally understood to apply to low intensity andopen armed confrontations between relatively organized armed forces or groups that take place within the territoryof a particular State.”).
74

See, e.g., Prosecutor v. Tadić, ICTY Trial Chamber, IT-94-1-A, Judgment, ¶562 (May 7, 1997) (“In an armed
conflict of an internal or mixed character, these closely related criteria are used solely for the purpose, as aminimum, of distinguishing an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist
activities, which are not subject to international humanitarian law.”); Prosecutor v. Akayesu, ICTR Trial Chamber,
ICTR-96-4-T, Judgment, ¶625 (Sept. 2, 1998) (“The concept of armed conflict has already been discussed in theprevious section pertaining to Common Article 3. It suffices to recall that an armed conflict is distinguished frominternal disturbances by the level of intensity of the conflict and the degree of organization of the parties to theconflict.”).
75

76

See, e.g., GPW COMMENTARY 35-36 (collecting conditions that States negotiating the 1949 Geneva Conventions
viewed as indicative factors); Prosecutor v. Boskoski, ICTY Trial Chamber II, IT-04-82-T, Judgment, ¶177 (Jul. 10,2008) (“Various indicative factors have been taken into account by Trial Chambers to assess the ‘intensity’ of theconflict. These include the seriousness of attacks and whether there has been an increase in armed clashes, thespread of clashes over territory and over a period of time, any increase in the number of government forces andmobilisation and the distribution of weapons among both parties to the conflict, as well as whether the conflict has
attracted the attention of the United Nations Security Council, and whether any resolutions on the matter have been
passed. Trial Chambers have also taken into account in this respect the number of civilians forced to flee from thecombat zones; the type of weapons used, in particular the use of heavy weapons, and other military equipment, suchas tanks and other heavy vehicles; the blocking or besieging of towns and the heavy shelling of these towns; theextent of destruction and the number of casualties caused by shelling or fighting; the quantity of troops and units
deployed; existence and change of front lines between the parties; the occupation of territory, and towns andvillages; the deployment of government forces to the crisis area; the closure of roads; cease fire orders andagreements, and the attempt of representatives from international organisations to broker and enforce cease fireagreements.”); Prosecutor v. Dordevic, ICTY Trial Chamber II, IT-04-82-T, Judgment, ¶1526 (Feb. 23, 2011)(“Trial Chambers have taken into account a number of factors when assessing the organization of an armed group.
These fall into five broad groups. First, are the factors signalling the presence of a command structure. Secondly,
are factors indicating that an armed group could carry out operations in an organised manner. Thirdly, are factors
indicating a level of logistics have been taken into account. Fourthly, are factors relevant to determining whether anarmed group possessed a level of discipline and the ability to implement the basic obligations of Common Article 3.
A fifth group includes factors indicating that the armed group was able to speak with one voice.”).

84

A helpful rule of thumb may be that where parties are, in fact, engaged in activities thatthe law of war contemplates (e.g., detention of enemy military personnel without criminal
charge, bombardment of military objectives), those activities are subject to the law of war. 77
3.4.2.3 Responding to Ordinary Crimes, Including Acts of Terrorism. States are
not required to apply law of war rules when using domestic law enforcement tools to respond to
ordinary crimes, including acts of terrorism. 78 For example, States may apply their domestic law
and prosecute acts of terrorism by non-State armed groups. 79 States, however, have at times
decided to resort to military force to counter a terrorist or similar threat that is beyond thecapabilities of ordinary law enforcement to address. 80 If States intend to conduct hostilities, thenthey are also bound by the applicable jus in bello restrictions in the law of war. 81
Acts of terrorism during armed conflict are prohibited by the law of war. 82

77

Juan Carlos Abella v. Argentina, Inter-American Commission on Human Rights, Organization of American
States, Case 11.137, OEA/Ser.L/V/II.98, ¶155 (Nov. 18, 1997) (“What differentiates the events at the La Tabladabase from these situations [of internal disturbances] are the concerted nature of the hostile acts undertaken by theattackers, the direct involvement of governmental armed forces, and the nature and level of the violence attending
the events in question. More particularly, the attackers involved carefully planned, coordinated and executed anarmed attack, i.e., a military operation, against a quintessential military objective - a military base.”); GPWCOMMENTARY 23 (“It makes no difference how long the conflict lasts, how much slaughter takes place, or how
numerous are the participating forces; it suffices for the armed forces of one Power to have captured adversaries
falling within the scope of Article 4. Even if there has been no fighting, the fact that persons covered by theConvention are detained is sufficient for its application. The number of persons captured in such circumstances is,of course, immaterial.”).
78

United Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 76 (“It is the understanding of
the United Kingdom that the term ‘armed conflict’ of itself and in its context denotes a situation of a kind which is
not constituted by the commission of ordinary crimes including acts of terrorism whether concerted or in
isolation.”).
79

Refer to § 17.4.1 (Ability of a State to Use Its Domestic Law Against Non-State Armed Groups).

80

For example, William J. Clinton, Address to the Nation on Military Action Against Terrorist Sites in Afghanistan
and Sudan, Aug. 20, 1998, 1998-II PUBLIC PAPERS OF THE PRESIDENTS 1460, 1461 (“America has battled terrorism
for many years. Where possible, we’ve used law enforcement and diplomatic tools to wage the fight. … But there
have been and will be times when law enforcement and diplomatic tools are simply not enough, when our very
national security is challenged, and when we must take extraordinary steps to protect the safety of our citizens. With
compelling evidence that the bin Ladin network of terrorist groups was planning to mount further attacks against
Americans and other freedom-loving people, I decided America must act. And so this morning, based on theunanimous recommendation of my national security team, I ordered our armed forces to take action to counter an
immediate threat from the bin Ladin network. Earlier today, the United States carried out simultaneous strikes
against terrorist facilities and infrastructure in Afghanistan.”); Public Committee against Torture in Israel, et al. v.
Government of Israel, et al., HCJ 769/02, Israel Supreme Court Sitting as the High Court of Justice, ¶21 (Dec. 11,
2005) (“Indeed, in today’s reality, a terrorist organization is likely to have considerable military capabilities. At
times they have military capabilities that exceed those of states. Confrontation with those dangers cannot be
restricted within the state and its penal law.”).
81

Refer to § 3.4.1 (Intent-Based Test for Applying Jus in Bello Rules).

82

Refer to § 10.5.3.2 (Collective Penalties and Measures of Intimidation or Terrorism); § 17.6.5 (Prohibition on
Acts of Terrorism).

85

3.5 RELATIONSHIP BETWEEN JUS IN BELLO AND JUS AD BELLUM
3.5.1 General Distinction Between Jus in Bello and Jus ad Bellum. As a general matter,jus in bello and jus ad bellum address different legal issues and should not be conflated. 83
Conflating jus in bello and jus ad bellum risks misunderstanding and misapplying theseconcepts. For example, in jus ad bellum, proportionality refers to the principle that the overall
goal of the State in resorting to war should not be outweighed by the harm that the war is
expected to produce. 84 However, the principle of proportionality in jus in bello generally refers
to the obligations to take feasible precautions in planning and conducting attacks and to refrainfrom attacks in which the expected loss of civilian life, injury to civilians, and damage to civilian
objects incidental to the attack would be excessive. 85 Therefore, although a jus ad bellum
proportionality analysis might consider the harm suffered by enemy military forces in thefighting, a jus in bello proportionality analysis would not. 86
3.5.2 Jus in Bello and Jus ad Bellum Generally Operate Independently of One Another.
One important attribute of rules for conduct during war (jus in bello) is that, in general, they
operate independently from rules regarding the resort to force (jus ad bellum).
3.5.2.1 Compliance With Jus in Bello Is Required Regardless of Compliance With
Jus ad Bellum. States fighting against one another must adhere to rules relating to the conduct ofhostilities (jus in bello), regardless of whether a State may be considered the aggressor orwhether the initial resort to force was lawful under jus ad bellum. For example, the 1949 Geneva
Conventions require States to undertake to respect and to ensure respect for the conventions in
all circumstances. 87 The phrase “in all circumstances” has been interpreted to mean that a
Party’s obligations to respect and to ensure respect for the 1949 Geneva Conventions applies
regardless of whether a Party to the Convention is the aggressor or lawfully using force in selfdefense. 88 Similarly, once an occupation exists in fact, the law of occupation applies, regardlessof whether the invasion was lawful under jus ad bellum. 89
3.5.2.2 Compliance With Jus ad Bellum Is Required Regardless of Compliance83

Refer to § 1.11 (Jus ad Bellum).

84

Refer to § 1.11.1.2 (The Means Must Be Proportionate to the Just Cause (Proportionality – Jus ad Bellum)).

85

Refer to § 5.10 (Proportionality in Conducting Attacks).

86

Refer to § 5.10.1.1 (Proportionality in Conducting Attacks and Military Objectives).

87

GWS art. 1 (“The High Contracting Parties undertake to respect and to ensure respect for the present Convention
in all circumstances.”).
88

GWS COMMENTARY 27 (“The words ‘in all circumstances’ mean in short that the application of the Convention
does not depend on the character of the conflict. Whether a war is ‘just’ or ‘unjust’, whether it is a war of
aggression or of resistance to aggression, the protection and care due to the wounded and sick are in no way
affected.”). Consider AP I preamble (“the provisions of the Geneva Conventions of 12 August 1949 and of thisProtocol must be fully applied in all circumstances to all persons who are protected by those instruments, without
any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed
to the Parties to the conflict,”).

89

Refer to § 11.2.1 (Military Occupation as a Fact).

86With Jus in Bello. Compliance with jus ad bellum is required regardless of compliance with jus
in bello. 90 For example, a State that complies with jus in bello rules may nonetheless commit
aggression under jus ad bellum. 91 In addition, violations of law of war treaties applicable to noninternational armed conflict generally have not been understood to provide a basis ininternational law for a non-belligerent State to intervene against the State in that conflict. 92
3.5.2.3 Rationales for the Independent Operation of Jus in Bello and Jus ad
Bellum. The principle that jus in bello rules operate independently of jus ad bellum rules isbased on principles of sovereignty and humanity, as well as practical considerations.
If the law of war only protected parties justly resorting to force, then both sides, believing
their opponent’s cause to be unjust, could consider themselves free to depart from jus in bello
rules. 93 As a consequence, both sides could deny protections to their opponent, and no one
would benefit from the law of war’s humanitarian protections. 94 Moreover, there might not be acompetent procedure for deciding which, if any, State has unlawfully resorted to force. 95
The principle that jus in bello rules operate independently of jus ad bellum rules is also
influenced by the fact that it would be unjust to punish individual military members based on jus
ad bellum considerations when they have no influence on whether their State has resorted to90

Consider AP I preamble (“nothing in this Protocol or in the Geneva Conventions of 12 August 1949 can beconstrued as legitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charterof the United Nations,”).

91

Refer to § 1.11.3.1 (Aggression).

92

Refer to § 17.18.1 (Duty of Non-Belligerent States to Refrain From Supporting Hostilities by Non-State Armed
Groups Against Other States).
93

VATTEL, THE LAW OF NATIONS 305 (3.12.190) (“Moreover, since each Nation claims to have justice on its side, itwill arrogate to itself all the rights of war and claim that its enemy has none, that his hostilities are but deeds ofrobbery, acts in violation of the Law of Nations, and deserving of punishment by all Nations. The decision of therights at issue will not be advanced thereby, and the context will become more cruel, more disastrous in its effects,
and more difficult of termination.”).

94

VATTEL, THE LAW OF NATIONS 305 (3.12.190) (“The first rule of that law [of nations], with respect to the subject
under consideration, is that regular war, as regards its effects, must be accounted just on both sides. This principle,
as we have just shown, is absolutely necessary if any law or order is to be introduced into a method of redress as
violent as that of war, if any bounds are to be set to the disasters it occasions, and if a door is to be left at all times
open for the return of peace. Moreover, any other rule would be impractical as between Nation and Nation, since
they recognize no common judge.”).

95

LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 218 (§61) (“Unless war is to degenerate into a savage
contest of physical forces freed from all restraints of compassion, chivalry and respect for human life and dignity, it
is essential that the accepted rules of war should continue to be observed. This is so in particular in view of the factthat in the present state of international judicial and political organisation there may be no means by which anauthoritative judgment can be arrived at on the question as to which State is the aggressor. (It will be noted, forinstance, that nothing short of an unanimous vote of the permanent members of the Security Council is sufficient forthe determination that a particular State has resorted to war in violation of its obligations under the Charter.)
Accordingly it must be held that during the war all belligerents are bound to respect and are entitled to insist as
among themselves on the observance of rules of war as generally recognised.”).

87

force lawfully under applicable international law. 96
3.5.3 Jus in Bello and Jus ad Bellum Are Sometimes Related. Although as a generalmatter parties must comport with jus in bello rules, regardless of jus ad bellum considerations,sometimes jus ad bellum issues can affect how jus in bello rules operate.
For example, the jus ad bellum principle of competent authority (also called rightauthority) acknowledges that the resort to military force is a prerogative of the State. 97
Competent authority is reflected in the distinction between international armed conflict and noninternational armed conflict; military operations against another State are fundamentally different
as a matter of law than military operations against a non-State armed group. 98 Competentauthority also is reflected in jus in bello rules relating to who is entitled to receive the privilegesof combatant status. Private persons captured after engaging in hostilities generally are notentitled to receive the privileges of POW status under the law of war because they lackcompetent authority. 99
As another example, the jus ad bellum issue of whether a disputed territory belongs to a
State affects whether the law of belligerent occupation applies to that territory because the law ofbelligerent occupation only applies to territory that belongs to an enemy State. 100
3.5.4 U.N. Security Council Decisions and Jus in Bello. The Charter of the United
Nations provides the modern treaty framework for jus ad bellum, and assigns important
responsibilities to the U.N. Security Council. 101
In theory, decisions by the Security Council, acting under Chapter VII of the Charter of
the United Nations, could create obligations that conflict with, and prevail over, obligations inlaw of war treaties or customary international law. 102 In practice, however, the U.N. Security
Council frequently has affirmed the obligations of States and parties to conflicts to comply withthe law of war, including military forces operating pursuant to U.N. Security Council
decisions. 103
96

United States v. Josef Altstoetter, et al. (Justice Case), III TRIALS OF WAR CRIMINALS BEFORE THE NMT 1027 (“Ifwe should adopt the view that by reason of the fact that the war was a criminal war of aggression every act which
would have been legal in a defensive war was illegal in this one, we would be forced to the conclusion that every
soldier who marched under orders into occupied territory or who fought in the homeland was a criminal and amurderer. The rules of land warfare upon which the prosecution has relied would not be the measure of conduct andthe pronouncement of guilt in any case would become a mere formality.”).

97

Refer to § 1.11.1.1 (Competent Authority (Right Authority) to Wage War for a Public Purpose).

98

Refer to § 3.3.1 (International Armed Conflict and Non-International Armed Conflict).

99

Refer to § 4.18.3 (Private Persons Who Engage in Hostilities – Lack of the Privileges of Combatant Status).

100

Refer to § 11.2.2.3 (“Of the Hostile Army” – Belligerent Occupation Applies to Enemy Territory).

101

Refer to § 1.11.2 (U.N. Charter Framework and the U.N. Security Council).

102

Refer to § 1.11.2.1 (U.N. Member State Obligations With Respect to U.N. Security Council Decisions).

103

For example, U.N. SECURITY COUNCIL RESOLUTION 2011(2011), U.N. Doc. S/RES/2011 (2011) (Oct. 12, 2011)(“Expressing its serious concern with the increased high number of civilian casualties in Afghanistan, in particular
women and children casualties, the increasingly large majority of which are caused by Taliban, Al-Qaida and other88The U.N. Security Council also has certain authorities to respond to situations involving
violations of the law of war, including establishing commissions of inquiry or authorizing the useof force. 104
Decisions of the Security Council, however, may alter the obligations of member Statesof the United Nations under the law of neutrality. 105 In addition, a U.N. Security Council
authorization may provide additional authority for an Occupying Power to govern occupied
territory. 106
3.6 RECIPROCITY AND LAW OF WAR RULES“Reciprocity” sometimes refers to the idea that whether a law of war rule applies to a
party to a conflict depends on whether its opponent has accepted and complies with that same
rule or a corresponding rule. The requirement to comply with many law of war rules (such as theobligation to treat detainees humanely) does not depend on whether the enemy complies withthat rule. Nonetheless, in the law of war, reciprocity may play a role in: (1) whether a rule
applies; (2) enforcing a rule; or (3) how a rule operates.
3.6.1 Treaty Provisions That Provide for Reciprocity in the Scope of Application of theTreaty. Considerations of reciprocity – i.e., the degree of confidence as to whether an adversary
will, in fact, abide by a certain rule – may be a critical factor in the willingness of States to enter
into treaty obligations.
Similarly, various treaty provisions also reflect, to varying degrees, the principle thatwhether a rule is legally binding on a party depends on whether its opponent has accepted andapplied that same rule. For example, some law of war treaties have a “general participation
clause” – i.e., a clause specifying that the treaty only applies to an armed conflict if all the parties
to the armed conflict are also Parties to the treaty. 107 A number of treaties on the law ofviolent and extremist groups, reaffirming that all parties to armed conflict must take all feasible steps to ensure theprotection of affected civilians, especially women, children and displaced persons, calling for all parties to comply
with their obligations under international humanitarian and human rights law and for all appropriate measures to betaken to ensure the protection of civilians, and recognizing the importance of the ongoing monitoring and reportingto the United Nations Security Council, including by ISAF, of the situation of civilians and in particular civilian
casualties, and noting in this regard the work of the ISAF Civilian Casualties Tracking Cell,”).
104

Refer to § 18.12 (U.N. Security Council and Enforcement of the Law of War).

105

Refer to § 15.2.3 (The Law of Neutrality Under the Charter of the United Nations).

106

Refer to § 11.1.2.5 (Occupation and U.N. Security Council Resolutions).

107

For example, HAGUE IV art. 2 (“The provisions contained in the Regulations referred to in Article 1, as well as in
the present Convention, do not apply except between Contracting Powers, and then only if all the belligerents are
parties to the Convention.”); HAGUE V art. 20 (“The provisions of the present Convention do not apply except
between Contracting Powers, and then only if all the belligerents are parties to the Convention.”); HAGUE IX art. 8(“The provisions of the present Convention do not apply except between Contracting Powers, and then only if all the
belligerents are parties to the Convention.”); HAGUE XIII art. 28 (“The provisions of the present Convention do not
apply except to the Contracting Powers, and then only if all the belligerents are parties to the Convention.”); 1929
GPW art. 82 (“The provisions of the present Convention must be respected by the High Contracting Parties under all
circumstances. In case, in time of war, one of the belligerents is not a party to the Convention, its provisions shallnevertheless remain in force as between the belligerents who are parties thereto.”); 1929 GWS art. 25 (“Theprovisions of the present Convention shall be respected by the High Contracting Parties under all circumstances. If,89

neutrality have such a clause. 108 Other treaties specify that if both Parties and non-Parties to atreaty are in an armed conflict, then Parties to the treaty remain bound by the treaty in theirmutual relations, but not in relation to States that are not Parties to the treaty. 109 Treaties havealso provided that if a State in an armed conflict is not a Party to the treaty, but it accepts andapplies the treaty’s provisions, then the Parties to the treaty are bound by the treaty in relation tothat State. 110
These provisions, however, only determine the application of the treaty as matter oftreaty law and not as customary international law. For example, although not all parties to WorldWar II were Parties to Hague IV (thus failing to satisfy the requirements of Hague IV’s generalparticipation clause), Hague IV’s humanitarian protections were deemed applicable as a matterof customary international law. 111
3.6.2 Reciprocity in the Enforcement of the Law of War. Reciprocity may be reflected in
the enforcement of the law of war. For example, the principle of reciprocity is reflected in theconcept of reprisal, which under very limited circumstances permits a belligerent to take actionthat would otherwise be unlawful in order to remedy an enemy’s breach of the law. 112 However,the prohibitions on reprisal in the law of war also may be understood to reflect important
limitations on the principle of reciprocity in enforcing the law of war. 113
Reciprocity is also reflected in the principle of tu quoque, which may limit a State’s
ability to deem unlawful and punish certain conduct by its adversary when that State has chosen
to allow its forces to engage in that same conduct. 114
Even if the application of a law of war rule does not depend on reciprocity as a matter ofin time of war, a belligerent is not a party to the Convention, its provisions shall nevertheless remain in force as
between all the belligerents who are parties to the Convention.”).
108

Refer to § 15.1.4 (Application of Treaties on Neutrality and Customary International Law).

109

See, e.g., GPW art. 2 (“Although one of the Powers in conflict may not be a party to the present Convention, thePowers who are parties thereto shall remain bound by it in their mutual relations.”); GWS-SEA art. 2 (same); GPW
art. 2 (same); GC art. 2 (same); CCW art. 7(1) (“When one of the parties to a conflict is not bound by an annexed
Protocol, the parties bound by this Convention and that annexed Protocol shall remain bound by them in theirmutual relations.”).
110

See CCW art. 7(2) (“Any High Contracting Party shall be bound by this Convention and any Protocol annexed
thereto which is in force for it, in any situation contemplated by Article 1, in relation to any State which is not a
party to this Convention or bound by the relevant annexed Protocol, if the latter accepts and applies this Convention
or the relevant Protocol, and so notifies the Depositary.”); GWS art. 2 (“Although one of the Powers in conflict may
not be a party to the present Convention, the Powers who are parties thereto … shall furthermore be bound by theConvention in relation to the said Power, if the latter accepts and applies the provisions thereof.”); GWS-SEA art. 2(same); GPW art. 2 (same); GC art. 2 (same).
111

Refer to § 19.8.2.1 (Hague IV and Customary International Law).

112

Refer to § 18.18 (Reprisals).

113

Refer to § 18.18.3 (Treaty Prohibitions on Reprisals). Consider also VCLT art. 60(5) (“Paragraphs 1 to 3 do not
apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character,in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.”).
114

Refer to § 18.21.2 (Tu Quoque).

90

law, reciprocity may be important as a practical way of encouraging compliance by the adversary
with the law of war. 115
3.6.3 Law of War Rules May Incorporate Reciprocity. Apart from affecting whether
rules apply, reciprocity may be incorporated into the operation of particular law of war rules. In
other words, a law of war rule may operate differently depending upon an opponent’s behavior.
3.6.3.1 Reciprocity – “Golden Rule”. A principle of reciprocity may beunderstood to be reflected in law of war rules that reflect the golden rule. 116 For example, thetreatment of POWs has been based on the principle that POWs should be treated as the Detaining
Power would want its forces held by the enemy to be treated. 117 Similarly, during the process of
releasing and repatriating POWs, it is proper to expect that each Party’s conduct with respect tothe repatriation of POWs will be reasonable and broadly commensurate with the conduct of theother. 118
3.6.3.2 Benefits-Burdens Principle in Law of War Rules. In some cases, the lawof war requires that those seeking to obtain certain benefits under the law of war also accept
certain burdens as a condition for receiving those benefits. 119 For example, militia and volunteer
corps that seek the privileges of combatant status during international armed conflict must meetcertain conditions (e.g., conducting their operations in accordance with the laws and customs ofwar) before receiving such privileges. 120 In addition, hospital ships and coastal rescue craft mustnot be used for military purposes in order to receive their protection from capture and from being
made the object of attack. 121 Similarly, cultural property must not be used for military purposesin order to receive special protection. 122

115

Refer to § 18.2.2 (Encouraging Reciprocal Adherence by the Adversary).

116

See J. Pictet, The Principles of International Humanitarian Law, 6 INTERNATIONAL REVIEW OF THE RED CROSS
455, 462 (Sept. 1966) (“Humanitarian law receives its impulse from moral science all of which can be summed up in
one sentence, ‘do to others what you would have done to yourself’. This crystallizes the wisdom of nations and is
the secret of happiness, or at least, of the best order of society. This fundamental precept can be found, in an almost
identical form, in all the great religions, Brahmin, Buddhist, Christian, Confucian, Islamic, Jewish and Taoist. It isalso the main prop of the positivists who do not base themselves on precepts of any given religion, but on social
facts, considered objectively, through their own reasoning alone.”).

117

Refer to § 9.2.5 (Reciprocity in the Treatment of POWs).

118

Refer to § 9.37.1 (Agreements on POW Release and Repatriation).

119

See, e.g., Al Warafi v. Obama, 716 F.3d 627, 631-32 (D.C. Cir. 2013) (“The Geneva Conventions and theircommentary provide a roadmap for the establishment of protected status. As the district court found, Al Warafi wasserving as part of the Taliban. The Taliban has not followed the roadmap set forth in the Conventions, and it has not
carried Al Warafi to the destination. … Without compliance with the requirements of the Geneva Conventions, theTaliban’s personnel are not entitled to the protection of the Convention.”); Jack L. Goldsmith III, Assistant Attorney
General, “Protected Person” Status in Occupied Iraq Under the Fourth Geneva Convention, Mar. 18, 2004, 28
OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 53-57 (explaining “the Geneva Conventions’ fundamental
principle that warring entities must accept the Conventions’ burdens in order to claim their benefits.”).
120

Refer to § 4.6 (Other Militia and Volunteer Corps).

121

Refer to § 5.18.8.2 (Conditions for the Granting of Special Protection – No Use for Military Purposes).

122

Refer to § 7.12.2.2 (No Use for Military Purposes).

91

As another example, the rights and duties of belligerents and neutrals under the law ofneutrality may be understood as correlative or reciprocal. For example, a neutral’s valid
assertion of its rights may depend on whether it has fulfilled its corresponding neutral duties. 123
3.6.3.3 Law of War Duties That Are Reinforced by Corresponding Duties for the
Enemy. Similarly, the ability of a party to comply with a particular duty may be affected bywhether its opponent has complied with a corresponding duty. For example, the ability of aparty to discriminate in conducting attacks may be affected by whether its adversary has properly
distinguished its military objectives from the civilian population and other protected persons andobjects. 124
3.7 APPLYING RULES BY ANALOGY
In some cases, a rule developed specifically for one situation may be a useful andappropriate standard to apply in a different situation. This is sometimes called an application ofa rule by analogy.
In some cases, there is a treaty requirement to apply rules by analogy; in other cases, it
may be appropriate to apply law of war rules by analogy without a treaty-based requirement todo so.
3.7.1 Treaty Requirement to Apply Rules by Analogy. The application of law of war
rules by analogy is sometimes required by a treaty provision.
For example, under the 1949 Geneva Conventions, neutral or non-belligerent States must
apply by analogy the rules relating to the treatment of the wounded and sick and of POWs wheninterning such persons under their duties of neutrality. 125 Similarly, the GC rules for penal
procedures for protected persons in occupied territory apply by analogy to proceedings againstinternees who are in the national territory of the Detaining Power. 126
3.7.2 Examples of Law of War Rules and Areas in Which Such Rules Have Been
Applied by Analogy. There are other situations in which it may be appropriate to apply law of
war rules by analogy, even though there is no treaty requirement to do so. For example, it may
be appropriate to apply the GWS and GWS-Sea rules for the respectful treatment and handling ofenemy military dead to all persons. 127 Other examples of law of war rules and situations inwhich it may be appropriate to apply those rules by analogy include: (1) applying jus in bello
rules in certain situations involving neutral or non-belligerent States; (2) applying law of war
rules with a humanitarian purpose in situations outside the context of armed conflict; (3)123Refer to § 15.3.3 (Correlative or Reciprocal Nature of Rights and Duties Under the Law of Neutrality).

124

Refer to § 2.5.5 (Reinforcing Duties – Discriminating in Conducting Attacks and Distinguishing a Party’s Own
Persons and Objects).
125

Refer to § 15.16.3.1 (Provision of POW Treatment and Application of the GWS and GWS-Sea by Analogy).

126

Refer to § 10.29 (Judicial Proceedings Regarding Protected Persons in Occupied Territory or Internees in a
Belligerent’s Home Territory).
127

Refer to § 7.7 (Treatment and Handling of Enemy Military Dead).

92

applying occupation law provisions for the protection of the civilian population in situations notconstituting belligerent occupation; and (4) applying certain international armed conflict rules insituations of non-international armed conflict.
3.7.2.1 Jus in Bello Rules and Situations Involving Neutral or Non-Belligerent
States. Although States developed jus in bello rules to address relations between enemies, some
jus in bello rules may be applied by analogy to other situations, such as relations between abelligerent and a neutral or between co-belligerents. For example, a belligerent might takefeasible precautions to protect the civilian population of a neutral or co-belligerent State from its
military operations, even though such actions might not be required by the law of war. 128 In
addition, although the GC excludes certain persons from the definition of protected person basedon their nationality, it may be appropriate to afford such persons the standards of treatment forprotected persons. 129
3.7.2.2 Law of War Rules and Military Operations Outside the Context of Armed
Conflict. Because law of war rules often reflect elementary considerations of humanity, it may
be appropriate to apply such standards to military operations occurring outside the context ofarmed conflict. 130
3.7.2.3 Occupation Law and Situations Not Constituting Belligerent Occupation.
Occupation law may also provide a useful framework for certain situations to which it may not
be strictly applicable. 131 For example, it may be appropriate for a State that liberates its ally’s
territory from enemy control to apply by analogy rules from the law of belligerent occupation to
the administration of such territory, pending an agreement with the allied government. 132
3.7.2.4 International Armed Conflict Rules and Situations of Non-International
Armed Conflict. Legal rules applicable to international armed conflict may sometimes be applied128

For example, DEPARTMENT OF THE AIR FORCE, HEADQUARTERS PACIFIC AIR FORCES, DIRECTORATE OFOPERATIONS ANALYSIS, Project CHECO [Contemporary Historical Examination of Current Operations] Report,
Rules of engagement, November 1969-September 1972 (Mar. 1, 1973), reprinted in CONGRESSIONAL RECORD
S3011, S3014 (Mar. 18, 1985) (“The Cambodian incursion plan was a closely held secret timed to coincide with the
President’s announcement. It was not until 27 April [1970] that 7AF was told to start definitive planning. Thus,
there was no time to coordinate a new set of ROE for [neutral] Cambodia. Instead 7AF instructed its pilots to follow
the normal rules for South Vietnam and to exercise extreme vigilance to avoid dropping ordnance on thenoncombatant populace.”); Franklin Roosevelt, message to Winston Churchill, reprinted in WINSTON CHURCHILL,
CLOSING THE RING 467-68 (1985) (“I share fully with you your distress at the loss of life among the French
population incident to our air preparations for ‘Overlord’. I share also with you a satisfaction that every possible
care is being and will be taken to minimise civilian casualties. No possibility of alleviating adverse French opinion
should be overlooked, always provided that there is no reduction of our effectiveness against the enemy at thiscrucial time. However regrettable the attendant loss of civilian lives is, I am not prepared to impose from thisdistance any restriction on military action by the responsible commanders that in their opinion might militate against
the success of ‘Overlord’ or cause additional loss of life to our Allied forces of invasion.”).
129

Refer to § 10.3.3 (Categories of Nationals Specifically Excluded From the Definition of Protected Person Under
the GC).
130

Refer to § 3.1.1.2 (Applying Law of War Standards as Reflecting Minimum Legal Standards).

131

Refer to § 11.1.3 (Application of Occupation Law to Situations Not Constituting Belligerent Occupation).

132

Refer to § 11.1.3.2 (Liberation of Friendly Territory).

93

by analogy to non-international armed conflict. 133
3.8 END OF HOSTILITIES AND THE APPLICATION OF THE LAW OF WAR
In general, law of war rules for the conduct of hostilities cease to apply when hostilities
have ended. However, certain duties that have arisen during hostilities may continue after
hostilities have ended, and certain new duties arise at the end of hostilities.
3.8.1 General Cessation of the Application of the Law of War at the End of Hostilities.
Hostilities end when opposing parties decide to end hostilities and actually do so, i.e., whenneither the intent-based nor act-based tests for when hostilities exist are met. 134 Of course, if thetest for the existence of hostilities continues to be met, then hostilities cannot be deemed to haveceased. 135 For example, hostilities may be terminated by:•an agreement to end hostilities, normally in the form of a treaty of peace;•

unilateral declaration of one of the parties to end the war, provided the other party does
not continue hostilities or otherwise decline to recognize the act of its enemy;•

the complete subjugation of an enemy State and its allies; or•a simple cessation of hostilities. 136

3.8.1.1 Agreements to End Hostilities. Parties to a conflict often have negotiatedpeace treaties to end hostilities. 137 Armistice agreements, i.e., temporary cease-fires, arenegotiated to suspend hostilities. 138 In addition, the U.N. Security Council may require certain
133

Refer to § 17.2.2.3 (Application of IAC Rules by Analogy).

134

Refer to § 3.4 (When Jus in Bello Rules Apply).

135

David Kris, Assistant Attorney General, Response to Questions Submitted by Members Post Hearing, Questions
Submitted by Mr. Skelton, Reforming the Military Commissions Act of 2006 and Detainee Policy: Hearing Before
the Committee on Armed Services, U.S. House of Representatives, 111th Congress, 1st Session, 77 (Jul. 24, 2009)(“At a minimum, we believe active hostilities will continue--and detention of enemy forces will be authorized--aslong as the United States is involved in active combat operations against such forces. In reaching the determinationthat active hostilities have ceased, we would likely consider factors that have been recognized in international law asrelevant to the existence of an armed conflict, including the frequency and level of intensity of any continuing
violence generated by enemy forces; the degree to which they maintain an organizational structure and operateaccording to a plan; the enemy’s capacity to procure, transport and distribute arms; and the enemy’s intent to inflictviolence.”).
136

1956 FM 27-10 (Change No. 1 1976) ¶10 (“The law of land warfare generally ceases to be applicable upon: a.
The termination of a war by agreement, normally in the form of a treaty of peace; or b. The termination of a war byunilateral declaration of one of the parties, provided the other party does not continue hostilities or otherwise decline
to recognize the act of its enemy; or c. The complete subjugation of an enemy State and its allies, if prior to a or b;
or d. The termination of a declared war or armed conflict by simple cessation of hostilities.”).
137

For example, Agreement on Ending the War and Restoring Peace in Viet Nam signed between the Governmentof the Democratic Republic of Viet Nam and the Government of the United States, and the Protocols to thisAgreement, Jan. 27, 1973, T.I.A.S. 7542, 935 UNTS 2, 6; General Agreement for Peace in Bosnia and Herzegovina,
Bosn. & Herz.-Croat.-F.R.Y, December 14, 1995, 35 I.L.M. 75 (also known as the Dayton Accords).
138

Refer to § 12.11.1.2 (Armistice as a Suspension of Hostilities and Not a Peace Treaty).

94

steps leading to the end of hostilities. 139
In drafting and interpreting agreements for the cessation of hostilities, it is important tounderstand the rules normally applicable to the cessation of hostilities. These agreements may
refer to provisions in the Geneva Conventions or other law of war instruments. These
agreements may modify or supplement the rules normally applicable to the cessation of
hostilities, e.g., by specifying precisely when a legal obligation is triggered or satisfied.
3.8.1.2 End of Hostilities Absent Written Agreement. Although States often haveconcluded agreements to end hostilities, it is possible for hostilities to cease absent a written orformal agreement. For example, an armed conflict may end when a party is fully subjugated.
It may be difficult to determine when an armed conflict has ceased, as opposed, forexample, to a lull in hostilities during which opposing forces may simply be reconstituting
themselves. 140 Hostilities generally would not be deemed to have ceased without an agreement,
unless the conditions clearly indicate that they are not be resumed or there has been a lapse oftime indicating the improbability of resumption. 141
3.8.2 Duties Continuing After Hostilities. Under the law of war, certain duties that havearisen during hostilities may continue after hostilities have ended. For example, POWs areprotected by the GPW from the moment they fall into the power of the enemy until their final
release and repatriation. 142 Similarly, protected persons whose release, repatriation, or reestablishment may take place after the general close of military operations continue to benefit
from the protection of the GC. 143 In addition, duties under occupation law may continue after
hostilities have ended. 144
3.8.3 Duties Arising at the End of Hostilities. Certain obligations are triggered by theend of hostilities. For example, the end of hostilities triggers obligations regarding the markingof minefields, demining, and clearance of unexploded ordnance. 145 In addition, POWs and139

Refer to § 12.14 (U.N. Security Council Cease-Fires).

140

Mr. Seward, Secretary of State, to Mr. Goni, Spanish Minister, Jul. 22, 1868, VII MOORE’S DIGEST 336 (“It is
certain that a condition of war can be raised without an authoritative declaration of war, and, on the other hand, thesituation of peace may be restored by the long suspension of hostilities without a treaty of peace being made.
History is full of such occurrences. What period of suspension of war is necessary to justify the presumption of therestoration of peace has never yet been settled, and must in every case be determined with reference to collateralfacts and circumstances.”).

141

Manley O. Hudson, The Duration of the War Between the United States and Germany, 39 HARVARD LAW
REVIEW 1020, 1029-30 (1926) (“If a war may be ended by a mere cessation of hostilities, the cessation of hostilities
must either be under such conditions that it is clear that they are not to be resumed or there must be a lapse of time
indicating the improbability of resumption.”).
142

Refer to § 9.3.6 (Commencement and Duration of POW Status and Treatment).

143

Refer to § 10.3.4 (Commencement and Duration of Protected Person Status).

144

Refer to § 11.3.2 (Duration of GC Obligations in the Case of Occupied Territory).

145
Refer to § 6.12.12.2 (Clearance of Minefields, Mined Areas, Mines, Booby-Traps, and Other Devices After
Hostilities); § 6.20.5 (Obligations Under the CCW Protocol V on Explosive Remnants of War That Are Triggeredby the Cessation of Active Hostilities).

95

protected persons, in general, must be released and returned to the party to the conflict to which
they belong. 146
3.9 LAW OF WAR DUTIES ALSO APPLICABLE IN PEACE
Some law of war obligations also apply in peace, i.e., even when a State is not engaged in
an armed conflict. For example, States must:•

disseminate information regarding the law of war; 147•train their armed forces in accordance with the law of war; 148•

issue instructions and regulations for their armed forces in conformity with the law ofwar; 149•

review the legality of new weapons; 150•

take appropriate measures to prepare for the safeguarding of cultural property; 151 and•take other appropriate measures to ensure the implementation and enforcement of law of
war treaties. 152

States that are at peace have obligations under the law of neutrality in relation to Statesthat are at war. 153

146

Refer to § 9.37 (Release and Repatriation After Hostilities); § 10.35 (Release, Return, Repatriation of Internees
After the Close of Hostilities); § 11.11.8 (Disposition of Accused and Convicted Protected Persons Upon the Closeof Occupation).
147

Refer to § 18.6.1 (General Dissemination and Study of Treaties).

148

Refer to § 18.6.2 (Special Instruction or Training).

149

Refer to § 18.7 (Instructions, Regulations, and Procedures to Implement and Enforce the Law of War).

150

Refer to § 6.2 (DoD Policy of Reviewing the Legality of Weapons).

151

Refer to § 5.18.2.1 (Peacetime Obligations to Prepare for the Safeguarding of Cultural Property).

152

Refer to § 18.1.2 (National Obligations to Implement and Enforce the Law of War).

153

Refer to § 15.1.1 (Matters Addressed by the Law of Neutrality).

96

IV – Classes of Persons
Chapter Contents
4.1 Introduction
4.2 The Armed Forces and the Civilian Population
4.3 Lawful Combatants and Unprivileged Belligerents
4.4 Rights, Duties, and Liabilities of Combatants
4.5 Armed Forces of a State
4.6 Other Militia and Volunteer Corps
4.7 Levée en Masse
4.8 Rights, Duties, and Liabilities of Civilians
4.9 Military Medical and Religious Personnel
4.10 Rights, Duties, and Liabilities of Military Medical and Religious Personnel
4.11 Authorized Staff of Voluntary Aid Societies
4.12 Staff of a Recognized Aid Society of a Neutral Country
4.13 Auxiliary Medical Personnel
4.14 Personnel Engaged in Duties Related to the Protection of Cultural Property
4.15 Persons Authorized to Accompany the Armed Forces
4.16 Crews of Merchant Marine Vessels or Civil Aircraft
4.17 Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind
Enemy Lines
4.18 Private Persons Who Engage in Hostilities
4.19 Rights, Duties, and Liabilities of Unprivileged Belligerents
4.20 Children
4.21 Mercenaries
4.22 AP I Provisions on Civil Defense Personnel
4.23 Law Enforcement Officers
4.24 Journalists
4.25 Delegates or Representatives of the Protecting Powers
4.26 ICRC and Other Impartial Humanitarian Organizations
4.27 Determining the Status of Detainees in Cases of Doubt
4.1 INTRODUCTION
This Chapter addresses different classes of persons under the law of war. The law of war
has created a framework of classes of persons to help confine the fighting between opposing
military forces and thereby to help protect the civilian population from the effects of war. 1
This Chapter addresses issues relating to various classes of people under the law of war
including: (1) who is included in the various classes, such as “combatant” and “civilian”; (2) therights, duties, and liabilities of the persons in each class; and (3) how certain factual categories of
persons, such as journalists, police officers, or child soldiers, fall within various classes and aretreated under the law of war.
1

Refer to § 2.5.1 (Distinction as a Framework of Legal Classes).

97

This Chapter briefly addresses specific rules that relate to the rights, duties, and liabilitiesof persons in the various classes to illustrate and provide an overview of that class. For more
information about specific rules, practitioners should refer to the cross-referenced sections that
addresses those specific rules. 2
4.1.1 General Notes on Terminology for Persons in the Law of War. The terms in thelaw of war that describe different classes of people are often used in confusing and contradictory
ways. Although striving to use terms consistently within DoD reduces confusion, understanding
the substantive standards that apply to a person in the applicable circumstances is more important
than using a particular label or a particular system of classification.
4.1.1.1 The Same Term Used With Different Meanings. Sometimes different
meanings are given to the same term. For example, someone might be considered a “combatant”
in the sense that the person may be made the object of attack, but the person would notnecessarily be a “combatant” in the sense that the person is privileged to engage in hostilities. 3
Similarly, one source might use the term “noncombatant” to mean all persons who are
not combatants, including persons placed hors de combat and civilians. 4 Alternatively, anothersource might use the term “noncombatant” to refer specifically to persons who are members of
the armed forces, but who are not combatants. 5 In the past, some commentators have used“noncombatants” of the armed forces to refer to all members of the armed forces serving incombat service support or sustainment roles. 6 In contemporary parlance, however, the term
“noncombatant” should generally be used to mean military medical and religious personnel, 7 but
also can include those combatants placed hors de combat. 8
2

Refer to § 1.2.3 (Use of Cross-References in This Manual).

3

Refer to § 4.3.2 (Combatant – Notes on Terminology).

4See, e.g., L.C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 88 (2nd ed., 2000) (“Nationals of theadverse party are normally classified as combatants and non-combatants, with the latter including some members of
the armed forces – chaplains, medical personnel and those hors de combat.”); LIEBER CODE art. 19 (“Commanders,
whenever admissible, inform the enemy of their intention to bombard a place, so that the noncombatants, andespecially the women and children, may be removed before the bombardment commences.”).

5See, e.g., HAGUE IV REG. art. 3 (“The armed forces of the belligerent parties may consist of combatants andnoncombatants. In the case of capture by the enemy, both have the right to be treated as prisoners of war.”).

6

See, e.g., GREENSPAN, MODERN LAW OF LAND WARFARE 56 (“The distinction between combatants andnoncombatants within the armed forces must be taken to correspond to the distinction between fighting troops andtroops in service units. The fighting troops of an army carry out the actual military operations, whereas the service
troops minister to the needs of the former and supply their various requirements. The Hague Regulations do not
define the elements in the two classes, but combatants would include infantry, cavalry, armored troops, and the like,whose function it is to engage with the enemy; as well as artillery, engineers, signals, and others, whose duty it is tosupport such action. Noncombatants would include personnel of the various ‘services’ comprising (inter alia)
medical, chaplains, veterinary, graves, pay, postal, labor, supply, transport, ordnance, provost, legal, and militarygovernment units.”); GWS COMMENTARY 223 footnote 4 (“In correct terminology, however, ‘armed forces’ include‘combatants’ (i.e. soldiers bearing arms) and ‘non-combatants’ (who comprise not only medical personnel but also
various other army services not called upon to carry arms).”).
7

Refer to § 4.9 (Military Medical and Religious Personnel).

8

Refer to § 5.9 (Persons Placed Hors de Combat).

98

4.1.1.2 Different Terms Used to Describe the Same Concept. Different legal
sources may use different terms to refer to the same class of people under the law of war. For
example, one source might use “belligerent,” whereas another source might use “combatant” torefer to the same class of people under the law of war. 9
4.1.2 Classes and Categories Are Only the Starting Point for Legal Analysis. When
analyzing a person’s rights, duties, and liabilities under the law of war, it is important to analyze
the specific question in light of the applicable facts. Determining what class a person falls into,such as “combatant,” “civilian,” or “unprivileged belligerent,” may be only the first step in alegal analysis. For example, whether a person may be the object of attack, may be detained, isentitled to POW status, or may be punished for their actions are all different questions. Althoughthese questions are often related to one another and associated with the general classes of“combatant” and “civilian,” each question requires its own specific analysis. This specificanalysis should be done in each case, applying the legal rules to the facts, rather than deriving ananswer based on a conclusory labeling of a person as, for example, an “enemy combatant.” 10
Indeed, some persons might, for some purposes, be treated like “combatants,” but for otherpurposes be treated like “civilians.” 11
4.2 THE ARMED FORCES AND THE CIVILIAN POPULATION
The law of war has recognized that the population of an enemy State is generally divided
into two classes: the armed forces and the civilian population, also sometimes called,respectively, “combatants” and “civilians.” This division results from the principle ofdistinction. 12
4.2.1 Development of the Distinction Between the Armed Forces and the Civilian
Population. A citizen or national of a State that is a party to a conflict, as one of the constituentsof a State that is engaged in hostilities, may be subjected to the hardships of war by an enemy
State. 13 However, because the ordinary members of the civilian population make no resistance,
it has long been recognized that there is no right to make them the object of attack. 14 Thus,
9

Refer to § 4.3.2 (Combatant – Notes on Terminology).

10

Refer to § 4.18.1 (Private Persons Who Engage in Hostilities – Notes on Terminology).

11

Refer to § 4.2.3 (Mixed Cases).

12

Refer to § 2.5 (Distinction).

13

See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 772-73 (1950) (“The alien enemy is bound by an allegiance which
commits him to lose no opportunity to forward the cause of our enemy; hence the United States, assuming him to befaithful to his allegiance, regards him as part of the enemy resources. It therefore takes measures to disable himfrom commission of hostile acts imputed as his intention because they are a duty to his sovereign.”); LIEBER CODE
art. 21 (“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.”).
14

See LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 204 (§57) (“Those private subjects of the belligerents
who do not directly or indirectly belong to the armed forces do not take part in it; they do not attack and defend; andno attack ought therefore to be made upon them.”); G. SHERSTON BAKER, II HALLECK’S INTERNATIONAL LAW 15-16(20.3) (1908) (“Feeble old men, women, and children, and sick persons, come under the general description ofenemies, and we have certain rights over them as members of the community with which we are at war; but, as they
are enemies who make no resistance, we have no right to maltreat their persons, or to use any violence toward them,much less to take their lives.”); LIEBER CODE arts. 22, 23, 25 (explaining that protection of the “unarmed citizen,”99

States have departed from ancient and medieval practices of war between entire peoples, andinstead, as much as possible, have treated war as a contention between the professional militaryforces of warring States. 15 This separation of the armed forces and the civilian population has
greatly mitigated the evils of war. 16
4.2.2 No Person May Claim the Distinct Rights Afforded to Both Combatants andCivilians at the Same Time. The classes of combatants and civilians have distinct rights, duties,
and liabilities; no person may claim the distinct rights afforded both classes at the same time. 17
For example, a person may not claim the combatant’s right to attack enemy forces while also
claiming the civilian’s right not to be made the object of attack. 18
4.2.3 Mixed Cases. Certain classes of persons do not fit neatly within the dichotomy of
the armed forces and the civilian population, i.e., combatants and civilians. Each of these
the “inoffensive individual,” or the “inoffensive citizen of the hostile country” is the rule) (emphasis added);
VATTEL, THE LAW OF NATIONS 282 (3.8.145) (“Women, children, feeble old men, and the sick … these are enemies
who make no resistance, and consequently the belligerent has no right to maltreat or otherwise offer violence tothem, much less to put them to death.”).
15See, e.g., LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 204 (§57) (“During antiquity, and the greater partof the Middle Ages, war was a contention between the whole populations of the belligerent States. In time of war
every subject of one belligerent, whether an armed and fighting individual or not, whether man or woman, adult or
infant, could be killed or enslaved by the other belligerent at will. But gradually a milder and more discriminating
practice grew up, and nowadays the life and liberty of such private subjects of belligerents as do not directly or
indirectly belong to their armed forces, and, with certain exceptions, their private property, are protected byInternational Law.”); LIEBER CODE art. 22 (“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 toa hostile country and the hostile country itself, with its men in arms. The principle has been more and moreacknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of
war will admit.”).
16

See SPAIGHT, WAR RIGHTS ON LAND 37 (“The separation of armies and peaceful inhabitants into two distinct
classes is perhaps the greatest triumph of International Law. Its effect in mitigating the evils of war has been
incalculable.”); G. SHERSTON BAKER, II HALLECK’S INTERNATIONAL LAW 20-22 (20.3) (1908) (“But afterwards in
Italy, and more particularly during the lawless confusion of the feudal ages, hostilities were carried on by all classesof persons, and everyone capable of being a soldier was regarded as such, and all the rights of war attached to his
person. But as wars are now carried on by regular troops, or, at least, by forces regularly organised, the peasants,
merchants, manufacturers, agriculturists, and, generally, all public and private persons, who are engaged in theordinary pursuits of life, and take no part in military operations, have nothing to fear from the sword of the enemy.
So long as they refrain from all hostilities, pay the military contributions which may be imposed on them and quietly
submit to the authority of the belligerent who may happen to be in the military possession of their country, they areallowed to continue in the enjoyment of their property, and in the pursuit of their ordinary avocations. This system
has greatly mitigated the evils of war, … .”).
17

See, e.g., 1956 FM 27-10 (Change No. 1 1976) ¶60 (dividing into “prisoners of war” and “the civilian
population,” and noting that “[p]ersons in each of the foregoing categories have distinct rights, duties, anddisabilities.”); 1940 RULES OF LAND WARFARE ¶8 (“The enemy population is divided in war into two generalclasses, known as, the armed forces and the peaceful population. Both classes have distinct rights, duties, anddisabilities, and no person can belong to both classes at one and the same time.”); 1934 RULES OF LAND WARFARE¶8 (same); 1914 RULES OF LAND WARFARE ¶29 (same).
18

See 1958 UK MANUAL ¶86 (“It is one of the purposes of the law of war to ensure that an individual who belongs
to one class or the other shall not be permitted to enjoy the privileges of both. Thus he must not be allowed to kill orwound members of the army of the opposing belligerent and subsequently, if captured, to claim that he is a peaceful
citizen.”).

100

particular classes has some attributes of combatant status and some attributes of civilian status; incertain respects persons in these classes are treated like combatants, but in other respects they aretreated like civilians. These classes may be classified into three groups: (1) certain personnel
engaged in humanitarian duties; (2) certain authorized supporters of the armed forces; and (3)unprivileged belligerents.
4.2.3.1 Certain Personnel Engaged Humanitarian Duties. Certain categories of
personnel have humanitarian duties that involve them in hostilities but also entitle them tospecial protections:•military medical and religious personnel; 19•

authorized staff of voluntary aid societies; 20•

staff of a recognized aid society of a neutral country; 21•

auxiliary medical personnel; 22 and•personnel engaged in the protection of cultural property. 23

4.2.3.2 Certain Authorized Supporters of the Armed Forces. Certain categories of
persons are not members of the armed forces, but are nonetheless authorized to support thearmed forces in the fighting:•persons authorized to accompany the armed forces, but who are not members thereof; 24
and•members of the crews of merchant marine vessels or civil aircraft of a belligerent. 25

4.2.3.3 Unprivileged Belligerents. Unprivileged belligerents generally are subject
to the liabilities of both combatant and civilian status, and include: 26•

persons engaging in spying, sabotage, and similar acts behind enemy lines; 27 and•private persons engaging in hostilities. 28

19

Refer to § 4.9 (Military Medical and Religious Personnel).

20

Refer to § 4.11 (Authorized Staff of Voluntary Aid Societies).

21

Refer to § 4.12 (Staff of a Recognized Aid Society of a Neutral Country).

22

Refer to § 4.13 (Auxiliary Medical Personnel).

23

Refer to § 4.14.1 (Personnel Engaged in the Protection of Cultural Property).

24

Refer to § 4.15 (Persons Authorized to Accompany the Armed Forces).

25

Refer to § 4.16 (Crews of Merchant Marine Vessels or Civil Aircraft).

26

Refer to § 4.3.4 (Types of Unprivileged Belligerents).

27

Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).

1014.3 LAWFUL COMBATANTS AND UNPRIVILEGED BELLIGERENTS
In addition to distinguishing between the armed forces and the civilian population, thelaw of war also distinguishes between “privileged” and “unprivileged,” or “lawful” and“unlawful” combatants. As the Supreme Court has explained:
Lawful combatants are subject to capture and detention as prisoners of war by
opposing military forces. Unlawful combatants are likewise subject to captureand detention, but in addition they are subject to trial and punishment by military
tribunals for acts which render their belligerency unlawful. 29“Unlawful combatants” or “unprivileged belligerents” are persons who, by engaging inhostilities, have incurred one or more of the corresponding liabilities of combatant status (e.g.,
being made the object of attack and subject to detention), but who are not entitled to any of the
distinct privileges of combatant status (e.g., combatant immunity and POW status). 30
4.3.1 “Unprivileged Belligerents” as a Category in Treaty Law. States have, in a few
cases, explicitly recognized in treaties certain categories of unprivileged belligerents, such as
spies and saboteurs. 31 However, States have generally refrained from explicitly recognizing
unprivileged belligerents as a class in treaties in the way that classes of lawful combatants havebeen defined. 32
Law of war treaties have been understood to reflect restrictions on the conduct ofhostilities by States, 33 and States have been reluctant to conclude treaties to afford unprivileged
enemy belligerents the distinct privileges of POW status or the full protections afforded
civilians. 34

28

Refer to § 4.18 (Private Persons Who Engage in Hostilities).

29

Ex parte Quirin, 317 U.S. 1, 31 (1942). See also Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (plurality) (“Thecapture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by‘universal agreement and practice,’ are ‘important incident[s] of war.’”) (quoting Ex parte Quirin at 28, 30).
30Refer to § 4.19 (Rights, Duties, and Liabilities of Unprivileged Belligerents).

31

See, e.g., HAGUE IV REG. arts. 29-31 (defining the category of spy and regulating the treatment of captured spies);
GC art. 5 (regulating the treatment of certain protected persons “detained as a spy or saboteur, or as a person under
definite suspicion of activity hostile to the security of the Occupying Power”). See also GC COMMENTARY 5 (“Itmay, nevertheless, seem rather surprising that a humanitarian Convention should tend to protect spies, saboteurs or
irregular combatants. Those who take part in the struggle while not belonging to the armed forces are acting
deliberately outside the laws of warfare. Surely they know the dangers to which they are exposing themselves. It
might therefore have been simpler to exclude them from the benefits of the Convention, if such a course had beenpossible, but the terms espionage, sabotage, terrorism, banditry and intelligence with the enemy, have so often beenused lightly, and applied to such trivial offences, that it was not advisable to leave the accused at the mercy of thosedetaining them.”).
32

See, e.g., GWS art. 13; GWS-SEA art. 13; GPW art. 4.

33

Refer to § 1.3.3.1 (Law of War as Prohibitive Law).

34

See, e.g., IIA FINAL REPORT OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 433 (ICRC representative
explaining that “[t]he present Conference was engaged in framing a Convention to protect members of armed forces
and similar categories of persons, such as members of organized resistance movements, and another convention to102

Although seldom explicitly recognized as a class in law of war treaties, the category of
unprivileged belligerent may be understood as an implicit consequence of creating the classes of
lawful combatants and peaceful civilians. 35 The concept of unprivileged belligerency, i.e., theset of legal liabilities associated with unprivileged belligerents, may be understood in opposition
to the rights, duties, and liabilities of lawful combatants and peaceful civilians. Unprivileged
belligerents include lawful combatants who have forfeited the privileges of combatant status byengaging in spying or sabotage, and private persons who have forfeited one or more of theprotections of civilian status by engaging in hostilities. 36
4.3.2 Combatant – Notes on Terminology.
4.3.2.1 “Combatant” and “Belligerent”. “Combatant” and “belligerent” havesometimes been used interchangeably and, in this usage, they generally describe individuals who
are not “civilians.”“Belligerent,” however, has also sometimes used to describe States and to contrast such
States with “neutral” or “non-belligerent” States. 37 “Belligerent” has also been used to contrast
armed groups that have “belligerent rights” with armed groups that lack such rights, such as“insurgents.” 38
4.3.2.2 “Lawful,” “Privileged,” and “Qualified”. The distinction between“lawful” and “unlawful” combatants has sometimes been called a distinction between
protect civilians. Although the two Conventions might appear to cover all the categories concerned, irregularbelligerents were not actually protected.”); id. at 612 (Swiss representative taking the view that “[i]n regard to thelegal status of those who violated the laws of war, the [Civilians] Convention could not of course cover criminals or
saboteurs.”); id. at 621 (UK representative rejecting a draft which “would mean that persons who were not entitledto protection under the Prisoners of War Convention would receive exactly the same protection by virtue of the
Civilians Convention, so that all persons participating in hostilities would be protected, whether they conformed to
the laws of war or not. … The whole conception of the Civilians Convention was the protection of civilian victims
of war and not the protection of illegitimate bearers of arms, who could not expect full protection under rules of war
to which they did not conform. Such persons should no doubt be accorded certain standards of treatment, but should
not be entitled to all the benefits of the Convention.”).
35

See, e.g., 10 U.S.C. § 948a (“The term ‘unprivileged enemy belligerent’ means an individual (other than aprivileged belligerent) who” engages in certain conduct); Ex parte Quirin, 317 U.S. 1, 35 (1942) (“Our Government,by thus defining lawful belligerents entitled to be treated as prisoners of war, has recognized that there is a class of
unlawful belligerents not entitled to that privilege, including those who, though combatants, do not wear ‘fixed anddistinctive emblems.’”).
36

Refer to § 4.3.4 (Types of Unprivileged Belligerents).

37

Refer to § 15.1.2 (Classification of States as Belligerent, Neutral, or Non-Belligerent).

38

See, e.g., Memorandum submitted in United States v. Shakur, 690 F. Supp. 1291 (S.D.N.Y. 1988), III
CUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-88 3436, 3448 (“The concept of‘insurgency’ was traditionally used to describe a conflict that did not meet the rigid standards of customaryinternational law for recognition of belligerency.”); Anthony Eden, Secretary of State for Foreign Affairs, United
Kingdom, Oral Answers to Questions, Dec. 8, 1937, HANSARD 330 HOUSE OF COMMONS DEBATES § 357 (“HisMajesty’s Ambassador at Hendaye has been instructed to inform the Salamanca authorities that as belligerent rights
have not been recognised to either party in the Spanish conflict. His Majesty’s Government are not prepared toadmit their right to declare any such blockade.”). Refer to § 3.3.3 (State Recognition of Armed Groups as
Belligerents).

103

“privileged” and “unprivileged” belligerents, i.e., distinguishing between persons who areentitled to the privileges of combatant or belligerent status, and those who are not. 39 Thisdistinction has also sometimes been called a distinction between “qualified” and “unqualified”
belligerents, i.e., distinguishing between persons who have met the qualifications to receive theprivileges of combatant status and those who have not. 40
4.3.2.3 “Combatant” Used Without Modification. “Combatant” and“belligerent,” when used without modification (such as “lawful” or “unlawful,” or “privileged”
or “unprivileged”), have often referred implicitly to lawful or privileged combatants. 41
However, in some cases, “combatant” or “belligerent” has been used to refer to all persons who
engage in hostilities, without taking a position as to whether they are entitled to receive theprivileges of combatant status.
4.3.2.4 General Usage of “Combatant” in This Manual. This manual generally
uses “combatant” to refer implicitly to lawful or privileged combatants.
This manual generally uses the term “unprivileged belligerent” (instead of, e.g.,“unlawful combatant,” “unlawful belligerent,” “unprivileged combatant,” etc.) to refer to persons
who are subject to one or more of the liabilities of combatant status, but are not entitled toreceive its distinct privileges.
4.3.3 Types of Lawful Combatants. Three classes of persons qualify as “lawful” or“privileged” combatants:•

members of the armed forces of a State that is a party to a conflict, aside from certain
categories of medical and religious personnel; 42•

under certain conditions, members of militia or volunteer corps that are not part of thearmed forces of a State, but belong to a State; 43 and•inhabitants of an area who participate in a kind of popular uprising to defend against
foreign invaders, known as a levée en masse. 44
4.3.4 Types of Unprivileged Belligerents. Unprivileged belligerents may generally be

39

See, e.g., 1958 UK MANUAL ¶96 (“Should regular combatants fail to comply with these four conditions, they may
in certain cases become unprivileged belligerents. This would mean that they would not be entitled to the status of
prisoners of war upon their capture.”); Richard R. Baxter, So-Called ‘Unprivileged Belligerency’: Spies, Guerillas,
and Saboteurs, 28 BRITISH YEAR BOOK OF INTERNATIONAL LAW 323 (1951); LIEBER CODE art. 49 (describing who
is “exposed to the inconveniences as well as entitled to the privileges of a prisoner of war”).
40

See, e.g., JAMES M. SPAIGHT, AIRCRAFT IN WAR 51 (1914) (referring to “that outlaw of war law—the unqualified
belligerent”); HAGUE IV REG. arts. 1-3 (describing who meets “[t]he Qualifications of Belligerents”).

41

See, e.g., AP I art. 43(2) (describing “combatants” as those who “have the right to participate directly inhostilities.”).
42

Refer to § 4.5 (Armed Forces of a State).

43

Refer to § 4.6 (Other Militia and Volunteer Corps).

44

Refer to § 4.7 (Levée en Masse).

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classified into two categories that may be distinguished from one another by the presence orabsence of State authorization:•

persons who have initially qualified as combatants (i.e., by falling into one of the three
categories mentioned above), but who have acted so as to forfeit the privileges ofcombatant status by engaging in spying or sabotage; 45 and•persons who never meet the qualifications to be entitled to the privileges of combatantstatus, but who have, by engaging in hostilities, incurred the corresponding liabilities ofcombatant status (i.e., forfeited one or more of the protections of civilian status). 46

These two categories of unprivileged belligerents generally receive the same treatment. 47
However, the distinction that the first category has State authorization, while the second category
does not, may be important and create different legal results. For example, the combatant who
spies regains the entitlement to the privileges of combatant status upon returning to friendly
lines, but the private person who spies cannot regain a status to which the person was neverentitled. 48 Similarly, acts of unprivileged belligerency on the high seas may constitute piracy, acrime under international law, although similar acts by persons acting under State authority, even
if they were not members of the armed forces, could not constitute piracy. 49
4.4 RIGHTS, DUTIES, AND LIABILITIES OF COMBATANTS
Combatants have a special legal status, i.e., certain rights, duties, and liabilities. As
discussed below, combatants may engage in hostilities and are liable to being made the object of
attack by enemy combatants. Combatants must conduct their operations in accordance with thelaw of war. They have the right to POW status if they fall into the power of the enemy during
international armed conflict. Combatants have legal immunity from domestic law for acts done
under military authority and in accordance with the law of war.
4.4.1 Combatants – Conduct of Hostilities. In general, combatants may engage inhostilities and may be made the object of attack by enemy combatants. 50 However, combatants
placed hors de combat must not be made the object of attack. 51
Combatants must conduct their operations in accordance with the law of war. For
example, combatants must take certain measures to distinguish themselves from the civilian
population. 52 Combatants also may not kill or wound the enemy by resort to perfidy. 53
45

Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).

46

Refer to § 4.18 (Private Persons Who Engage in Hostilities).

47

Refer to § 4.19 (Rights, Duties, and Liabilities of Unprivileged Belligerents).

48

Refer to § 4.17.5 (Spying and Sabotage – Forfeiture of the Privileges of Combatant Status).

49

Refer to § 4.18.5 (Private Persons Who Engage in Hostilities and the Law of War).

50

Refer to § 5.7 (Combatants).

51

Refer to § 5.9 (Persons Placed Hors de Combat).

52

Refer to § 5.4.8 (Obligation of Combatants to Distinguish Themselves When Conducting Attacks).

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Combatants may make enemy combatants and other military objectives the object of attack, but
may not make the civilian population and other protected persons and objects the object of
attack. 54 Combatants must exercise due regard to reduce the risk of incidental harm to thecivilian population and other persons and objects that may not be made the object of attack. 55
Chapter V addresses in detail the rules that combatants must follow in the conduct of hostilities.
4.4.2 Combatants – POW Status During Detention. Combatants are liable to capture anddetention by enemy combatants, but are entitled to POW status when they fall into the power ofthe enemy during international armed conflict. POWs, like all detained individuals, must betreated humanely. 56 In addition, POWs are afforded a variety of privileges in detention inaccordance with the GPW, such as camp canteens, advances of pay, and permission to wear theirbadges of rank, nationality, or decorations. 57 POWs also have duties in detention, such as
identifying themselves to their captors, 58 and they are subject to the laws, regulations, and ordersof the Detaining Power. 59 Chapter IX addresses in detail the treatment of POWs and their duties.
In general, POWs shall be released and repatriated without delay after the cessation ofactive hostilities. 60 However, seriously wounded, injured, or sick POWs should be returned
before the end of hostilities. 61 In addition, after the hostilities have ended, certain POWs may beheld in connection with criminal proceedings. 62
In general, combatants retain their right to POW status and treatment, even if they arealleged to have committed crimes before capture. 63 For example, POWs are entitled to a variety
of rights in relation to judicial proceedings against them. 64 In addition, POWs serving
disciplinary punishment shall continue to receive the benefits of the GPW, except insofar asthese benefits are necessarily rendered inapplicable by the mere fact that the POW is confined. 65
Combatants captured while engaged in spying or sabotage forfeit their entitlement to
POW status. 66 In cases of doubt as to whether a detainee is entitled to POW status, that person
53

Refer to § 5.22 (Treachery or Perfidy Used to Kill or Wound).

54

Refer to § 5.5 (Discrimination in Conducting Attacks).

55

Refer to § 5.10 (Proportionality in Conducting Attacks).

56

Refer to § 9.5 (Humane Treatment and Basic Protections for POWs).

57

Refer to § 9.17 (Canteens for POWs); § 9.18.3 (Advance of Pay); § 9.22.4 (Rank and Age of POWs).

58

Refer to § 9.8 (Interrogation of POWs).

59

Refer to § 9.26.1 (POWs Subject to the Laws, Regulations, and Orders in Force in the Armed Forces of the
Detaining Power).
60

Refer to § 9.37 (Release and Repatriation After Hostilities).

61

Refer to § 9.36.1 (Direct Repatriation of Seriously Wounded, Injured, or Sick POWs).

62

Refer to § 9.37.4.3 (POWs Undergoing Criminal Proceedings for an Indictable Offense).

63

Refer to § 9.26.4 (Retention of Benefits of the GPW Even if Prosecuted for Pre-Capture Acts).

64

Refer to § 9.28 (Judicial Proceedings and Punishment).

65

Refer to § 9.27.6.2 (Retention of the Benefits of the GPW While Undergoing Disciplinary Punishment).

66

Refer to § 4.17.5 (Spying and Sabotage – Forfeiture of the Privileges of Combatant Status).

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should be afforded the protections of POW status until their status has been determined by acompetent tribunal. 67
4.4.3 Combatants - Legal Immunity From a Foreign State’s Domestic Law. Internationallaw affords combatants a special legal immunity from the domestic law of the enemy State for
their actions done in accordance with the law of war. 68 This legal immunity is sometimes called
the “combatant’s privilege” or “combatant immunity.” This means that a combatant’s “killing,wounding, or other warlike acts are not individual crimes or offenses,” 69 if they are done under
military authority and are not prohibited by the law of war. 70 Similarly, a combatant’s warlike
acts done under military authority and in accordance with the law of war also do not create civil
liability. 71
Combatants lack legal immunity from an enemy State’s domestic law for acts that areprohibited by the law of war. 72 Also, combatants lack legal immunity from an enemy State’s
domestic law while engaging in spying or sabotage. 73 Combatants, however, must receive a fairand regular trial before any punishment. 74
67

Refer to § 4.27.2 (POW Protections for Certain Persons Until Status Has Been Determined).

68

This legal immunity would also be applicable with respect to neutral States to the extent they sought to exercise
jurisdiction over the conduct of belligerents. Traditionally, however, neutral States generally did not assert
jurisdiction over conduct committed between belligerents. Refer to § 18.21.1 (Jurisdiction Over War Crimes).
69

LIEBER CODE art. 57. See also Johnson v. Eisentrager, 339 U.S. 763, 793 (1950) (Black, J., dissenting)(explaining that “legitimate ‘acts of warfare,’ however murderous, do not justify criminal conviction” and that “it isno ‘crime’ to be a soldier.”); WINTHROP, MILITARY LAW & PRECEDENTS 778 (“The State is represented in active
war by its contending army, and the laws of war justify the killing or disabling of members of the one army by thoseof the other in battle or hostile operations.”); Arce v. State, 202 S.W. 951 (Texas Court of Criminal Appeals 1918)(reversing homicide conviction of Mexican soldiers prosecuted in connection with hostilities between the UnitedStates and Mexico). Consider AP I art. 43(2) (“combatants … have the right to participate directly in hostilities.”).
70

See United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1236 (“actsdone in time of war under the military authority of an enemy cannot involve criminal liability on the part of officers
or soldiers if the acts are not prohibited by the conventional or customary rules of war.”); Daniel Webster,
Department of State, Letter to John G. Crittenden, Attorney General, Mar. 15, 1841, reprinted in THE DIPLOMATIC
AND OFFICIAL PAPERS OF DANIEL WEBSTER, WHILE SECRETARY OF STATE 134-35 (1848) (explaining “[t]hat anindividual forming part of a public force, and acting under the authority of his Government, is not to be held
answerable, as a private trespasser or malefactor, is a principle of public law sanctioned by the usages of all civilized
nations”).
71

See Freeland v. Williams, 131 U.S. 405, 416 (1889) (“Ever since the case of Dow v. Johnson, 100 U.S. 158, thedoctrine has been settled in the courts that in our late civil war, each party was entitled to the benefit of belligerent
rights, as in the case of public war, and that, for an act done in accordance with the usages of civilized warfare,
under and by military authority of either party, no civil liability attached to the officers or soldiers who acted undersuch authority.”); Dow v. Johnson, 100 U.S. 158, 165 (1879) (“There would be something singularly absurd inpermitting an officer or soldier of an invading army to be tried by his enemy, whose country it had invaded. The
same reasons for his exemption from criminal prosecution apply to civil proceedings.”).

72

See United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT
223 (“He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state
if the state in authorizing action moves outside its competence under international law.”).
73

Refer to § 4.17.3 (Spying and Sabotage – Forfeiture of the Privileges of Combatant Status).

74

Refer to § 9.28.4 (Rights of Defense and Trial Procedure).

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4.4.3.1 Combatants - Legal Immunity and POW Status. The “combatant’s
privilege” from liability under domestic law has been associated with POW status. 75 In thatvein, U.S. courts have inferred from provisions of the GPW the combatant’s privilege against
being prosecuted by capturing States. 76 However, the legal immunity that combatants may beafforded is not the same as POW status. For example, a combatant’s conduct may be protectedby legal immunities even when that person is not in the power of the enemy and thus is not a
POW. As another example of how POW status and legal immunity may differ, the GPW
generally affords the same treatment to all classes of POWs identified in Article 4. However, not
all the categories of POWs identified in Article 4 of the GPW, such as persons authorized toaccompany the armed forces, receive the general license to commit belligerent acts that isafforded members of the armed forces. 77
4.4.3.2 Combatants – Legal Immunity and Sovereignty. In addition to being
associated with humanitarian principles governing the treatment of POWs, the combatant’s
privilege has also been viewed as an application of the immunity that international law affords
States from each other’s jurisdiction. 78 In this view, “the act of the soldier who conforms to thelaw of war and does not engage in private acts of warfare is an act of state depriving the enemy

75

See, e.g., Memorandum submitted in United States v. Shakur, 690 F. Supp. 1291 (S.D.N.Y. 1988), III
CUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-88 3436, 3451 (“It is wellaccepted that individuals who enjoy the status of prisoner of war are generally immune from prosecution for
legitimate acts of war in international armed conflicts.”); ALLAN ROSAS, THE LEGAL STATUS OF PRISONERS OF WAR:
A STUDY IN INTERNATIONAL HUMANITARIAN LAW APPLICABLE IN ARMED CONFLICTS 305 (1976) (“there has
traditionally been a close relationship between the concept of prisoners of war and that of lawful combatants.”);LIEBER CODE art. 56 (“A prisoner of war is subject to no punishment for being a public enemy, nor is any revenge
wreaked upon him by the intentional infliction of any suffering, or disgrace, by cruel imprisonment, want of food,by mutilation, death, or any other barbarity.”).
76

See United States v. Lindh, 212 F. Supp. 2d 541, 553 (E.D. Va. 2002) (memorandum opinion) (interpreting
articles 87 and 99 of GPW to “make clear that a belligerent in a war cannot prosecute the soldiers of its foes for thesoldiers’ lawful acts of war”); United States v. Khadr, 717 F.Supp.2d. 1215, 1222 footnote 7 (USCMCR 2007)(same); United States v. Pineda, 2006 U.S. Dist. LEXIS 17509, 6-8 (D.D.C. Mar. 23, 2006) (D.D.C. 2006) (same).
See also United States v. Noriega, 746 F. Supp. 1506, 1529 (S.D. Fla. 1990) (“As is evident from its text andconstrued as a whole, the essential purpose of the Geneva Convention Relative to the Treatment of Prisoners of War
is to protect prisoners of war from prosecution for conduct which is customary in armed conflict.”).
77

ALLAN ROSAS, THE LEGAL STATUS OF PRISONERS OF WAR: A STUDY IN INTERNATIONAL HUMANITARIAN LAWAPPLICABLE IN ARMED CONFLICTS 305 (1976) (“The relationship between the concepts of lawful combatants andprisoners of war has been said to arise from the fact that lawful combatants are always entitled to prisoner-of-war
status, while the reverse is not necessarily true, as there are categories of persons entitled to the status of prisoners of
war who as civilians enjoy no general license to commit belligerent acts.”).
78

Cf. United States v. Thierichens, 243 F. 419, 420 (E.D. Pa. 1917) (“The well-settled rule that, under the comity
existing between nations, the public armed ship of a friendly nation, acting under the immediate and direct commandof the sovereign power, is not to be interfered with by the courts of a foreign state, is based upon the principle that, if
the courts did attempt to assume jurisdiction over such vessel, it would require the sovereign of the nation to which
the vessel belongs to be impleaded in the court from which the process issued, and, by common consent of nations,such situations could not arise without interference with the power and dignity of the foreign sovereign. Therefore
the courts will not assume jurisdiction over such vessel or its officers, while acting as such, but leave controversies
arising out of the acts of the vessel, and its officers, while acting in their official character, for settlement throughdiplomatic channels.”).

108

state of jurisdiction.” 79 This view of the combatant’s privilege requires that combatants act
under the commission of a belligerent State. 80 This view also reflects the principle that onlyStates may authorize the resort to force. 81
4.4.4 Nationality and Combatant Status.
4.4.4.1 Nationals of Neutral States in Enemy Forces. Members of enemy armed
forces may include nationals of neutral or non-belligerent States. For example, the U.S. armed
forces include many foreign nationals, and the United States could be engaged in hostilities whenthose foreign nationals’ home States are not. Nationals of a neutral or non-belligerent State whoare members of the armed forces of a belligerent State should be treated like other members ofthat State’s armed forces. 82 For example, such nationals are entitled to POW status if they fall
into the power of the enemy during international armed conflict. 83
4.4.4.2 Nationals of a State Who Join Enemy Forces. The special privileges thatinternational law affords combatants generally do not apply between a national and his or her
State of nationality. 84 For example, provisions of the GPW assume that POWs are not nationalsof the Detaining Power. 85 Thus, international law does not prevent a State from punishing its

79

Richard Baxter, The Municipal and International Law Basis of Jurisdiction over War Crimes, 28 BRITISH YEAR
BOOK OF INTERNATIONAL LAW 382, 385 (1951). See also Hans Kelsen, Collective and Individual Responsibility inInternational Law with Particular Regard to the Punishment of War Criminals, 31 CALIFORNIA LAW REVIEW 530,
549 (1943) (“That a State violates international law if it punishes as a criminal, according to its national law, amember of the armed forces of the enemy for an act of legitimate warfare, can be explained only by the fact that theState by so doing makes an individual responsible for an act of another State. According to international law, the act
in question must be imputed to the enemy State and not to the individual who in the service of his State has
performed the act. It cannot be considered as a crime of the individual because it must not be considered as his act
at all.”); LIEBER CODE art. 41 (“All municipal law of the ground on which the armies stand, or of the countries towhich they belong, is silent and of no effect between armies in the field.”).
80

See Wharton, Com. Am. Law, § 221, VII MOORE’S DIGEST 175 (“It is necessary in order to place the members ofan army under the protection of the law of nations, that it should be commissioned by a state. … Hence, all civilized
nations have agreed in the position that war to be a defence to an indictment for homicide or other wrong, must be
conducted by a belligerent state, and that it can not avail voluntary combatants not acting under the commission of abelligerent.”).
81

Refer to § 1.11.1.1 (Competent Authority (Right Authority) to Wage War for a Public Purpose).

82

Refer to § 15.6.2.1 (No More Severe Treatment Than Nationals of an Opposing Belligerent State).

83

LEVIE, POWS 74-75 (“Normally, the nationality of the individual falling within one of the categories enumerated
in Article 4 is that of the belligerent Power for which he is fighting. However, he may have the nationality of aneutral, or of an ally of the belligerent in whose armed forces he is serving at the time that he falls into the power ofthe enemy--or even of the adverse Party, or one of its allies. Does this affect his entitlement to prisoner-of-war
status? Apparently there is no dispute with respect to the entitlement to prisoner-of-war status of an individual who
is a national of a neutral State or of a State which is an ally of the belligerent in whose armed forces he is serving.”).
84

Compare § 10.3.3.1 (A State’s Own Nationals).

85

See, e.g., GPW art. 87 (“When fixing the penalty, the courts or authorities of the Detaining Power shall take into
consideration, to the widest extent possible, the fact that the accused, not being a national of the Detaining Power, is
not bound to it by any duty of allegiance, and that he is in its power as the result of circumstances independent of his
own will.”). Refer to § 9.26.6 (Prohibited Penalties); § 9.28.6 (Death Sentences).

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nationals whom it may capture among the ranks of enemy forces. 86 This rule is significant in
non-international armed conflicts in which a State is fighting a rebel group composed of its own
citizens. 87
Although, as a matter of international law, nationals may not assert the privileges ofcombatant status against their own State, they may be subject to the liabilities of combatantstatus in relation to their own State under that State’s domestic law. For example, under U.S.
law, U.S. nationals who join enemy forces have been subject to the liabilities of combatantstatus, such as potentially being made the object of attack or detained. 88
4.4.4.3 Nationals of Allied or Co-Belligerent States. Nationals of an allied or cobelligerent State who are serving with enemy forces are in a position that is similar to theposition of nationals of a State who are serving with enemy forces. If the nationals of an allied
or co-belligerent State who are serving with enemy forces are captured by a State, they may betransferred to their State of nationality (i.e., the co-belligerent or allied State), which is not
required to afford them POW status. 89 However, U.S. practice as the Detaining Power in thissituation has been to afford POW treatment to such individuals if they claim such protection. 90

86

See Public Prosecutor v. Oie Hee Koi and Associated Appeals (UK Privy Council, Dec. 4 1967), LEVIE,
DOCUMENTS ON POWS 737, 741 (quoting LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW) (“‘The privilegesof members of armed forces cannot be claimed by members of the armed forces of a belligerent who go over to theforces of the enemy and are afterwards captured by the former. They may be, and always are, treated as criminals.
The same applies to traitorous subjects of a belligerent who, without having been members of his armed forces, fightin the armed forces of the enemy. Even if they appear under the protection of a flag of truce, deserters and traitors
may be seized and punished.’ This edition was published in 1951 after Aug. 12, 1949, the date of the Geneva
Conventions, and in their lordships’ opinion correctly states the relevant law.”).
87

Refer to § 17.12 (Use of Captured or Surrendered Enemy Personnel in NIAC).

88

See, e.g., Hamdi v. Rumsfeld 542 U.S. 507, 519 (2004) (plurality) (“There is no bar to this Nation’s holding oneof its own citizens as an enemy combatant.”); Ex parte Quirin, 317 U.S. 1, 37 (1942) (“Citizenship in the UnitedStates of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful
because in violation of the law of war.”); In re Territo, 156 F. 2d 142, 145 (9th Cir. 1946) (rejecting the argument ofpetitioner, an Italian army draftee, that he could not be subject to the liabilities of combatant status and detained
because he was a U.S. citizen).
89

For example, DEPARTMENT OF THE ARMY PAMPHLET 20-213, History of Prisoner Of War Utilization By The
United States Army, 1776-1945, 198 (Jun. 24, 1955) (“During the [Second World] war many soldiers of a state oforigin other than Germany were found in German uniform among German prisoners of war. Therefore when Allied
forces captured these prisoners they segregated them by nationalities. The individual PW was then interrogated byrepresentatives of his country’s government in exile. If acceptable to that government and if he was willing, the PW
was sent to Great Britain for service in an army unit of his national government. If the PW was rejected, he wastreated in all respects as a German prisoner of war.”).

90

For example, Announcement Concerning Soviet Allegations on Allied Prisoners of War, May 3, 1945, 12
DEPARTMENT OF STATE BULLETIN 864 (May 6, 1945) (“In as much as the American Government has always
insisted that all wearers of the American uniform, whether American citizens or not, are, as American soldiers,
entitled to full protection of the [1929] Geneva convention and has so informed the enemy, these German prisonersof war of apparent Soviet nationality claiming such protection are being held as German prisoners of war in order toprotect American soldiers in enemy hands.”).

110

4.5 ARMED FORCES OF A STATE
Members of the armed forces of a State, including members of all groups that are part of
the armed forces of a State, but excluding certain medical and religious personnel, 91 receive
combatant status (i.e., its rights, duties, and liabilities) by virtue of that membership. 92 Thissection addresses various classes of persons within the armed forces of a State.
4.5.1 Components of Armed Forces. The armed forces of a State may include a varietyof components, such as militia or volunteer corps that form part of those armed forces. 93
The U.S. armed forces include members of the active duty military, the reserve forces,
and the National Guard. U.S. armed forces also include the Coast Guard, which normallyoperates under the Department of Homeland Security. 94
The U.S. armed forces may also include the Commissioned Corps of the U.S. Public
Health Service, which normally operates under the Department of Health and Human Services. 95
Similarly, members of the Commissioned Corps of the National Oceanic and Atmospheric
Administration, which normally operates under the Department of Commerce, may also become
part of the U.S. armed forces. 96 Members of these and other organizations assigned to, andserving with, the U.S. armed forces may be subject to the Uniform Code of Military Justice. 97
91

Refer to § 4.9 (Military Medical and Religious Personnel).

92

See GPW art. 4A(1) (defining “prisoners of war, in the sense of the present Convention,” to include “(1)[m]embers of the armed forces of a Party to the conflict” who have fallen into the power of the enemy); HAGUE IV
REG. art. 1 (“The laws, rights, and duties of war apply … to armies”); LIEBER CODE art. 57 (“So soon as a man isarmed by a sovereign government and takes the soldier’s oath of fidelity, he is a belligerent;”). Cf. sources cited infootnote 150 in § 4.6.1.3 (Application of GPW 4A(2) Conditions to the Armed Forces of a State).
93

See GPW art. 4A(1) (defining “prisoners of war, in the sense of the present Convention,” to include “members ofmilitias or volunteer corps forming part of such armed forces” who have fallen into the power of the enemy); HAGUE
IV REG. art. 1 (“In countries where militia or volunteer corps constitute the army, or form part of it, they areincluded under the denomination ‘army.’”).
94

See 10 U.S.C. § 101(a)(4) (explaining that, for the purposes of U.S. domestic law, “the term ‘armed forces’ means
the Army, Navy, Air Force, Marine Corps, and Coast Guard.”); 14 U.S.C. § 1 (“The Coast Guard as established
January 28, 1915, shall be a military service and a branch of the armed forces of the United States at all times. The
Coast Guard shall be a service in the Department of Homeland Security, except when operating as a service in the
Navy.”).

95

42 U.S.C. § 217 (“In time of war, or of emergency involving the national defense proclaimed by the President, hemay by Executive order declare the commissioned corps of the [Public Health] Service to be a military service.”).

96

33 U.S.C. § 3061 (“The President may, whenever in the judgment of the President a sufficient national emergency
exists, transfer to the service and jurisdiction of a military department such vessels, equipment, stations, and officersof the Administration as the President considers to be in the best interest of the country. … An officer of the
Administration transferred under this section, shall, while under the jurisdiction of a military department, haveproper military status and shall be subject to the laws, regulations, and orders for the government of the Army,
Navy, or Air Force, as the case may be, insofar as the same may be applicable to persons whose retention
permanently in the military service of the United States is not contemplated by law.”).
97
10 U.S.C. § 802(a)(8) (“Members of the National Oceanic and Atmospheric Administration, Public HealthService, and other organizations, when assigned to and serving with the armed forces,” are subject to the Uniform
Code of Military Justice).

111

The U.S. armed forces may also include the volunteer auxiliary of the Air Force when theservices of the Civil Air Patrol are used in certain missions. 98
4.5.1.1 Reserve Armed Forces. Although domestic law sometimes differentiates
between the reserve and active components of the armed forces for the purpose of entitlement tobenefits and other matters, international law treats members of the reserve forces that are part of
the armed forces of a State the same as other members of the armed forces.
In the United States, reserve armed forces include the reserve components of the Army,
Navy, Air Force, Marine Corps, and Coast Guard, as well as the Army National Guard of theUnited States and the Air National Guard of the United States. 99
4.5.2 Classes of Persons Within the Armed Forces.
4.5.2.1 Special Operations Forces. Special operations forces may be described as
military forces specially organized, trained, and equipped to achieve military, political,
economic, and psychological objectives by unconventional military means in hostile, denied, or
politically sensitive areas. 100 As members of the armed forces, special operations forces have thesame rights, duties, and liabilities as other members of the armed forces. 101
Nonetheless, in the past, some States have illegitimately questioned whether special
operations forces are entitled to the privileges of combatant status. For example, during WorldWar II, Hitler directed that German forces summarily execute captured Allied special operations
forces. 102 Post-World War II war crimes tribunals found that this order was not a legitimate
reprisal, violated the prohibition against executions without a fair trial, and improperly denied
POW status to soldiers wearing a uniform behind enemy lines. 103
98

See 10 U.S.C. § 9442(b)(1) (“The Secretary of the Air Force may use the services of the Civil Air Patrol to fulfill
the noncombat programs and missions of the Department of the Air Force.”).

99

10 U.S.C. § 10101 (“The reserve components of the armed forces are: (1) The Army National Guard of theUnited States. (2) The Army Reserve. (3) The Navy Reserve. (4) The Marine Corps Reserve. (5) The Air National
Guard of the United States. (6) The Air Force Reserve. (7) The Coast Guard Reserve.”).
100

JOINT PUBLICATION 3-05, Special Operations, ix (Jul. 16, 2014) (“Special operations require unique modes of
employment, tactics, techniques, procedures, and equipment. They are often conducted in hostile, denied, or
politically and/or diplomatically sensitive environments, and are characterized by one or more of the following:time-sensitivity, clandestine or covert nature, low visibility, work with or through indigenous forces, greater
requirements for regional orientation and cultural expertise, and a higher degree of risk. Special operations provide
joint force commanders (JFCs) and chiefs of mission with discrete, precise, and scalable options that can besynchronized with activities of other interagency partners to achieve United States Government (USG) objectives.”).
101

Refer to § 4.4 (Rights, Duties, and Liabilities of Combatants).

102

Adolf Hitler, Commando Order, reprinted in Trial of Generaloberst Nickolaus von Falkenhorst, XI U.N. LAW
REPORTS 18, 20-21 (British Military Court, Brunswick, Jul. 29-Aug. 2, 1946); also reprinted in United States v. vonLeeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 525-27; also reprinted in
The Dostler Case, Trial of General Anton Dostler, I U.N. LAW REPORTS 22, 33-34 (U.S. Military Commission,
Rome, Oct. 8-12, 1945).
103

See Trial of Generaloberst Nickolaus von Falkenhorst, XI U.N. LAW REPORTS 18, 28 (British Military Court,
Brunswick, Jul. 29-Aug. 2, 1946) (reporter noting that Hitler’s commando order was clearly illegal because it
provided “that there should be no military courts, for even a war traitor is entitled to a trial,” and because the112Special operations forces personnel, like other members of the armed forces, remain
entitled to the privileges of combatant status, unless they temporarily forfeit such privileges byengaging in spying or sabotage. 104 In some cases, military personnel who do not wear the
standard uniform of their armed forces may nonetheless remain entitled to the privileges ofcombatant status because the wearing of such uniforms does not constitute the element of “acting
clandestinely or under false pretenses.” 105 For example, special operations forces havesometimes dressed like friendly forces. 106 Special operations forces personnel remain entitled tothe privileges of combatant status even when operating detached from the main body of forces
behind enemy lines. 107
4.5.2.2 Members Trained as Medical Personnel, but Not Attached to the Medical
Service. Members of the armed forces might have medical training but not be designated as
military medical personnel. For example, before joining the armed forces, a person might havebeen trained as a nurse or physician, and after joining the armed forces might not be designatedas part of the medical corps.
Because such personnel have not been designated as military medical personnel, they areare combatants, like other members of the armed forces. 108 However, if they fall into the powerof the enemy during international armed conflict, such personnel may be required to tend to
fellow POWs, in light of their previous training. In particular, POWs who, though not attachedto the medical service of their armed forces, are physicians, surgeons, dentists, nurses, or medicalorderlies may be required by the Detaining Power to exercise their medical functions in theinterests of POWs dependent on the same Power. 109 In that case, they shall continue to be
POWs, but shall receive the same treatment as corresponding medical personnel retained by the“commando order was to apply to troops engaged on commando operations whether in uniform or not”); The
Dostler Case, Trial of General Anton Dostler, I U.N. LAW REPORTS 22, 27-33 (U.S. Military Commission, Rome,
Oct. 8-12, 1945) (conviction of a German General for the murder of 15 U.S. Army personnel and rejection of his
defense that the commando order was a valid and applicable superior order); Trial of Karl Adam Golkel and
Thirteen Others, V U.N. LAW REPORTS 45-53 (British Military Court, Wuppertal, Germany, May 15-21, 1946) (trialof German soldiers for killing eight members of the British Special Air Service); United States v. von Leeb, et al.
(The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 527 (“This order was criminal on its
face. It simply directed the slaughter of these ‘sabotage’ troops.”).
104

Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).

105

Refer to § 4.17.2.1 (Acting Clandestinely or Under False Pretenses).

106

Refer to § 5.25.2.1 (Mimicking Other Friendly Forces).

107

See Trial of Generaloberst Nickolaus von Falkenhorst, XI U.N. LAW REPORTS 18, 28 (British Military Court,
Brunswick, Jul. 29-Aug. 2, 1946) (reporter noting that “[i]t is not possible to say that troops who engage in acts ofsabotage behind the enemy lines are bandits, as Hitler declared them. They carry out a legitimate act of war,
provided the objective relates directly to the war effort and provided they carry it out in uniform.”); LIEBER CODE
art. 81 (“Partisans are soldiers armed and wearing the uniform of their army, but belonging to a corps which acts
detached from the main body for the purpose of making inroads into the territory occupied by the enemy. If
captured, they are entitled to all the privileges of the prisoner of war.”).
108

Refer to § 4.9.2.2 (Designated by Their Armed Forces).

109
GPW art. 32 (“Prisoners of war who, though not attached to the medical service of their armed forces, arephysicians, surgeons, dentists, nurses or medical orderlies, may be required by the Detaining Power to exercise their
medical functions in the interests of prisoners of war dependent on the same Power.”).

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Detaining Power. 110 They shall be exempted from any other work under Article 49 of the
GPW. 111
4.5.2.3 Members Who Are Ministers of Religion Without Having Officiated as
Chaplains to Their Own Forces. Members of the armed forces might be ministers of religion,but might not be designated as military religious personnel. 112 Because such personnel have notbeen designated as military religious personnel, they are combatants, like other members of thearmed forces. 113 However, if they fall into the power of the enemy during international armed
conflict, such personnel may minister to fellow POWs. In particular, POWs who are ministers of
religion, without having officiated as chaplains to their own forces, shall be at liberty, whatever
their denomination, to minister freely to the members of their community. 114 For this purpose,
they shall receive the same treatment as chaplains retained by the Detaining Power. 115 They
shall not be obliged to do any other work. 116
4.5.2.4 Draftees. Some States require military service for categories of theirnationals. The United States employs all-volunteer armed forces, although it has drafted its
nationals into military service in prior conflicts.
Under international law, a draftee, i.e., a person who has been compelled to join a State’s
armed forces, is to be treated the same as other members of the armed forces. 117
4.5.2.5 Deserters. A deserter from the armed forces of a belligerent who falls into
the power of the enemy in international armed conflict is a POW. 118 Similarly, a deserter who isinterned by a neutral State would also be treated as a POW. 119 The deserter’s relationship withhis or her armed forces is a question of that State’s domestic law and not international law.
States generally forbid members of their armed forces from desertion and generally regard
members of the armed forces who desert as continuing to be members of their armed forces.

110

GPW art. 32 (“In that case they shall continue to be prisoners of war, but shall receive the same treatment as
corresponding medical personnel retained by the Detaining Power.”).
111

GPW art. 32 (“They shall be exempted from any other work under Article 49.”).

112

Refer to § 4.9.2 (Requirements for Military Medical and Religious Status).

113

Refer to § 4.9.2.2 (Designated by Their Armed Forces).

114

GPW art. 36 (“Prisoners of war who are ministers of religion, without having officiated as chaplains to their own
forces, shall be at liberty, whatever their denomination, to minister freely to the members of their community.”).
115

GPW art. 36 (“For this purpose, they shall receive the same treatment as the chaplains retained by the Detaining
Power.”).
116

GPW art. 36 (“They shall not be obliged to do any other work.”).

117

See 1958 UK MANUAL ¶ 89(i) (noting that “[t]he members, male and female, of the land, sea and air forces areentitled to recognition as belligerent forces whether they have joined voluntarily or have been compelled to do so by
their own law”).
118

See GREENSPAN, MODERN LAW OF LAND WARFARE 99 (“Deserters from the enemy do not thereby lose their rightto be treated as prisoners of war if they fall into the hands of the opposing side.”).

119

Refer to § 15.16 (Belligerent Forces Taking Refuge in Neutral Territory).

114

Deserters who are subsequently captured by their own armed forces are not POWs
because they are not in the power of the enemy and because the privileges of combatant status
are generally understood not to apply, as a matter of international law, between nationals andtheir State of nationality. 120
4.5.2.6 Defectors. Defectors are persons from one side’s armed forces who
voluntarily join the armed forces of the opposing side. They are generally not regarded as POWs
while serving in their new armed force. 121
Defectors serving in the forces of the enemy who are captured by the State to which they
originally owed an allegiance generally would not be entitled to POW status because theprivileges of combatant status are generally understood not to apply, as a matter of internationallaw, between nationals and their State of nationality. 122
States may not compel POWs, retained personnel, or protected persons in their power todefect and serve in their armed forces. 123
4.5.3 Regular Armed Forces Who Profess Allegiance to a Government or an Authority
Not Recognized by the Detaining Power. During international armed conflict, members of
regular armed forces who profess allegiance to a Government or an authority not recognized by
the Detaining Power are treated as members of the armed forces of a State. 124 Under Article
4A(3) of the GPW, they receive POW status, and they should also receive the rights, duties, andliabilities of combatants. 125
Article 4A(3) of the GPW was developed to address situations like those that had
occurred during World War II, when members of a military force continued fighting after their
State had been occupied. 126 For example, military forces might continue to fight for a120

Refer to § 4.4.4 (Nationality and Combatant Status).

121

Refer to § 9.3.4.1 (Having Fallen).

122

Refer to § 4.4.4.2 (Nationals of a State Who Join Enemy Forces).

123

Refer to § 9.19.2.3 (Labor Assignments That May Be Compelled); § 10.7.3 (Compulsory Work for Protected
Persons in a Belligerent’s Home Territory); § 11.20.1.1 (Prohibition on Compulsory Service in an Occupying
Power’s Armed Forces).
124

GPW art. 4A(3) (defining “prisoners of war, in the sense of the present Convention,” to include “[m]embers of
regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining
Power” who have fallen into the power of the enemy).
125

Refer to § 4.4 (Rights, Duties, and Liabilities of Combatants).

126

See INTERNATIONAL COMMITTEE OF THE RED CROSS, Report on the Work of the Conference of Government
Exports for the Study of the Convention for the Protection of War Victims, 106 (Geneva, Apr. 14-26, 1947) (“In its
report, the ICRC stressed that certain States [during World War II] had denied the status of belligerents to combatantunits subject to a Government or authority which these States did not recognise; this despite the fact that these units(e.g. the French forces constituted under General de Gaulle) fulfilled all the conditions required for the granting of
PW status. The Commission approved the ICRC’s proposal that these armed forces should enjoy PW status,
irrespective of the Government or authority under whose orders they might claim to be.”).

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government-in-exile or for a government that had ceased to exist. 127 Such a government would
provide the right authority for its regular armed forces to participate in the ongoing war and toreceive POW status upon capture by the enemy. 128 Members of those forces were sometimes
denied POW status by an enemy State, even though other States recognized the group to which
they belonged as a co-belligerent force. 129
4.5.4 Persons Belonging, or Having Belonged, to the Armed Forces of an Occupied State.
Under Article 4B(1) of the GPW, persons belonging, or having belonged, to the armed forces ofan occupied State should be treated as POWs if, while hostilities are continuing outside occupied
territory, the Occupying Power considers it necessary, by reason of their allegiance to the armed
forces, to intern them. 130
Article 4B(1) of the GPW seeks to address the proper status of an army demobilized by
the Occupying Power while a portion of those same armed forces continue the struggle. Whenthe forces are demobilized, they are treated as civilians, but when recalled for internment basedon their prior service, they are treated as POWs. 131 In particular, States developed this provision
to address Germany’s practice during World War II of arresting demobilized military personnel
from occupied States. 132 These personnel were often interned and sought to escape to join theongoing fighting. This provision was promulgated to ensure that individuals in similar
circumstances would receive POW treatment if they were interned. For example, the rules forthe parole of POWs would apply to them. 133 Similarly, the rules relating to POW escape would
127

II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 415 (“Mr. Lamarle (France) realizedthat cases might arise where combatants claiming allegiance to an authority which was not recognized by the
Detaining Power might be deprived of the benefit of the Convention; but he thought the word ‘authority’ afforded
sufficient safeguards to such combatants. After an exchange of views on the subject, the Committee agreed that theword ‘authority’ afforded sufficient safeguards to combatants claiming allegiance to Governments which had ceased
to exist.”).

128

Refer to § 1.11.1.1 (Competent Authority (Right Authority) to Wage War for a Public Purpose).

129

Refer to § 3.3.3.3 (Recognition of Friendly Armed Groups as Lawful Belligerents).

130

GPW art. 4B(1) (“(1) Persons belonging, or having belonged, to the armed forces of the occupied country, if theoccupying Power considers it necessary by reason of such allegiance to intern them, even though it has originallyliberated them while hostilities were going on outside the territory it occupies, in particular where such persons havemade an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or
where they fail to comply with a summons made to them with a view to internment.”).
131

GPW COMMENTARY 69 (“In fact, as one delegate to the Conference pointed out, the question relates to the proper
status of an army demobilized by the Occupying Power, while a portion of those same armed forces continue thestruggle. It is logical to treat its members as civilians until such time as they are recalled in order to be interned; butfrom that moment, it is equally logical to treat them as prisoners of war.”).

132

See GPW COMMENTARY 68 (“During the Second World War, the Occupying Power, for security reasons,frequently arrested demobilized military personnel in occupied territory, especially officers. These men were
granted prisoner-of-war status but usually only after repeated representations by the International Committee of the
Red Cross and the Governments concerned. In the report which the International Committee prepared for theGovernment Experts, it therefore proposed that the entitlement of such persons to prisoner-of-war status should be
explicitly mentioned and the Conference supported this suggestion.”). For further historical background see LEVIE,POWS 66-67, II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 431-32, and the note
appended to In re Siebers, Special Court of Cassation, Feb. 20, 1950, The Hague, in 1950 INTERNATIONAL LAWREPORTS, 399-400.
133

Refer to § 9.11.2 (Parole of POWs).

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also apply to them. 134 So, a demobilized person who disobeyed an internment order andattempted to escape to rejoin his or her armed force would, like a POW, be subject, at most, todisciplinary punishment in respect of the act of escape. 135
Persons belonging, or having belonged, to the armed forces of an occupied State would
only be entitled to receive POW treatment while an international armed conflict continues. 136
For example, this provision would not apply to a situation like the occupation of Japan afterWorld War II because all hostilities had ended. 137
4.6 OTHER MILITIA AND VOLUNTEER CORPS
Under certain conditions, members of militia and volunteer corps that are not part of thearmed forces of a State qualify as combatants and receive the rights, duties, and liabilities ofcombatant status. 138 More specifically, Article 4(A)(2) of the GPW defines prisoners of war toinclude:Members of other militias and members of other volunteer corps, including thoseof organized resistance movements, belonging to a Party to the conflict andoperating in or outside their own territory, even if this territory is occupied,
provided that such militias or volunteer corps, including such organized resistancemovements, fulfil the following conditions:(a) that of being commanded by a person responsible for his subordinates;(b) that of having a fixed distinctive sign recognizable at a distance;(c) that of carrying arms openly;(d) that of conducting their operations in accordance with the laws and customs ofwar. 139

134

Refer to § 9.25 (POW Escapes).

135

Refer to § 9.25.2.2 (Only Disciplinary Punishments in Respect of an Act of Escape).

136

See LEVIE, POWS 67-68 (“It is important to bear in mind that the foregoing provisions explicitly contemplate thatthe government of the unoccupied part of the territory of the State the members of whose armed forces are inquestion, or that State’s allies if it has been completely occupied, are continuing the hostilities. The mere existenceof a government-in-exile after the complete cessation of hostilities would not suffice to make the provisionapplicable. In other words, this provision was not intended to apply to the situation which arises when thecapitulation of a State is followed by the complete termination of armed hostilities.”).
137

See LEVIE, POWS 68 and footnote 261 (“[T]his provision was not intended to apply to the situation which arises
when the capitulation of a State is followed by the complete termination of armed hostilities” and “would, therefore,
not apply in a situation such as that which existed upon the capitulation of Japan in 1945.”).
138

Refer to § 4.4 (Rights, Duties, and Liabilities of Combatants).

139

GPW art. 4(A)(2). See also HAGUE IV REG. art. 1 (“The laws, rights, and duties of war apply not only to armies,
but also to militia and volunteer corps fulfilling the following conditions: -- 1. To be commanded by a person
responsible for his subordinates; 2. To have a fixed distinctive emblem recognizable at a distance; 3. To carry arms
openly; and 4. To conduct their operations in accordance with the laws and customs of war.”); 1899 HAGUE II REG.

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Under these conditions, which are discussed below, members of these armed groups may
operate as combatants in or outside their own territory, even if this territory is occupied. By
contrast, a levée en masse may only be formed on the approach of the enemy to non-occupied
territory. 140
4.6.1 GPW 4A(2) Conditions in General. The conditions set forth in Article 4A(2) of the
GPW were derived from conditions found in the Regulations annexed to the 1899 Hague II andthe 1907 Hague IV. 141 These conditions reflect the attributes common to regular armed forces ofa State. 142 By seeking to ensure that participants in hostilities are sufficiently disciplined, lawabiding, and distinguishable from the civilian population, these conditions help protect thecivilian population from the hardships of war. In addition, these conditions contribute to themilitary effectiveness of the force that satisfies the conditions. 143
These conditions may be understood to reflect a burdens-benefits principle, i.e., thereceipt of certain benefits in the law of war (e.g., privileges of combatant status) requires theassumption of certain obligations. 144
4.6.1.1 GPW 4A(2) Conditions Required on a Group Basis. The armed group, as
a whole, must fulfill these conditions for its members to be entitled to the privileges ofcombatant status. For example, if a member of an armed group met these requirements, but thearmed group did not, that member would not be entitled to the privileges of combatant statusbecause the armed group failed to satisfy the conditions. 145 Similarly, isolated departures from aart. 1 (“The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps, fulfillingthe following conditions: 1. To be commanded by a person responsible for his subordinates; 2. To have a fixed
distinctive emblem recognizable at a distance; 3. To carry arms openly; and 4. To conduct their operations inaccordance with the laws and customs of war.”).
140

Refer to § 4.7.1.3 (Approach of the Enemy to Non-Occupied Territory).

141

See GPW COMMENTARY 49 (“[T]here was unanimous agreement [at the 1949 Diplomatic Conference] that thecategories of persons to whom the Convention is applicable must be defined, in harmony with the Hague
Regulations.”).
142

See GPW COMMENTARY 58 (explaining that an organization satisfying the conditions of GPW art. 4A(2) “musthave the principal characteristics generally found in armed forces throughout the world, particularly in regard to
discipline, hierarchy, responsibility and honour.”).
143

JAMES BROWN SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: THE CONFERENCE OF 1899 549(“General den Beer Poortugael, while fully endorsing the considerations set forth by the PRESIDENT and his
Excellency Mr. BEERNAERT, wishes to add a few words. … But from a military standpoint also it must berecognized that it is to the benefit of the populations to impose on them the conditions contained in Articles 9 and 10[predecessors to GPW art. 4A(2) and 4A(6) and], which they must satisfy if they wish to take up arms. For it is an
undeniable fact that to lead undisciplined and unorganized troops into the fire is to lead them to butchery.”).
144

Refer to § 3.6.3.2 (Benefits-Burdens Principle in Law of War Rules).

145

See G.I.A.D. Draper, The Status of Combatants and the Question of Guerrilla Warfare, 45 BRITISH YEAR BOOKOF INTERNATIONAL LAW 173, 197 (1971) (“the fate of the individual irregular is essentially linked with that of thegroup in which he operates. If the group’s members, as a majority, always meet the legal conditions, the individual
will answer only for his own misdoings, and then as a prisoner of war who had the right to participate in the combat.
If, however, the individual were punctilious in a group in which the majority did not observe the conditions on any
one occasion, he would not acquire combatant status or prisoner-of-war status upon capture, and will answer in law
as an individual who participated in combat with no legal right to do so, i.e. answerable in municipal law or
occupation law, or the law of war.”).

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condition by a member of the armed group (e.g., a failure to comply with the conditions by amember of the armed group that was not directed by the armed group’s leader) would notprevent the armed group from satisfying these conditions.
4.6.1.2 AP I and the GPW 4A(2) Conditions. AP I changed, for its Parties, theconditions under which armed groups that are not part of a State’s armed forces may qualify for
combatant status. 146 The United States has objected to the way these changes relaxed therequirements for obtaining the privileges of combatant status, and did not ratify AP I, in largepart, because of them. 147 A chief concern has been the extent to which these changes would
undermine the protection of the civilian population. 148 The United States has expressed the viewthat it would not be appropriate to treat this provision of AP I as customary international law. 149
4.6.1.3 Application of GPW 4A(2) Conditions to the Armed Forces of a State.
The text of the GPW does not expressly apply the conditions in Article 4A(2) of the GPW to thearmed forces of a State. 150 Thus, under the GPW, members of the armed forces of a State146

See AP I, arts. 1(4), 43, 44.

147

See Ronald Reagan, Letter of Transmittal, Jan. 29, 1987, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II IV(“Another provision [of AP I] would grant combatant status to irregular forces even if they do not satisfy the
traditional requirements to distinguish themselves from the civilian population and otherwise comply with the lawsof war. This would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves.”).
148

See, e.g., John B. Bellinger, III, Lawyers and Wars: A Symposium in Honor of Edward R. Cummings, Sept. 30,
2005, 2005 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 953, 955 (“More problematic from thelawyer’s perspective—or at least this lawyer’s perspective—is how law deals with the kind of situation where awould-be terrorist seeks to cloak his actions in the garb of legitimate combatant. This second factor working against
civilian protection is fueled in part by Article 44 of Additional Protocol I, which suggests that combatants do notneed to distinguish themselves from the civilian population except prior to and during an attack. To be fair, there is
no doubt that a terrorist would not meet the combatancy definition of any instrument of international humanitarianlaw. But the very fact that Additional Protocol I allows greater flexibility in distinction undermines thisfundamental protection. The principle of distinction, among the foundational principles of humanitarian law, exists
for the purposes of civilian protection, to ensure that fighters can identify the combatant from the bystander. Article
44, pressed so strongly for largely political reasons in the 1970s, undermines it. And as a result, one has to lamentthat the process of negotiating international humanitarian law instruments has not always inured to the civilian
population’s benefit.”).
149

Memorandum submitted in United States v. Shakur, 690 F. Supp. 1291 (S.D.N.Y. 1988), III CUMULATIVEDIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-88 3436, 3441 (“Article 44 grants combatantstatus to irregular forces in certain circumstances even if they do not satisfy the traditional requirements todistinguish themselves from the civilian population and otherwise comply with the existing laws of war. This was
not acceptable as a new norm of international law. It clearly does not reflect customary law. … While the U.S. is of
the view that certain provisions in Protocol I reflect customary international law (see, e.g., Treaty Doc. 100-2, supra,at X), the provisions on wars of national liberation and combatant and prisoner-of-war status are definitely not inthis category. … Accordingly, it is the view of the United States that it would be inappropriate to treat theseprovisions as part of customary international law under any circumstances.”).
150

II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 465-66 (“General SLAVIN (Union ofSoviet Socialist Republics) said that according to the first paragraph, sub-paragraph I, of the working text it would
appear that members of the Armed forces would have to fulfil the four traditional requirements mentioned in (a),(b), (c) and (d) in order to obtain prisoner of war status, which was contrary to the Hague Regulations (Article I of
the Regulations concerning the Laws and Customs of War, 18 October 1907). General DEVIJVER (Belgium) pointed
out that the above reproduced working text had been drafted with due regard to the Hague Regulations, and the firstparagraph, sub-paragraph (I), of the working text carefully specified that only members of militia or volunteer corps
should fulfil all four conditions.”). Cf. In re Lewinski (called von Manstein) Case, reprinted in ANNUAL DIGEST

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receive combatant status (including its privileges and liabilities) by virtue of their membership in
the armed forces of a State. 151 Nonetheless, the GPW 4A(2) conditions were intended to reflect
attributes of States’ armed forces. 152 If an armed force of a State systematically failed to
distinguish itself from the civilian population and to conduct its operations in accordance withthe law of war, its members should not expect to receive the privileges afforded lawful
combatants. 153 Similarly, members of the armed forces engaged in spying or sabotage forfeit
their entitlement to the privileges of combatant status if captured while engaged in those
activities. 154
4.6.2 Belonging to a Party to the Conflict. The armed group must belong to a party to theconflict. 155 The requirement of “belonging” to a party establishes that the armed group fulfills a
jus ad bellum requirement of right authority, i.e., it is acting on the authority of a State. 156 Thisrequirement recognizes that members of a non-State armed group are not entitled to theprivileges of combatant status even if that armed group satisfies the other conditions. 157
The State’s authority may be granted by its representatives orally; it need not be granted
in writing, such as through a commission or warrant. In all cases, however, opposing parties to
AND REPORTS OF PUBLIC INTERNATIONAL LAW CASES 509, 515-16 (H. Lauterpacht, ed., 1949) (“Regular soldiers

are so entitled without any of the four requirements set out in Article 1 [of the Hague IV Reg.]: they are requisite inorder to give the Militia and Volunteer Corps the same privileges as the Army.”).
151

Refer to § 4.5 (Armed Forces of a State).

152

Refer to footnote 142 in § 4.6.1 (GPW 4A(2) Conditions in General).

153

See Jay S. Bybee, Assistant Attorney General, Status of Taliban Forces Under Article 4 of the Third Geneva
Convention of 1949, Feb. 7, 2002, 26 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 1, 4 (“We conclude, however,that the four basic conditions that apply to militias must also apply, at a minimum, to members of armed forces who
would be legally entitled to POW status. In other words, an individual cannot be a POW, even if a member of anarmed force, unless forces also are: (a) ‘commanded by a person responsible for his subordinates’; (b) ‘hav[e] afixed distinctive sign recognizable at a distance’; (c) ‘carry[] arms openly’; and (d) ‘conduct[] their operations inaccordance with the laws and customs of war.’ Thus, if the President has the factual basis to determine that Taliban
prisoners are not entitled to POW status under Article 4(A)(2) as members of a militia, he therefore has the grounds
to also find that they are not entitled to POW status as members of an armed force under either Article 4(A)(1) or
Article 4(A)(3).”) (brackets in original); BOTHE, PARTSCH, & SOLF, NEW RULES 234-35 (AP I art. 43, ¶2.1.2) (“It is
generally assumed that these conditions were deemed, by the 1874 Brussels Conference and the 1899 and 1907
Hague Peace Conferences, to be inherent in the regular armed forces of States. Accordingly, it was considered to beunnecessary and redundant to spell them out in the Conventions.”).
154

Refer to § 4.17.5 (Spying and Sabotage – Forfeiture of the Privileges of Combatant Status).

155

GPW art. 4A(2). Cf. LIEBER CODE art. 81 (“Partisans are soldiers armed and wearing the uniform of their army,
but belonging to a corps which acts detached from the main body for the purpose of making inroads into the territory
occupied by the enemy. If captured, they are entitled to all the privileges of the prisoner of war.”).

156

Refer to § 1.11.1.1 (Competent Authority (Right Authority) to Wage War for a Public Purpose).

157

See The Military Prosecutor v. Omar Mahmud Kassem and Others (Israeli Military Court, Ramallah, Apr. 13,
1969), LEVIE, DOCUMENTS ON POWS 776 (explaining that “the most basic condition of the right of combatants to beconsidered upon capture as prisoners of war” is belonging to a belligerent State and that if persons “do not belong to
the Government or State for which they fight, … they do not possess the right to enjoy the status of prisoners of war
upon capture.”). Cf. BOTHE, PARTSCH, & SOLF, NEW RULES 237 (AP I art. 43, ¶2.3.1) (“gangs of terrorists acting on
their own behalf and not linked to an entity subject to international law are excluded” from the definition of “armed
forces of a Party to the Conflict” in AP I similar to how they would be excluded under Article 4A(2) of the GPW).

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the conflict must be able to discern that the armed group enjoys such authority. A State’s formal
acknowledgement that an armed group “belongs” to it is sufficient. On the other hand, the bareclaim by the armed group that it acts on behalf of a State would be insufficient. In some cases,
State support and direction to the armed group may establish that it belongs to the State. 158
4.6.3 Being Commanded by a Person Responsible for His or Her Subordinates. The
armed group must be commanded by a person responsible for his or her subordinates; the armed
group must have a commander with effective authority over the armed group. 159 Thisrequirement helps ensure that the armed group has sufficient discipline and organization to
conduct its operations in accordance with the law of war. 160
The commander may derive his or her authority over the armed group by a regular or
temporary commission from a State. However, a commander may derive his or her commandfrom another position or authority. For example, the armed group may be formed informally andmay have elected the commander as its leader. In practice, a State may provide members of thearmed group with certificates or distinctive badges to show that they are officers, or military
personnel responsible to higher authority, and not private persons acting on individual
initiative. 161
The authority of the commander over his or her subordinates gives rise to acorresponding duty to ensure that the armed group’s members conduct their operations inaccordance with the law of war. 162
4.6.4 Having a Fixed Distinctive Sign Recognizable at a Distance. Members of the158

See The Military Prosecutor v. Omar Mahmud Kassem and Others (Israeli Military Court, Ramallah, Apr. 13,
1969), LEVIE, DOCUMENTS ON POWS 776-77 (“It is natural that, in international armed conflicts, the Government
which previously possessed an occupied area should encourage and take under its wing the irregular forces which
continue fighting within the borders of the country, give them protection and material assistance, and that therefore a‘command relationship’ should exist between such Government and the fighting forces, with the result that acontinuing responsibility exists of the Government and the commanders of its army for those who fight in its nameand on its behalf.”).
159

See GREENSPAN, MODERN LAW OF LAND WARFARE 59 (“The commander must be a person responsible for his
subordinates, that is, his authority over those in his command must be effective.”).

160

See G.I.A.D. Draper, The Status of Combatants and the Question of Guerrilla Warfare, 45 BRITISH YEAR BOOKOF INTERNATIONAL LAW 173, 201 (1971) (explaining that this condition “does probably mean that the commander
must have sufficient authority to ensure that the conditions applicable to the members of the group, necessary forlawful combatancy, are observed.”); 1958 UK MANUAL ¶91 note 1 (explaining that “Field Marshall Rundstedt, C.in-C. of the German armed forces in the West, disclaimed all responsibilities for the atrocities by Waffen S.S. units
on the ground that neither their commanders nor members were subject to military law” and that “he could take no
disciplinary action against them,” and thus German “Waffen S.S.” paramilitary units used during World War II
failed to meet this condition and were not lawful combatants).
161

1958 UK MANUAL ¶91 (“The first condition, ‘to be commanded by a person responsible for his subordinates,’ isfulfilled if the commander of the corps is regularly or temporarily commissioned as an officer or is a person of
position and authority, or if the members are provided with certificates or badges granted by the government of theState to show that they are officers, or soldiers, so that there may be no doubt that they are not partisans acting on
their own responsibility. State recognition, however, is not essential, and an organisation may be formed
spontaneously and elect its own officers.”).

162

Refer to § 18.23.3 (Command Responsibility).

121

armed group should display a fixed distinctive sign or other device recognizable at a distance.
The essence of this requirement is that members of the armed group are distinguishable from thecivilian population. 163 By helping to ensure that members of the armed group can be visually
distinguished from civilians, this requirement helps protect the civilian population from being
erroneously made the object of attack. 164
4.6.4.1 Distinctive Sign. The requirement does not specify a particular sign oremblem that persons must wear. 165 Wearing a military uniform satisfies this condition.
However, a full uniform is not required. 166 The sign suffices if it enables the person to be
distinguished from the civilian population. For example, a helmet or headdress that makes thesilhouette of the individual readily distinguishable from that of a civilian can meet thisrequirement. Similarly, a partial uniform (such as a uniform jacket or trousers), load bearing
vest, armband, or other device could suffice, so long as it served to distinguish the members fromthe civilian population. Formally notifying enemy forces of the distinctive sign is not required,
and the proposal to add such a requirement was not accepted by States. 167 Such notification,
however, may avoid misunderstanding and facilitate claims of POW status for captured membersof the armed group.
163

See GREENSPAN, MODERN LAW OF LAND WARFARE 59 (“Soldiers must be dressed in such a fashion that they areclearly distinguishable from the general population as members of the armed forces.”).

164

See Abraham Sofaer, Legal Adviser, Department of State, The Rationale for the United States Decision, 82 AJIL
784, 786 (1988) (“Inevitably, regular forces would treat civilians more harshly and with less restraint if they
believed that their opponents were free to pose as civilians while retaining their right to act as combatants and their
POW status if captured.”). For example, LEVIE, POWS 50 footnote 187 (“In Vietnam individuals who wereapparently civilian noncombatants (women, children, working farmers, etc.) would approach American servicemen
in seeming innocence and then suddenly toss a hand grenade at them. After a very few such incidents the soldiers
understandably came to distrust all civilians while they were in the field and frequently took definitive action upon
suspicion and without waiting to ascertain the facts. Thus, the original illegal actions taken by the guerrillas
subsequently endangered the members of the civilian population who, as noncombatants, were entitled to beprotected in their status.”) (internal citations omitted).

165

See GPW COMMENTARY 52 (“The drafters of the 1949 Convention, like those of the Hague Conventions,considered it unnecessary to specify the sign which members of the armed forces should have for the purposes ofrecognition. It is the duty of each State to take steps so that members of its armed forces can be immediately
recognized as such and to see to it that they are easily distinguishable from … civilians.”).
166

See, e.g., 1958 UK MANUAL ¶92 (“The second condition, relating to a fixed distinctive sign recognisable at a
distance, would be satisfied by the wearing of a military uniform, but something less than a complete uniform will
suffice.”); 1914 RULES OF LAND WARFARE ¶33 (“The distinctive sign. – This requirement will be satisfied by thewearing of a uniform or even less than a complete uniform.”); SPAIGHT, WAR RIGHTS ON LAND 57 (“The ‘distinctive
emblem’ does not mean a uniform.”). Cf. ICRC AP COMMENTARY 468 (¶1577) (“What constitutes a uniform, andhow can emblems or nationality be distinguished from each other? The Conference in no way intended to define
what constitutes a uniform … . ‘[A]ny customary uniform which clearly distinguished the member wearing it froma non-member should suffice.’ Thus a cap or an armlet, etc. worn in a standard way is actually equivalent to a
uniform.”).
167

See JAMES BROWN SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: III THE CONFERENCE OF
1907 6 (1921) (“The PRESIDENT first takes up the German amendment relating to Article 1, tending to requireprevious notice to the hostile party of fixed distinctive emblems recognizable at a distance. He recalls that thisamendment was rejected by 23 votes to 11, and asks whether it is again advanced by the German delegation. On thenegative answer of Major General VON GUNDELL, he considers it useless to put the question to discussion andpasses to Article 2.”).

122

4.6.4.2 Fixed. The text of the GPW indicates that the sign should be “fixed.”
This requirement has been interpreted to mean that the sign must be such that it cannot be easily
removed and disposed of at the first sign of danger. 168 In practice, however, it would be
important to assess whether members of the armed group are functionally distinguishable fromthe civilian population, even if the distinctive sign that they wear is not permanent and could be
removed. 169
4.6.4.3 Visible at a Distance. “Distance” has not been defined, but may beinterpreted as requiring that the sign be easily distinguishable by the naked eye of ordinary
people at a distance at which the form of the individual can be determined. 170
4.6.5 Carrying Arms Openly. Members of the armed group must carry their arms
openly. 171 This requirement is not satisfied if the armed group makes a practice of carrying only
concealed weapons or of hiding weapons on the approach of enemy forces to avoid identification

168

See LEVIE, POWS 48 (a resistance fighter “must wear some item which will identify him as a combatant, thereby
distinguishing him from the general population, and that item must be such that he cannot remove and dispose of itat the first sign of danger. A handkerchief, or rag, or armband slipped onto or loosely pinned to the sleeve does notmeet this definition. An armband sewed to the sleeve, a logotype of sufficient size displayed on the clothing, aunique type of jacket-these will constitute a fixed and distinctive identifying insignia, effectively separating thecombatant of the moment from the rest of the population.”); GREENSPAN, MODERN LAW OF LAND WARFARE 59(“Where a complete uniform is not worn, and this is sometimes not possible because of the poverty of the country,
sudden emergency or other reasons, the fixed distinctive sign should be something which cannot be instantly taken
off or assumed at will, thus enabling a combatant to appear a peaceful citizen one moment and a soldier the next.
The sign should be part of the clothing or sewn to it.”); 1958 UK MANUAL ¶92 (“Something in the nature of a badge
sewn on the clothing should therefore be worn in addition [to a distinctive helmet]” in order to meet the condition
that the sign must be fixed.).
169

See FRANCIS LIEBER, GUERRILLA PARTIES CONSIDERED WITH REFERENCE TO THE LAWS AND USAGES OF WAR 1617 (1862) (“The Southern prisoners made at Fort Donelson, whom I have seen at the West, had no uniform. They
were indeed dressed very much alike, but it was the uniform dress of the countryman in that region. Yet they weretreated by us as prisoner of war, and well treated too. Nor would it be difficult to adopt something of a badge, easily
put on and off, and to call it a uniform. It makes a great difference, however, whether the absence of the uniform isused for the purpose of concealment or disguise, in order to get by stealth within the lines of the invader, for
destruction or life or property, or for pillage, and whether the parties have no organization at all, and are so smallthat they cannot act otherwise than by stealth.”).
170
See 1958 UK MANUAL ¶92 (“The distance at which the sign should be visible is necessarily vague, but it isreasonable to expect that the silhouette of an irregular combatant in the position of standing against the skyline
should at once be distinguishable from the outline of a peaceful inhabitant, and this by the naked eye of an ordinary
individual at a distance at which the form of the individual can be determined.”); 1914 RULES OF LAND WARFARE¶33 (“The distance that the sign must be visible is left vague and undetermined and the practice is not uniform. Thisrequirement will be satisfied certainly if the sign is ‘easily distinguishable by the naked eye of ordinary people’ at a
distance at which the form of the individual can be determined.”); CHARLES HENRY HYDE, II INTERNATIONAL LAW:CHIEFLY AS INTERPRETED AND APPLIED BY THE UNITED STATES 291 footnote 3 (1922) (quoting the same provisionin the 1917 U.S. Rules of Land Warfare); SPAIGHT, WAR RIGHTS ON LAND 57 (explaining that “[i]f the sign isrecognizable at a distance at which the naked eye can distinguish the form and color of a person’s dress, allreasonable requirements appear to be met” and noting the Japanese view during the Russo-Japanese War that a
Russian free corps that “would wear no uniform but only a distinctive sign on the cap and sleeve” would only beconsidered belligerents “‘if they can be distinguishable by the naked eye from the ordinary people or fulfill theconditions for militias or volunteers by the Hague Réglement’.”).
171

See GPW art. 4A(2)(c); HAGUE IV REG. art. 1(3).

123as fighters. 172
4.6.6 Conducting Their Operations in Accordance With the Laws and Customs of War.
The armed group, as a whole, must conduct its operations in accordance with the law of war.
Evidence that an armed group enforced the law of war (such as by promulgating instructions
regarding law of war requirements and punishing violations by its members) would help
establish that an armed group meets this condition.
4.7 LEVÉE EN MASSE
A levée en masse is a spontaneous uprising of the inhabitants of non-occupied territory
who, on the approach of the enemy in an international armed conflict, take up arms to resist theinvading forces, without having time to form themselves into regular armed units. 173
Participants in a levée en masse are entitled to the privileges of combatant status, provided thatthey carry their arms openly and respect the laws and customs of war. 174
4.7.1 Conditions for a Levée en Masse. The following discussion elaborates upon someof the conditions for a levée en masse.
4.7.1.1 Spontaneous. A levée en masse is a spontaneous uprising in which
members have not had time to form into regular armed units. 175 Thus, unlike other categories of
lawful combatants, persons who join a levée en masse need not wear a distinctive sign nor be
organized under a responsible command. The spontaneity of their response generally precludes
their being able to take such measures.
4.7.1.2 Inhabitants. A levée en masse is understood to reflect the right of
inhabitants to resist approaching enemy forces. Non-inhabitants who travel to a territory to resist
invading forces would not be entitled to participate in a levée en masse. 176

172

1958 UK MANUAL ¶94 (“The third condition is that irregular combatants shall carry arms openly. They may
therefore be refused the rights of the armed forces if it is found that their sole arm is a pistol, hand-grenade, or
dagger concealed about the person, or a sword-stick or similar weapon, or if it is found that they have hidden theirarms on the approach of the enemy.”).
173

GPW art. 4A(6) (defining “prisoners of war, in the sense of the present Convention,” to include “[i]nhabitants ofa non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading
forces, without having had time to form themselves into regular armed units, provided they carry arms openly andrespect the laws and customs of war” who have fallen into the power of the enemy); HAGUE IV REG. art. 2 (“Theinhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take uparms to resist the invading troops without having had time to organize themselves in accordance with Article 1, shallbe regarded as belligerents if they carry arms openly and if they respect the laws and customs of war.”); LIEBER
CODE art. 51 (“If the people of that portion of an invaded country which is not yet occupied by the enemy, or of thewhole country, at the approach of a hostile army, rise, under a duly authorized levy, en masse to resist the invader,they are now treated as public enemies, and, if captured, are prisoners of war.”).
174

For more background, see LEVIE, POWS 64-66.

175

See GREENSPAN, MODERN LAW OF LAND WARFARE 63 (“the essence of a levée en masse is that it isunorganized.”).
176

Compare § 10.3.2.1 (“Find Themselves”).

1244.7.1.3 Approach of the Enemy to Non-Occupied Territory. A levée en masse
may only be formed on the approach of the enemy to non-occupied territory. Once thebelligerent has established an occupation, the local population should comply with the orders of
the occupation force, and a levée en masse may not be formed. 177 Similarly, even before theestablishment of an occupation, inhabitants of areas that have already been invaded may notform a levée en masse. 178
By contrast, members of an organized resistance movement under Article 4A(2) of the
GPW may operate as combatants in or outside their own territory, even if this territory is
occupied. 179
4.7.2 Levée en Masse – Discerning Participants. Should some inhabitants form a levée en
masse to defend an area, it may be justifiable for the invading force to detain all persons ofmilitary age in that area and treat them as POWs. 180 Even if an inhabitant who joined or
participated in the levée en masse lays down arms, if he or she is later captured, he or she may bedetained as a POW. 181 If a person joins a levée en masse, he or she may be held as a POW even
if he or she actually took no part in fighting. 182
If detained, a person believed to have participated in a levée en masse should be treatedas a POW until a determination is otherwise made by a competent tribunal. 183 If a competenttribunal determines that a person did not join the levée en masse but instead committed private
acts of hostility against enemy military forces, 184 the person may be treated as an unprivileged
belligerent. 185

177

Refer to § 11.7.1 (Inhabitants’ Obedience to the Occupying Power).

178

See LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 258 (§81) (“Article 2 [of the HAGUE IV REG.]
distinctly speaks of the approach of the enemy, and thereby sanctions only such a levy en masse as takes place interritory not yet invaded by the enemy. Once the territory is invaded, although the invasion has not yet ripened into
occupation, a levy en masse is no longer legitimate. But, of course, the term territory, as used by Article 2, is notintended to mean the whole extent of the State of a belligerent, but only such parts of it as are not yet invaded. For
this reason, if a town is already invaded, but not a neighbouring town, the inhabitants of the latter may, on theapproach of the enemy, legitimately rise en masse.”).
179

Refer to § 4.6 (Other Militia and Volunteer Corps).

180

1956 FM 27-10 (Change No. 1 1976) ¶65 (“Should some inhabitants of a locality thus take part in its defense, it
might be justifiable to treat all the males of military age as prisoners of war.”); 1958 UK MANUAL ¶100 (“Where themajority of inhabitants of a locality have taken part in its defence in circumstances amounting to a levée en masse, it
is justifiable and probably advisable to treat all the male inhabitants of military age as prisoners of war, leaving it to
the individual concerned to claim that they took no part in the levée en masse or defence of the locality.”).
181

1956 FM 27-10 (Change No. 1 1976) ¶65 (“Even if inhabitants who formed the levee en masse lay down theirarms and return to their normal activities, they may be made prisoners of war.”).
182

1958 UK MANUAL ¶100 (“If it is shown that they joined the levée en masse, but took no part in the defence, they
may be held as prisoners of war.”).

183

Refer to § 4.27.3 (Competent Tribunal to Assess Entitlement to POW Status or Treatment).

184

Refer to § 4.18 (Private Persons Who Engage in Hostilities).

185

Refer to § 4.19 (Rights, Duties, and Liabilities of Unprivileged Belligerents).

1254.8 RIGHTS, DUTIES, AND LIABILITIES OF CIVILIANS
Like combatants, members of the civilian population also have certain rights, duties, andliabilities under the law of war. Civilians may not be made the object of attack. If detained,
civilians are entitled to humane treatment and a variety of additional protections. Civilians lackthe combatant’s privilege, and may be punished, after a fair trial, by an enemy State for engaging
in hostilities against it.
4.8.1 Civilians – Notes on Terminology. Like other terms, “civilian” is used in a variety
of different ways in the law of war. 186
4.8.1.1 “Civilian” Versus “Military”. Sometimes, “civilian” is used to describe
persons who are not military personnel. For example, persons authorized to accompany thearmed forces are often called “civilians” in this sense, even though they are POWs if they fall
into the power of the enemy during international armed conflict. 187
4.8.1.2 “Civilian” Versus “Combatant”. “Civilian” is also often used to refer topersons who are not “combatants.” Since “combatant” is often used in different ways, “civilian,”correspondingly, is also used in different ways. For example, sometimes “civilians” is used torefer to persons who lack the right to participate in hostilities. Other times “civilian” is used torefer to persons who neither have the right to participate in hostilities nor have in fact
participated in hostilities. 188 For example, “civilian” casualty reports generally exclude
insurgents or terrorists, even though some might call such persons “civilians” because they are
not entitled to participate in hostilities.
4.8.1.3 “Civilian” in the GC. The GC does not define “civilian,” although it uses
the word.
The GC uses the term “protected person” to refer to persons protected by theConvention. 190 The GC excludes from the definition of “protected person” those persons whoare protected under the other 1949 Geneva Conventions, e.g., POWs and retained personnel. 191
In some cases, “protected persons” can include a person “detained as a spy or saboteur, or as aperson under definite suspicion of activity hostile to the security of the Occupying Power,”
although such persons are not entitled to all the protections applicable to protected persons. 192
189

186

Refer to § 4.3.2 (Combatant – Notes on Terminology).

187

Refer to § 4.15.3 (Persons Authorized to Accompany the Armed Forces – Detention).

188

See, e.g., GC COMMENTARY 134 (“These rules [for the protection of the wounded and sick] are even moreessential when the wounded or sick person is a civilian, i.e. a person who, by definition, takes no part in the
hostilities.”).

189

See, e.g., GC art. 10 (“The provisions of the present Convention constitute no obstacle to the humanitarian
activities which the International Committee of the Red Cross or any other impartial humanitarian organization may,subject to the consent of the Parties to the conflict concerned, undertake for the protection of civilian persons and fortheir relief.”).
190

Refer to § 10.3 (Protected Person Status).

191

Refer to § 10.3.2.3 (Not Protected by the GWS, GWS-Sea, or the GPW).

192

GC art. 5. Refer to § 10.3.2.4 (Unprivileged Belligerents Not Per Se Excluded From Protected Person Status).

1264.8.1.4 “Civilian” in AP I and AP II. AP I defines “civilian” in opposition to“combatant”; under AP I, anyone who is not a “combatant” is, by definition, a “civilian.” 193 The
United States has objected to AP I’s definition of combatant. 194 AP II uses the term “civilian”
without providing a definition. 195
4.8.1.5 General Usage of “Civilian” in This Manual. This manual generally uses
“civilian” to mean a member of the civilian population, i.e., a person who is neither part of nor
associated with an armed force or group, nor otherwise engaging in hostilities.
4.8.2 Civilians – Conduct of Hostilities. Civilians may not be made the object of attack,unless they take direct part in hostilities. 196 The wounded and sick, as well as the infirm, andexpectant mothers, shall be the object of particular protection and respect. 197 Civilians may bekilled incidentally in military operations; however, the expected incidental harm to civilians may
not be excessive in relation to the anticipated military advantage from an attack, 198 and feasible
precautions must be taken to reduce the risk of harm to civilians during military operations. 199
Civilians who engage in hostilities thereby forfeit the corresponding protections ofcivilian status and may be liable to treatment in one or more respects as unprivileged
belligerents. 200
4.8.3 Civilians – Detention. In general, civilians may be subject to non-violent measuresthat are justified by military necessity, such as searches, or temporary detention. 201 Belligerents
or Occupying Powers may take necessary security measures in relation to civilians, includinginternment or assigned residence for imperative reasons of security. 202
Enemy civilians who are interned during international armed conflict or occupation
generally are classified as “protected persons” under the GC and receive a variety ofprotections. 203 Chapter X addresses in detail the required treatment of enemy civilian internees
193

See AP I art. 50(1) (“A civilian is any person who does not belong to one of the categories of persons referred toin Article 4 A (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt
whether a person is a civilian, that person shall be considered to be a civilian.”).
194

Refer to § 4.6.1.2 (AP I and the GPW 4A(2) Conditions).

195

See, e.g., AP II art. 13 (“1. The civilian population and individual civilians shall enjoy general protection against
the dangers arising from military operations.”).
196

Refer to § 5.8 (Civilians Taking a Direct Part in Hostilities).

197

GC art. 16 (“The wounded and sick, as well as the infirm, and expectant mothers, shall be the object of particular
protection and respect.”).
198

Refer to § 5.12 (Proportionality – Prohibition on Attacks Expected to Cause Excessive Incidental Harm).

199

Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk ofHarm to Protected Persons and Objects); § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected
Persons and Objects by the Party Subject to Attack).
200

Refer to § 4.18 (Private Persons Who Engage in Hostilities).

201

Refer to § 5.2.2.1 (Non-Violent Measures That Are Militarily Necessary).

202

Refer to § 10.6 (Measures of Control and Security).

203

Refer to § 10.3 (Protected Person Status).

127

during international armed conflict and occupation. In all circumstances, detained civilians mustbe treated humanely. 204 Special categories of civilians, such as children, may require additional
consideration during detention. 205
4.8.4 Civilians – Legal Liability Under an Enemy State’s Domestic Law. Unlike
combatants, civilians lack the combatant’s privilege excepting them from the domestic law of theenemy State. Civilians who engage in hostilities may, after a fair trial, be punished by an
opposing State. 206
A State that is an Occupying Power has additional authorities over enemy civilians that
extend beyond the ability to punish their unauthorized participation in hostilities. 207
Note, however, the special cases of persons authorized to accompany the armed forces, 208
members of the merchant marine and civil aircraft, 209 and participants in a levée en masse. 210
4.9 MILITARY MEDICAL AND RELIGIOUS PERSONNEL“Medical personnel exclusively engaged in the search for, or the collection, transport ortreatment of the wounded or sick, or in the prevention of disease, staff exclusively engaged in theadministration of medical units and establishments, as well as chaplains attached to the armed
forces” are treated as a special category under the law of war. 211 This manual generally refers tothem as military medical and religious personnel.
Under certain circumstances, (1) the authorized staff of voluntary aid societies and (2) thestaff of a recognized aid society of a neutral country are treated like military medical andreligious personnel. 212
4.9.1 Types of Military Medical and Religious Personnel. Military medical and religious
personnel include: (1) 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; (2) staff
exclusively engaged in the administration of medical units and establishments; and (3) chaplains

204

Refer to § 10.5 (Humane Treatment and Other Basic Protections for Protected Persons).

205

Refer to § 4.20 (Children).

206

Refer to § 4.18.3 (Private Persons Who Engage in Hostilities – Lack of the Privileges of Combatant Status).

207

Refer to § 11.7 (Authority of the Occupying Power Over Inhabitants).

208

Refer to § 4.15.4 (Persons Authorized to Accompany the Armed Forces – Liability Under Domestic Law for
Participation in Hostilities).
209

Refer to § 4.16 (Crews of Merchant Marine Vessels or Civil Aircraft).

210

Refer to § 4.7 (Levée en Masse).

211

GWS art. 24.

212

Refer to § 4.11 (Authorized Staff of Voluntary Aid Societies); § 4.12 (Staff of a Recognized Aid Society of a
Neutral Country).

128

attached to the armed forces. 213
4.9.1.1 Medical Personnel Exclusively Engaged in Medical Duties. Medical
personnel exclusively engaged in the search for, or the collection, transport, or treatment of thewounded or sick, or in the prevention of disease include military physicians, dentists, nurses,
orderlies, stretcher-bearers, and other persons belonging to the armed forces who give direct careto the wounded and sick. 214
Persons who are exclusively engaged in the prevention of disease also qualify as military
medical personnel. For example, veterinary personnel qualify for military medical status, if they
are exclusively engaged in providing health services for military personnel (e.g., performing
food safety inspections and ensuring that animal illnesses do not spread to humans). However,as a general matter, veterinary personnel would not qualify for military medical status based on
being part of the veterinary service. 215
4.9.1.2 Staff Exclusively Engaged in Support to Medical Units andEstablishments. In addition to persons directly engaged in medical duties, medical personnel
also include staff exclusively engaged in the administration of medical units and establishments.
These persons also receive status as medical personnel provided that they are exclusively
assigned to the Medical Service. 216 For example, Medical Service Corps personnel, andindividuals with a non-medical Military Occupation Specialty permanently assigned to a medical
unit or facility (such as its cooks, clerks and supply personnel, or crews operating permanent
medical aircraft), would qualify for military medical status.
4.9.1.3 Chaplains Attached to the Armed Forces. Chaplains attached to the armed
forces include any cleric, regardless of faith, who is attached to the armed forces of a belligerent
and assigned duties exclusively of a religious or spiritual nature. 217
213

GWS art. 24 (“Medical personnel exclusively engaged in the search for, or the collection, transport or treatmentof the wounded or sick, or in the prevention of disease, staff exclusively engaged in the administration of medical
units and establishments, as well as chaplains attached to the armed forces, shall be respected and protected at all
times.”).
214

GWS COMMENTARY 218 (“Medical personnel proper. – These are the doctors, surgeons, dentists, chemists,
orderlies, nurses, stretcher-bearers, etc., who give direct care to the wounded and sick.”).
215

See GWS COMMENTARY 205 (“[GWS Article 22(4) of the GWS], which dates from 1929, was introduced at thesuggestion of the United States Delegation, which pointed out that veterinary personnel were attached to medical
units in the American Army. A proposal, made by another delegation in 1929, to place the Veterinary Service on
the same footing as the Medical Service was, on the other hand, rejected.”).
216

GWS COMMENTARY 219 (“These are persons who look after the administration of medical units andestablishments, without being directly concerned in the treatment of the wounded and sick. They include office
staff, ambulance drivers, cooks (male or female), cleaners, etc. Like the previous category, they form part of theMedical Service of the armed forces, and accordingly had to be accorded the same immunity as medical personnel
proper. They form an integral part of medical units and establishments, which could not function properly without
their help. They too must be exclusively assigned to the Medical Service.”).

217

GWS art. 24. Cf. BOTHE, PARTSCH, & SOLF, NEW RULES 99 (AP I art. 8, ¶2.6) (“In the new definition [of‘religious personnel’ in AP I], the Christian notion of “chaplain” is only used by way of an example. Religious
personnel are ministers of any religion. What is a ‘minister’ will not always be easy to determine, because thatconcept varies from religion to religion. Again the word ‘exclusively’ adds some precision. A lay preacher, being,1294.9.2 Requirements for Military Medical and Religious Status. To acquire and retain
military medical and religious status, members of the armed forces must (1) belong to a force
whose members qualify for POW status; (2) be designated as exclusive medical or religious
personnel by their armed forces; and (3) serve exclusively in a medical or religious capacity.
Underlying military medical and religious status is the principle that the armed forces
have committed to use these personnel exclusively in a humanitarian role; thus, these personnel
have a “supra-national” and “quasi-neutral character” because their humanitarian duties placethem “above the conflict.” 218
4.9.2.1 Belong to a Force Whose Members Qualify for POW Status. To acquire
military medical and religious status, a person must belong to an armed force whose members
qualify for POW status, i.e., the armed forces of a State, regular armed forces who professallegiance to a government or an authority not recognized by the Detaining Power, or othermilitia and volunteer corps meeting the conditions in the GPW. 219 For example, medical
personnel belonging to non-State armed groups would not be entitled to retained personnel statusunder the GWS, GWS-Sea, and GPW because their members do not qualify for POW status.
4.9.2.2 Designated by Their Armed Forces. To acquire military medical andreligious status, members of the armed forces must be designated as such by their armed forces,usually by being part of the official medical or religious service. 220 A member of the armed
forces cannot designate himself or herself as military medical or religious personnel.
Thus, members of the armed forces do not acquire military medical and religious status
merely by performing medical or religious functions or by having medical or religious training.
For example, a member of a special operations unit might be trained as a medical specialist, but
not be designated as military medical personnel, because that person is expected to perform both
if a ‘minister’, a part-time minister, is not protected as religious personnel. Furthermore, the protection does notextend to every individual minister. The protection granted by the First and Second Conventions only applies tothose attached to the armed forces or to a hospital ship.”).
218

GWS COMMENTARY 244 (“On the one hand, the Conference thought it necessary to affirm the supra-national andquasi-neutral character of personnel whose duties placed them above the conflict.”). See also Vowinckel v. First
Federal Trust Co., 10 F.2d 19, 21 (9th Cir. 1926) (“Red Cross surgeons and nurses, who are engaged exclusively inameliorating the condition of the wounded of the armies in the field, and in alleviating the sufferings of mankind ingeneral, are not enemies of the United States in any proper sense of that term.”); WINTHROP, MILITARY LAW &PRECEDENTS 779 (“Another class who are to be exempt from violence, or seizure as prisoners, are the surgeons,assistants and employees charged with the care and transport of the wounded on the field and the attendance uponthem in field ambulance or hospital. Persons of this class ‘enjoy the rights of neutrality, provided they take noactive part in the operations of war.’”).
219

Refer to § 4.5 (Armed Forces of a State); § 4.5.3 (Regular Armed Forces Who Profess Allegiance to a
Government or an Authority Not Recognized by the Detaining Power); § 4.6 (Other Militia and Volunteer Corps).
220

See GWS COMMENTARY 218 (“Article 24 refers to the official medical personnel and chaplains of the armed
forces.”); id. at 220 (“On the other hand, chaplains, to be accorded immunity, must be attached to the armed forces.
They do not attach themselves. The decision will rest with the competent military authorities and the relationshipmust be an official one. Accordingly, ministers of religion who wish to serve in a non-official capacity, are notcovered by the Convention, and, until such time as they have been regularly appointed, act at their own risk andperil.”). Cf. GPW art. 32 (referring to POWs “who, though not attached to the medical service of their armed forces,
are physicians, surgeons, dentists, nurses or medical orderlies,” as not being entitled to retained personnel status).

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combatant and medical duties. That person, therefore, would not receive the rights, duties, andliabilities related to military medical status. He or she, however, may be treated like military
medical personnel while detained by the enemy by being required to perform medical duties. 221
4.9.2.3 Exclusively Engaged in Humanitarian Duties. In order to establish andmaintain their status as military medical or religious personnel, these personnel must serve
exclusively in a humanitarian capacity. This assignment must generally be permanent. 222
Military physicians or other medical specialist personnel who are not exclusively
engaged in humanitarian duties, such as duties that involve committing acts harmful to theenemy, would not be entitled to military medical status. 223 For example, an Army Medical
Corps or Medical Service Corps officer serving as the commander of a tactical convoy would not
be entitled to military medical status. 224 Similarly, in general, persons who engage in combat
search and rescue missions would not be exclusively engaged in humanitarian duties, sincepreventing the capture of combatants by the adversary constitutes an act harmful to the enemy. 225
However, these individuals may be treated like auxiliary medical personnel or members of thearmed forces who are trained in medical care, but who are not attached to the medical service. 226
The requirement that military medical and religious personnel serve exclusively in ahumanitarian capacity not only requires that they refrain from acts harmful to the enemy, but also
has been interpreted as an affirmative obligation to serve in a humanitarian capacity. For
example, captured military medical personnel who refuse to perform their medical duties to carefor fellow prisoners would not be entitled to retained personnel status. 227

221

Refer to § 4.5.2.2 (Members Trained as Medical Personnel, but Not Attached to the Medical Service); § 4.5.2.3(Members Who Are Ministers of Religion Without Having Officiated as Chaplains to Their Own Forces).
222

See GWS COMMENTARY 219 (“The words ‘exclusively engaged’ indicate that the assignment must be permanent,
which is not the case in Article 25 dealing with auxiliary personnel.”).
223

Refer to § 7.8.3 (Loss of Protection for Medical and Religious Personnel From Being Made the Object of Attack).

224

See W. Hays Parks, Status of Certain Medical Corps and Medical Service Corps Officers under the Geneva
Conventions, reprinted in THE ARMY LAWYER 5 (¶8) (Apr. 1989) (“U.S. Army MSC officers, AMEDD
noncommissioned officers, or other Medical Corps personnel serving in positions that do not meet the ‘exclusively
engaged’ criteria of article 24 are not entitled to its protections but, under article 25, are entitled to protection from
intentional attack during those times in which they are performing medical support functions. This would include
physicians who, while serving as medical company commanders, might be detailed to perform the duties specifiedin paragraph 2b. [¶2b. The medical company commander, a physician, and the executive officer, an MSC officer,
by nature of their positions and grade, may be detailed as convoy march unit commanders. In this position theywould be responsible for medical and nonmedical unit routes of march, convoy control, defense, and repulsing
attacks.]”).
225

Refer to § 7.10.3.1 (Acts Harmful to the Enemy).

226

Refer to § 4.13 (Auxiliary Medical Personnel); § 4.5.2.2 (Members Trained as Medical Personnel, but Not
Attached to the Medical Service).
227

See LEVIE, POWS 74 (“But what of the physician in the power of the enemy who, perhaps for some ideologicalreason, refuses to perform any professional duties and will not provide medical treatment for the sick and wounded
members of the armed forces of his own Power of Origin? This was the procedure followed by most of the North
Vietnamese medical personnel captured in Vietnam. The South Vietnamese responded by treating them as ordinary
prisoners of war. Once again, there was probably no specific legal basis for such action; but certainly, if a member1314.10 RIGHTS, DUTIES, AND LIABILITIES OF MILITARY MEDICAL AND RELIGIOUS PERSONNEL
Although military medical and religious personnel are members of, or attached to, thearmed forces and are in many respects treated like combatants, they are afforded special
privileges so that they may fulfill their humanitarian duties. They must be respected andprotected in all circumstances. In turn, they generally may not commit acts harmful to theenemy. If they fall into the power of the enemy during international armed conflict, they may beretained to care for, or minister to, POWs.
4.10.1 Military Medical and Religious Personnel - Conduct of Hostilities. Military
medical and religious personnel may not be made the object of attack. 228 However, military
medical and religious personnel must accept the risks of incidental harm from military
operations. 229
Military medical and religious personnel generally may not commit acts harmful to theenemy (e.g., resisting lawful capture by the enemy military forces). 230 Military medical andreligious personnel, however, may employ arms in self-defense or in defense of their patients
against unlawful attacks. 231
Military medical and religious personnel who take actions outside their role as military
medical and religious personnel forfeit the corresponding protections of their special status andmay be treated as combatants or auxiliary medical personnel, as appropriate. 232
4.10.2 Military Medical and Religious Personnel - Detention. If military medical andreligious personnel fall into the power of the enemy during international armed conflict, they are
not held as POWs, but instead are held as retained personnel. 233 They should present theiridentity cards to demonstrate their status as retained personnel. 234 They are retained so that they
may fulfill their humanitarian duties to care for, or minister to, POWs. 235
Although they are not held as POWs, military medical and religious personnel receive, ata minimum, the protections of POW status. 236 In addition, retained personnel shall be granted allof the medical profession refuses to employ his professional abilities, even for the benefit of his own countrymen, he
is denying his professional status and, under those circumstances, there is little that a Detaining Power can do except
to remove him from the category of a retained person and to place him in a general prisoner-of-war status (unless hisrecalcitrance is to be rewarded by repatriation).”).
228

Refer to § 7.8.2 (Meaning of “Respect and Protection” of Medical and Religious Personnel).

229

Refer to § 7.8.2.1 (Incidental Harm Not Prohibited).

230

Refer to § 7.8.3 (Loss of Protection for Medical and Religious Personnel From Being Made the Object of Attack).

231

Refer to § 7.10.3.5 (Use of Weapons in Self-Defense or Defense of the Wounded and Sick).

232

Refer to § 4.9.2.3 (Exclusively Engaged in Humanitarian Duties).

233

Refer to § 7.9.1.2 (Medical and Religious Personnel Who May Be Retained).

234

Refer to § 7.9.2 (Use of Identification Card to Help Establish Retained Personnel Status).

235

Refer to § 7.9.3 (Duties of Retained Personnel).

236

Refer to § 7.9.5.1 (POW Treatment as a Minimum).

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facilities necessary to provide for the medical care of, and religious ministration to, POWs. 237
For example, retained personnel may not be compelled to carry out any work other than thatconcerned with their medical or religious duties. 238 Retained personnel shall be authorized tovisit periodically POWs situated in working detachments or in hospitals outside the camp. 239
Retained personnel, through their senior officer in each camp, have the right to deal with thecompetent authorities of the camp on all questions relating to their duties. 240
If they are not needed to care for, or minister to, POWs, and if military requirements
permit, retained personnel should be returned to the forces to which they belong so that they may
continue to care for, or minister to, members of their armed forces. 241 The parties to the conflict
would establish special agreements to establish the procedures for repatriation. 242
4.11 AUTHORIZED STAFF OF VOLUNTARY AID SOCIETIESStates may choose to employ the staff of National Red Cross Societies and that of other
Voluntary Aid Societies, like military medical and religious personnel. If States subject such
staff to military laws and regulations, then such personnel are to be treated like military medical
and religious personnel. 243 States must notify other Parties to the 1949 Geneva Conventions
before actually employing such personnel. 244
4.11.1 American National Red Cross. Under U.S. law, the American National Red Crossis a voluntary aid society authorized to support the U.S. armed forces in time of war. 245
American National Red Cross personnel who support the U.S. armed forces in military
operations in this way are subject to the Uniform Code of Military Justice. 246
237

Refer to § 7.9.5.2 (All Facilities Necessary to Provide for the Medical Care of, and Religious Ministration to,POWs).
238

Refer to § 7.9.5.6 (No Other Compulsory Duties).

239

Refer to § 7.9.5.3 (Visits of POWs Outside the Camp).

240

Refer to § 7.9.5.7 (Senior Medical Officer in the Camp).

241

Refer to § 7.9.4 (Return of Personnel Whose Retention Is Not Indispensable).

242

Refer to § 7.9.4.3 (Special Agreements on the Percentage of Personnel to Be Retained); § 7.9.5.8 (Agreements on
Possible Relief of Retained Personnel).
243

See GWS art. 26 (“The staff of National Red Cross Societies and that of other Voluntary Aid Societies, duly
recognized and authorized by their Governments, who may be employed on the same duties as the personnel namedin Article 24, are placed on the same footing as the personnel named in the said Article, provided that the staff ofsuch societies are subject to military laws and regulations.”).
244

See GWS art. 26 (“Each High Contracting Party shall notify to the other, either in time of peace or at thecommencement of or during hostilities, but in any case before actually employing them, the names of the societies
which it has authorized, under its responsibility, to render assistance to the regular medical service of its armed
forces.”).
245

See 36 U.S.C. § 300102 (the purposes of the American National Red Cross include “to provide volunteer aid intime of war to the sick and wounded of the Armed Forces, in accordance with the spirit and conditions of … thetreaties of Geneva, August 22, 1864, July 27, 1929, and August 12, 1949” and “to perform all the duties devolved ona national society by each nation that has acceded to any of those treaties, conventions, or protocols”).

246

Refer to § 18.19.3.1 (Uniform Code of Military Justice Offenses).

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4.12 STAFF OF A RECOGNIZED AID SOCIETY OF A NEUTRAL COUNTRY
The 1949 Geneva Conventions recognize that neutral States may lend their recognized
aid societies to a party to the conflict by placing those personnel and units under the control ofthat party to the conflict. 247 The neutral Government shall notify this consent to the adversary of
the State that accepts such assistance, and the party to a conflict that accepts such assistance must
notify enemy States before using it. 248 This assistance is not considered as interference in theconflict by the neutral State. 249
The staff of a recognized aid society of a neutral country who have been lent to a party to
the conflict must be furnished with an identity card similar to that provided to retained personnel
before leaving their neutral State. 250 Such personnel who have fallen into the hands of theadverse party may not be detained. 251 Unless otherwise agreed, such personnel shall havepermission to return to their country, or if this is not possible, to the territory of the party to theconflict in whose service they were, as soon as a route for their return is open and militaryconsiderations permit. 252 Pending their release, such personnel shall continue their work under
the direction of the adverse party; they shall preferably be engaged in the care of the wounded
and sick of the party to the conflict in whose service they were. 253 On their departure, they shalltake with them their effects, personal articles and valuables and the instruments, arms, and if
possible, the means of transport belonging to them. 254
Such personnel, while in the power of a party to the conflict, should be treated on thesame basis as corresponding personnel of the armed forces of that party to the conflict; food inparticular must be sufficient as regards quantity, quality, and variety to keep them in a normal
247

GWS art. 27 (“A recognized Society of a neutral country can only lend the assistance of its medical personnel
and units to a Party to the conflict with the previous consent of its own Government and the authorization of theParty to the conflict concerned. That personnel and those units shall be placed under the control of that Party to theconflict.”).
248

GWS art. 27 (“The neutral Government shall notify this consent to the adversary of the State which accepts suchassistance. The Party to the conflict who accepts such assistance is bound to notify the adverse Party thereof before
making any use of it.”).
249

GWS art. 27 (“In no circumstances shall this assistance be considered as interference in the conflict.”).

250

GWS art. 27 (“The members of the personnel named in the first paragraph shall be duly furnished with theidentity cards provided for in Article 40 before leaving the neutral country to which they belong.”); GWS art. 40(giving requirements with regard to the identification of “[t]he personnel designated in Article 24 and in Articles 26
and 27”).

251

GWS art. 32 (“Persons designated in Article 27 who have fallen into the hands of the adverse Party may not be
detained.”).
252

GWS art. 32 (“Unless otherwise agreed, they shall have permission to return to their country, or if this is notpossible, to the territory of the Party to the conflict in whose service they were, as soon as a route for their return is
open and military considerations permit.”).
253

GWS art. 32 (“Pending their release, they shall continue their work under the direction of the adverse Party; theyshall preferably be engaged in the care of the wounded and sick of the Party to the conflict in whose service they
were.”).
254

GWS art. 32 (“On their departure, they shall take with them their effects, personal articles and valuables and the
instruments, arms and if possible the means of transport belonging to them.”).

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state of health. 255 They may also fly their national flag. 256
4.13 AUXILIARY MEDICAL PERSONNEL
Auxiliary medical personnel are members of the armed forces specially trained for
employment, should the need arise, as hospital orderlies, nurses, or auxiliary stretcher-bearers, inthe search for or the collection, transport, or treatment of the wounded and sick in internationalarmed conflict. 257 In general, auxiliary medical personnel are treated like combatants; however,while carrying out medical duties, they must distinguish themselves by wearing a white armlet
bearing the distinctive sign (e.g., the red cross), and they may not be made the object of attack.
4.13.1 Auxiliary Medical Personnel – U.S. Armed Forces. The recent practice of theUnited States has not been to employ persons as auxiliary medical personnel. Rather, the U.S.
armed forces have employed military medical and religious personnel. 258 In addition, the U.S.
armed forces have given members of the armed forces additional training in combat medicine but
have not designated them as military medical personnel or as auxiliary medical personnel. 259
Thus, such personnel have not worn the distinctive emblem while engaging in medical duties,
and they may be made the object of attack by the enemy.
Although the recent practice of the United States has not been to employ persons as
auxiliary medical personnel, the United States may later decide to employ auxiliary medical
personnel, and enemy military forces may employ such personnel. Moreover, certain membersof the medical corps, who do not qualify as military medical personnel because they perform
duties inconsistent with exclusive medical status, may be treated like auxiliary medical
personnel. 260
4.13.2 Acquiring Auxiliary Medical Status. As with military medical and religious
255

GWS art. 32 (“The Parties to the conflict shall secure to this personnel, while in their power, the same food,lodging, allowances and pay as are granted to the corresponding personnel of their armed forces. The food shall inany case be sufficient as regards quantity, quality and variety to keep the said personnel in a normal state ofhealth.”).
256

GWS art. 43 (“The medical units belonging to neutral countries, which may have been authorized to lend theirservices to a belligerent under the conditions laid down in Article 27, shall fly, along with the flag of theConvention, the national flag of that belligerent, wherever the latter makes use of the faculty conferred on him by
Article 42. Subject to orders to the contrary by the responsible military authorities, they may on all occasions fly
their national flag, even if they fall into the hands of the adverse Party.”).
257

GWS art. 25 (“Members of the armed forces specially trained for employment, should the need arise, as hospitalorderlies, nurses or auxiliary stretcher-bearers, in the search for or the collection, transport or treatment of thewounded and sick shall likewise be respected and protected if they are carrying out these duties at the time when
they come into contact with the enemy or fall into his hands.”).
258

Refer to § 4.9 (Military Medical and Religious Personnel).

259

Refer to § 4.5.2.2 (Members Trained as Medical Personnel, but Not Attached to the Medical Service).

260

See, e.g., W. Hays Parks, Status of Certain Medical Corps and Medical Service Corps Officers under the Geneva
Conventions, reprinted in THE ARMY LAWYER 5 (¶8) (Apr. 1989) (“U.S. Army MSC officers, AMEDD
noncommissioned officers, or other Medical Corps personnel serving in positions that do not meet the ‘exclusively
engaged’ criteria of article 24 are not entitled to its protection but, under article 25 are entitled to protection from
intentional attack during those times in which they are performing medical support functions.”).

135

status, members of the armed forces do not acquire auxiliary medical status simply by
performing medical duties. 261 For example, a combatant who treats fellow combatants on thebattlefield does not automatically acquire auxiliary medical status. Similarly, persons do notacquire auxiliary medical status only because they happen to have medical training.
In order to acquire auxiliary medical status, a person must receive appropriate training
and be designated as such by his or her armed forces. 262 Those armed forces must provide
proper identification to such persons, including an armband and a special identity document. 263
4.13.3 Auxiliary Medical Personnel – Conduct of Hostilities. Auxiliary medical
personnel may not be made the object of attack when carrying out their medical duties. 264
Auxiliary medical personnel shall wear, but only while carrying out medical duties, a whitearmlet bearing in its center the distinctive sign in miniature; the armlet shall be issued andstamped by the military authority. 265 In addition, auxiliary medical personnel must abstain fromacts harmful to the enemy while carrying out their medical duties. 266
When the above conditions are not present, auxiliary medical personnel may be made theobject of attack on the same basis as other combatants.
4.13.4 Auxiliary Medical Personnel – Detention. Auxiliary medical personnel are POWs
when detained by the enemy during international armed conflict, but may be required to performtheir medical duties, as needed. 267 Auxiliary medical personnel are not subject to the repatriation
provisions that apply specifically to retained personnel. 268
4.14 PERSONNEL ENGAGED IN DUTIES RELATED TO THE PROTECTION OF CULTURAL PROPERTY
During armed conflict, different classes of persons may be engaged in duties related to261

Refer to § 4.9.2 (Requirements for Military Medical and Religious Status).

262

GWS COMMENTARY 222 (“To be accorded immunity, auxiliary personnel must, as we have said, have received
special medical training beforehand, the nature and duration of which are wisely not defined. If it is necessary to
make good a deficiency in permanent personnel, such training may even take place in wartime; but personnel filling
this temporary role must in any case have had a real training.”).

263

GWS COMMENTARY 223-24 (“To have immunity even on the battlefield, military personnel caring for the
wounded had to form a distinct category—that of medical personnel—and enjoy a separate status, recognizable by adistinctive emblem and an identity card. If recourse was had to such safeguards, it was because militaryconsiderations demanded them. Otherwise the risk of abuse would have been too great. It is not straining theimagination to picture combatants approaching an enemy position, ostensibly to assist the wounded, and thenopening fire in order to seize it: similarly, a fighting unit might suddenly transform itself into a medical unit, inorder to avoid enemy fire.”).
264

Refer to § 7.8.1 (Categories of Persons Who Are Entitled to Respect and Protection as Medical and Religious
Personnel on the Battlefield).
265

Refer to § 7.8.4.2 (Wearing of Armlet With Miniature Distinctive Emblem).

266

Refer to § 7.8.3 (Loss of Protection for Medical and Religious Personnel From Being Made the Object of Attack).

267

See GWS art. 29 (“Members of the personnel designated in Article 25 who have fallen into the hands of theenemy, shall be prisoners of war, but shall be employed on their medical duties in so far as the need arises.”).
268

Refer to § 4.10.2 (Military Medical and Religious Personnel - Detention).

136

the protection of cultural property. These classes of persons may include: specialist personnel in
the armed forces, armed custodians specially empowered to guard cultural property, as well as
persons who are engaged in duties of control in accordance with the Regulations for the
Execution of the 1954 Hague Cultural Property Convention. So far as consistent with theinterests of security, such personnel should be respected and permitted to carry out their duties
for the protection of cultural property.
4.14.1 Personnel Engaged in the Protection of Cultural Property. As far as is consistent
with the interests of security, personnel engaged in the protection of cultural property shall, in
the interests of such property, be respected and, if they fall into the hands of the opposing party,
shall be allowed to continue to carry out duties whenever the cultural property for which they are
responsible has also fallen into the hands of the opposing party. 269 Such personnel are analogous
to military medical and religious personnel who also shall continue to carry out their medical andspiritual duties when they have fallen into the hands of the enemy. 270
No special agreement may be concluded that would diminish the protection afforded by
the 1954 Hague Cultural Property Convention to the personnel engaged in the protection ofcultural property. 271
4.14.1.1 Specialist Personnel in the Armed Forces. States, especially Parties tothe 1954 Hague Cultural Property Convention, may have within their armed forces, services or
specialist personnel whose purpose is to secure respect for cultural property and to cooperatewith the civilian authorities responsible for safeguarding it. 272 The United States has long had
such personnel in its armed forces. 273
For example, during World War II, Allied forces dedicated a specific group of personnel
who were tasked to save as much of the culture of Europe as they could during combat. 274 These
269

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 15 (“As far as is consistent with the interests of security,
personnel engaged in the protection of cultural property shall, in the interests of such property, be respected and, if
they fall into the hands of the opposing Party, shall be allowed to continue to carry out duties whenever the culturalproperty for which they are responsible has also fallen into the hands of the opposing Party.”); ROERICH PACT art. 1(requiring respect and protection for personnel of “[t]he historic monuments, museums, scientific, artistic,
educational and cultural institutions”).

270

Refer to § 7.9.3 (Duties of Retained Personnel).

271

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 24(2) (“No special agreement may be concluded which
would diminish the protection afforded by the present Convention to cultural property and to the personnel engaged
in its protection.”).

272

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 7(2) (“The High Contracting Parties undertake to plan or
establish in peacetime, within their armed forces, services or specialist personnel whose purpose will be to securerespect for cultural property and to co-operate with the civilian authorities responsible for safeguarding it.”).

273

Section-by-Section Analysis of Provisions, 4, Tab 1 to Strobe Talbot, Letter of Submittal, May 12, 1998,
MESSAGE FROM THE PRESIDENT TRANSMITTING THE 1954 HAGUE CULTURAL PROPERTY CONVENTION 5 (“It islongstanding U.S. Army practice to maintain such personnel in their civil affairs reserve force. Marine Corps
reserve civil affairs personnel receive training to perform similar functions if necessary.”).
274

R. M. EDSEL, THE MONUMENTS MEN 2 (2009) (“The Monuments Men were a group of men and women fromthirteen nations, most of whom volunteered for service in the newly created Monuments, Fine Arts, and Archives
section [of the Western Allied military effort], or MFAA. Most of the early volunteers had expertise as museum

137

personnel worked to mitigate combat damage to churches and museums and to locate moveable
works of art that were stolen or missing. 275
4.14.1.2 Armed Custodians Specially Empowered to Protect Cultural Property.
States may use armed custodians who are specially empowered to protect cultural property. The
guarding of cultural property under special protection by armed custodians specially empowered
to do so, however, shall not be deemed to be a use for military purposes that would deprive
cultural property of special protection. 276
4.14.2 Persons Responsible for the Duties of Control in Accordance With the Regulations
for the Execution of the 1954 Hague Cultural Property Convention. A number of persons are
responsible for the duties of control in accordance with the Regulations for the Execution of the1954 Hague Cultural Property Convention. These individuals may include: (1) the DirectorGeneral of the United Nations Educational, Scientific and Cultural Organization (UNESCO); (2)a State-appointed representative for cultural property; (3) delegates of the Protecting Powers; (4)a Commissioner-General for Cultural Property; and (5) inspectors and experts proposed by theCommissioner-General for Cultural Property.
The Commissioners-General for Cultural Property, delegates of the Protecting Powers,
inspectors, and experts shall in no case exceed their mandates. In particular, they shall takeaccount of the security needs of the Party to the 1954 Hague Cultural Property Convention towhich they are accredited and shall in all circumstances act in accordance with the requirementsof the military situation as communicated to them by that State. 277
4.14.2.1 Director-General of UNESCO. Under the 1954 Hague Cultural Property
Convention, the Director-General of the United Nations Educational, Scientific, and Cultural
Organization (UNESCO) plays an important role. For example, among other duties, theDirector-General compiles and periodically revises an international list consisting of all persons
nominated by participating States as qualified to carry out the functions of Commissioner-

directors, curators, art scholars and educators, artists, architects, and archivists. Their job was simple: to save as
much of the culture of Europe as they could during combat. The creation of the MFAA section was a remarkable
experiment. It marked the first time an army fought a war while comprehensively attempting to mitigate cultural
damage, and was performed without adequate transportation, supplies, personnel, or historical precedent. The men
tasked with this mission were, on the surface, the most unlikely of heroes.”).
275

R. M. EDSEL, THE MONUMENTS MEN xiv (2009) (“Their initial responsibility was to mitigate combat damage,primarily to structures – churches, museums, and other important monuments. As the war progressed and theGerman border was breached, their focus shifted to locating moveable works of art and other cultural items stolen orotherwise missing.”).

276

Refer to § 5.18.8.2 (Conditions for the Granting of Special Protection – No Use for Military Purposes).

277

REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8 (“TheCommissioners-General for Cultural Property, delegates of the Protecting Powers, inspectors and experts shall in nocase exceed their mandates. In particular, they shall take account of the security needs of the High Contracting Party
to which they are accredited and shall in all circumstances act in accordance with the requirements of the militarysituation as communicated to them by that High Contracting Party.”).

138

General for Cultural Property. 278
4.14.2.2 State-Appointed Representative for Cultural Property. As soon as any
Party to the 1954 Hague Cultural Property Convention is engaged in an international armed
conflict, that Party shall appoint a representative for cultural property situated in its territory; ifthat Party is in occupation of another territory, it shall appoint a special representative forcultural property situated in that territory. 279
4.14.2.3 Delegates of the Protecting Powers. A Protecting Power shall appointdelegates to perform certain functions in the protection of cultural property. 280 The delegates of
the Protecting Powers shall take note of violations of the 1954 Hague Cultural Property
Convention, investigate, with the approval of the Party to which they are accredited, thecircumstances in which they have occurred, make representations locally to secure theircessation, and, if necessary, notify the Commissioner-General of such violations. They shallkeep the Commissioner-General informed of their activities. 281
4.14.2.4 Commissioner-General for Cultural Property. The Regulations for the
Execution of the 1954 Hague Cultural Property Convention provide for the appointment of aCommissioner-General for cultural property, but always with the approval of the Party to which
he or she will be accredited. 282

278

REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 1 (“On the entry
into force of the Convention, the Director-General of the United Nations Educational, Scientific and Cultural
Organization shall compile an international list consisting of all persons nominated by the High Contracting Parties
as qualified to carry out the functions of Commissioner-General for Cultural Property. On the initiative of the
Director-General of the United Nations Educational, Scientific and Cultural Organization, this list shall be
periodically revised on the basis of requests formulated by the High Contracting Parties.”).
279

REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 2 (“As soon as
any High Contracting Party is engaged in an armed conflict to which Article 18 of the Convention applies: (a) It
shall appoint a representative for cultural property situated in its territory; if it is in occupation of another territory, it
shall appoint a special representative for cultural property situated in that territory;”).
280

REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 2 (“As soon as
any High Contracting Party is engaged in an armed conflict to which Article 18 of the Convention applies: (b) The
Protecting Power acting for each of the Parties in conflict with such High Contracting Party shall appoint delegatesaccredited to the latter in conformity with Article 3 below;”); REGULATIONS FOR THE EXECUTION OF THE 1954
HAGUE CULTURAL PROPERTY CONVENTION art. 3 (“The Protecting Power shall appoint its delegates from among themembers of its diplomatic or consular staff or, with the approval of the Party to which they will be accredited, fromamong other persons.”).
281

REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 5 (“Thedelegates of the Protecting Powers shall take note of violations of the Convention, investigate, with the approval of
the Party to which they are accredited, the circumstances in which they have occurred, make representations locallyto secure their cessation and, if necessary, notify the Commissioner-General of such violations. They shall keep him
informed of their activities.”).
282

REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4 (“1. The
Commissioner-General for Cultural Property shall be chosen from the international list of persons by joint
agreement between the Party to which he will be accredited and the Protecting Powers acting on behalf of the
opposing Parties. 2. Should the Parties fail to reach agreement within three weeks from the beginning of their
discussions on this point, they shall request the President of the International Court of Justice to appoint the139

The Commissioner-General exercises a number of functions, including proposing theappointment of inspectors and experts, ordering an investigation with the agreement of the Party
to which he or she is accredited, and drawing up reports on the application of the Convention. 283
4.14.2.5 Inspectors and Experts Proposed by the Commissioner-General for
Cultural Property. The Commissioner-General for Cultural Property may propose, for theapproval of the Party to which the Commissioner-General is accredited, inspectors of culturalproperty to be charged with specific missions. 284 The Commissioner-General, delegates, andinspectors may have recourse to the services of experts, who will also be proposed for theapproval of the Party to which the Commissioner-General is accredited. 285
In some cases, inspectors may be entrusted with the functions of delegates of theProtecting Powers. 286
4.14.3 Identifying Personnel Engaged in Duties for the Protection of Cultural Property.
Persons responsible for duties of control in accordance with the Regulations for the Execution of
the 1954 Hague Cultural Property Convention, and persons engaged in duties for the protectionof cultural property, are to carry a special identity card bearing the distinctive emblem. 287 In
Commissioner-General, who shall not take up his duties until the Party to which he is accredited has approved his
appointment.”).
283

REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 6 (“1. The
Commissioner-General for Cultural Property shall deal with all matters referred to him in connexion with theapplication of the Convention, in conjunction with the representative of the Party to which he is accredited and withthe delegates concerned. 2. He shall have powers of decision and appointment in the cases specified in the present
Regulations. 3. With the agreement of the Party to which he is accredited, he shall have the right to order aninvestigation or to, conduct it himself. 4. He shall make any representations to the Parties to the conflict or to their
Protecting Powers which he deems useful for the application of the Convention. 5. He shall draw up such reports as
may be necessary on the application of the Convention and communicate them to the Parties concerned and to their
Protecting Powers. He shall send copies to the Director-General of the United Nations Educational, Scientific andCultural Organization, who may make use only of their technical contents. 6. If there is no Protecting Power, theCommissioner-General shall exercise the functions of the Protecting Power as laid down in Articles 21 and 22 of theConvention.”).
284

REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 7(1)(“Whenever the Commissioner-General for Cultural Property considers it necessary, either at the request of thedelegates concerned or after consultation with them, he shall propose, for the approval of the Party to which he isaccredited, an inspector of cultural property to be charged with a specific mission. An inspector shall be responsible
only to the Commissioner-General.”).
285

REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 7(2) (“TheCommissioner-General, delegates and inspectors may have recourse to the services of experts, who will also be
proposed for the approval of the Party mentioned in the preceding paragraph.”).
286

REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 9 (“If a Party to
the conflict does not benefit or ceases to benefit from the activities of a Protecting Power, a neutral State may be
asked to undertake those functions of a Protecting Power which concern the appointment of a CommissionerGeneral for Cultural Property in accordance with the procedure laid down in Article 4 above. The CommissionerGeneral thus appointed shall, if need be, entrust to inspectors the functions of delegates of Protecting Powers as
specified in the present Regulations.”).
287

REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 21(2) (“[Thepersons mentioned in Article 17, paragraph 2 (b) and (c) of the Convention] shall carry a special identity cardbearing the distinctive emblem. This card shall mention at least the surname and first names, the date of birth, the140

addition, such persons may wear an armlet bearing the distinctive emblem issued and stamped by
the competent authorities. 288
Such persons may not, without legitimate reason, be deprived of their identity card or of
the right to wear the armlet. 289 The distinctive emblem displayed on an armlet or special identity
card is to be displayed once (as opposed to repeated three times). 290
4.15 PERSONS AUTHORIZED TO ACCOMPANY THE ARMED FORCES
Under the law of war, persons who are not members of the armed forces, but are
authorized to accompany them, fall into a special category. Although they are often referred toas “civilians” because they are not military personnel, they differ materially from the civilian
population because these persons are authorized – and in some cases, are ordered – toaccompany military forces into a theater of operations to support the force. 291
DoD policies have often addressed the use of non-military personnel to support military
operations. 292

title or rank, and the function of the holder. The card shall bear the photograph of the holder as well as his signatureor his fingerprints, or both. It shall bear the embossed stamp of the competent authorities.”).
288

REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 21(1) (“Thepersons mentioned in Article 17, paragraph 2 (b) and (c) of the Convention may wear an armlet bearing thedistinctive emblem, issued and stamped by the competent authorities.”).
289

REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 21(4) (“The said
persons may not, without legitimate reason, be deprived of their identity card or of the right to wear the armlet.”).
290

Refer to § 5.18.7.2 (Display of the Distinctive Emblem for Cultural Property – Once Versus Three Times).

291

Christian Damson (United States) v. Germany, 7 REPORTS OF THE INTERNATIONAL ARBITRAL AWARDS 184, 198(1925) (concluding that a non-military employee of the U.S. Government whose activities were “directly infurtherance of a military operation” was not a “civilian” for the purposes of the Treaty of Berlin and thus was notentitled to assert a claim under the provisions of the Treaty of Berlin that provided for Germany to compensate fordamages to the civilian population that it caused during World War I); Arthur Ellt Hungerford (United States) v.
Germany, 7 REPORTS OF THE INTERNATIONAL ARBITRAL AWARDS 368, 371 (1926) (“From the foregoing it isapparent that the members of the Y.M.C.A. who served on the western front were, in the language of the
Commander-in-Chief of the A.E.F., ‘militarized and *** under the control and supervision of the American military
authorities’. Or, to use the language of their own spokesman, they were ‘a part of the military machine’. They
rendered military service of a high order. The mere fact that they were not formally inducted into the Army or were
not in the pay of the Government of the United States is immaterial so far as concerns the question here presented.
They had voluntarily segregated themselves from ‘the civilian population’ as that term is used in the Treaty of
Berlin. They had deliberately exposed themselves and their personal belongings to the risks of war which began at
the port of embarkation. The provisions of the Treaty of Berlin obligating Germany to make compensation fordamages to ‘civilians’ or to ‘civilian victims’ or to the ‘civilian population’ were manifestly intended to apply to thepassive victims of warfare, not to those who entered the war zone, subjected themselves to risks to which membersof the civilian population generally were immune, and participated in military activities, whether as combatants or
noncombatants.”).
292

For example, DOD INSTRUCTION 3020.41, Operational Contract Support (OCS) (Dec. 20, 2011); DOD
INSTRUCTION 1100.22, Policies and Procedures for Determining Workforce Mix (Apr. 12, 2010); DOD DIRECTIVE
1404.10, DoD Civilian Expeditionary Workforce (Jan. 23, 2009); DOD INSTRUCTION 1400.32, DoD Civilian Work
Force Contingency and Emergency Planning Guidelines and Procedures (Apr. 24, 1995); DOD DIRECTIVE 1404.10,

141Persons authorized to accompany the armed forces may not be made the object of attack
unless they take direct part in hostilities. They may, however, be detained by enemy militaryforces, and are entitled to POW status if they fall into the power of the enemy during
international armed conflict. They have legal immunity from the enemy’s domestic law forproviding authorized support services to the armed forces.
4.15.1 Persons Authorized to Accompany the Armed Forces – Notes on Terminology. In
the past, the category of persons who “accompany” or “follow” the armed forces has referred tojournalists, private clergy, and sutlers, 293 who traditionally were subject to the jurisdiction of thearmy that they accompanied. 294 These persons, to the extent that they were simply following thearmed forces for their own purposes and not to provide support to military operations, were
subject to detention, not as POWs, but like civilians, only if specifically necessary. 295 On theother hand, non-military persons who were serving the armed forces, such as civilian employeesof the war department, were detained as POWs. 296
Article 4A(4) of the GPW reflects the modern practice and rule. 297 Persons authorized toaccompany the armed forces under Article 4A(4) include employees of the Department ofEmergency-Essential DoD U.S. Civilian Employees (Apr. 10, 1992); DOD INSTRUCTION 3020.37, Continuation of
Essential DoD Contractor Services During Crises (Nov. 6, 1990 Incorporating Change 1, Jan. 26, 1996).
293“Sutler” is an old term for a civilian provisioner to the army, whether in garrison or in the field.

294

For example, Articles of War, art. 2(d), Jun. 4, 1920, 41 STAT. 759, 787 (“All retainers to the camp and all
persons accompanying or servicing with the armies of the United States without the territorial jurisdiction of theUnited States, and in time of war all such retainers and persons accompanying or serving with the armies of theUnited States in the field, both within and without the territorial jurisdiction of the United States, though nototherwise subject to these articles”); American Articles of War of 1775, art. 32, Jun. 30, 1775, reprinted in
WINTHROP, MILITARY LAW & PRECEDENTS 953 (“All suttlers and retailers to a camp, and all persons whatsoever,serving with the continental army in the field, though not in-listed soldiers, are to be subject to the articles, rules, andregulations of the continental army.”).
295

WINTHROP, MILITARY LAW & PRECEDENTS 789 (“Camp-followers, including members of soldiers’ families,
sutlers, contractors, newspaper correspondents, and others allowed with the army but not in the public employment,
should, when taken, be treated similarly as prisoners of war, but should be held only so long as may be necessary.”)(emphasis added).
296

See, e.g., SPAIGHT, WAR RIGHTS ON LAND 304 (“[W]hat persons may be made prisoner of war” includes“persons not commissioned or enlisted, but employed permanently by an army as pay-clerks, telegraph-operators,
engine drivers, or, generally, in any civilian capacity with an army in the field.”); WINTHROP, MILITARY LAW &PRECEDENTS 789 (“The class of persons entitled upon capture to the privileges of prisoners of war comprises
members of the enemy’s armies, embracing both combatants and non-combatants, and the wounded and sick takenon the field and in hospital. It should comprise also civil persons engaged in military duty or in immediateconnection with an army, such as clerks, telegraphists, aeronauts, teamsters, laborers, messengers, guides, scouts,
and men employed on transports and military railways—the class indeed of civilians in the employment and serviceof the government such as are specified in our 63d Article of War as ‘Persons serving with the armies in thefield.’”).
297

See GPW COMMENTARY 64 (“The Conference of Government Experts considered that the text of Article 81 of
the 1929 Convention had become obsolete (in particular the word ‘sutlers’ is no longer appropriate) and should
include a reference to certain other classes of persons who were more or less part of the armed forces and whose
position when captured had given rise to difficulties during the Second World War. The list given is only by way of
indication, however, and the text could therefore cover other categories of persons or services who might be called
upon, in similar conditions, to follow the armed forces during any future conflict.”).

142

Defense, employees of other government agencies sent to support the armed forces, and otherauthorized persons working on government contracts to support the armed forces. DoD practicehas been to permit a broad range of civilians to be authorized to accompany U.S. forces. 298
Persons authorized to accompany the armed forces are often referred to, and treated as,“civilians,” since they are not members of the armed forces. However, as discussed below,
persons authorized to accompany the armed forces are also treated like “combatants” in somerespects.
4.15.2 Persons Authorized to Accompany the Armed Forces – Conduct of Hostilities.
The rules relating to the conduct of hostilities for persons authorized to accompany the armed
forces are similar in some respects to the rules relating to military medical and religious
personnel. For example, persons in both classes: (1) generally may not be made the object of
attack; (2) accept certain risks of incidental harm from enemy military operations; and (3) havethe right of self-defense against unlawful attacks. 299
4.15.2.1 Liability to Being Made the Object of Attack. For the purposes ofdetermining whether they may be made the object of attack, persons authorized to accompany
the armed forces are treated as civilians. They may not be made the object of attack unless theytake direct part in hostilities. 300
4.15.2.2 Employment in Hostilities. The law of war does not prohibit persons
authorized to accompany the armed forces from providing authorized support that constitutes
taking direct part in hostilities. Even if the authorized support that they provide constitutes
taking a direct part in hostilities, such persons retain their entitlement to POW status under
Article 4A(4) of the GPW. 301 Although international law does not prohibit States from using
persons authorized to accompany the armed forces to provide support that constitutes direct
participation in hostilities, commanders should exercise care in placing such personnel insituations in which an attacking enemy may consider their activities to constitute taking a directpart in hostilities, as there may be legal and policy considerations against such use.
Commanders may not employ persons authorized to accompany the armed forces toperform duties and functions traditionally performed by a military person if such action is taken

298

For example, FINAL REPORT ON THE PERSIAN GULF WAR 599 (“In Operations Desert Shield and Desert Storm,
the United States employed civilians both as career civil service employees and indirectly as contractor employees.
Civilians performed as part of the transportation system, at the forward depot level repair and intermediate level
maintenance activities and as weapon systems technical representatives. Civilians worked aboard Navy ships, at Air
Force (USAF) bases, and with virtually every Army unit. Only the Marine Corps (USMC) did not employ
significant numbers of civilians in theater. This civilian expertise was invaluable and contributed directly to thesuccess achieved.”).
299

Refer to § 4.10.1 (Military Medical and Religious Personnel - Conduct of Hostilities).

300

Refer to § 5.8 (Civilians Taking a Direct Part in Hostilities).

301

Refer to § 4.15.4 (Persons Authorized to Accompany the Armed Forces – Liability Under Domestic Law for
Participation in Hostilities).

143

for the purpose of shielding a military objective from attack. 302
4.15.2.3 Increased Risk of Incidental Harm. Persons authorized to accompany thearmed forces should expect that they have an increased risk of death or injury incidental to an
enemy attack because of their deliberate proximity to military operations and military
objectives. 303 For example, civilian members of military aircrews should expect that they might
be incidentally injured in an attack against the military aircraft in which they are working. 304
Similarly, in some cases, the location at which persons authorized to accompany the armed
forces are serving may itself be a military objective. 305 Furthermore, in some cases, an enemy
could reasonably conclude that the mere presence of a person at a location (e.g., a remotemilitary base) indicates that they are a combatant or are directly participating in hostilities, andtherefore could lawfully be made the object of attack.
4.15.2.4 Self-Defense and Arming. Persons authorized to accompany the armed
forces have a right of self-defense against unlawful attacks, such as attacks by bandits. Persons
authorized to accompany the armed forces should not resist capture by enemy military forces
whom they expect to respect their status under the law of war. If persons authorized toaccompany the armed forces make any resistance to enemy military forces, then they may be
regarded as taking a direct part in hostilities, and may be made the object of attack. 306 Their
resistance to capture by enemy military forces whom they expect to respect their status under thelaw of war would be incompatible with the principle that a person may not claim the distinct
rights of both combatants and civilians at the same time. 307
The arming of persons authorized to accompany the armed forces is analogous to thearming of military medical and religious personnel. 308 DoD practice has been to permit
commanders to authorize persons authorized to accompany the armed forces to carry defensive
weapons if necessary. 309
A State may decide to arm persons authorized to accompany the armed forces for
302

Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military
Operations).
303

Refer to § 5.12.3.3 (Civilian Workers Who Support Military Operations In or On Military Objectives).

304

Refer to § 14.4.2 (Civilian Members of Military Aircrew and Other Persons Authorized to Accompany the
Armed Forces).
305

Refer to § 5.6.8.4 (Examples of Military Objectives – Places of Military Significance).

306

Refer to § 5.8.3.1 (Examples of Taking a Direct Part in Hostilities).

307

Refer to § 4.2.2 (No Person May Claim the Distinct Rights Afforded to Both Combatants and Civilians at theSame Time).
308

Refer to § 7.10.3.4 (Arming of Military Medical Units or Facilities).

309

See DOD INSTRUCTION 1100.22, Policy and Procedures for Determining Workforce Mix, E-5 ¶2.d.(5)(a) (Apr.
12, 2010) (“It is not a violation of the law of war for DoD civilians and Defense contractor employees who are
authorized to accompany the armed forces in the field during hostilities to be issued a weapon on the authority of the
Combatant Commander for individual self-defense as addressed in References (n), (o), and (t).”); DOD INSTRUCTION
3020.41, Operational Contract Support (OCS), E-2 ¶4.e (Dec. 20, 2011) (describing policy procedures for issuing
weapons to contingency contractor personnel).

144

personal security and self-defense purposes without incorporating them into the armed forces orotherwise authorizing them to act as a combatant.
4.15.2.5 Wearing of Uniform. The law of war does not prohibit persons
authorized to accompany the armed forces from wearing a uniform, including the uniform ofarmed forces that they accompany. Recent U.S. practice, however, has been to ensure that
persons accompanying U.S. forces wear clothing that distinguishes them from members of thearmed forces in order to prevent confusion about their status. 310
Persons who wear a military uniform accept the risk of being made the object of attack byenemy forces, as the enemy would reasonably believe them to be lawful objects of attack.
However, the mere wearing of a uniform or being authorized by a State to wear a uniform does
not necessarily authorize that person to act as a combatant.
4.15.2.6 Provision of Security Services. Persons authorized to accompany thearmed forces who provide security against criminal elements generally would not be viewed as
taking a direct part in hostilities (and do not forfeit their protection from being made the object of
attack). 311 However, providing such services to defend against enemy armed forces of a State
would be regarded as taking a direct part in hostilities (and would forfeit their protection frombeing made the object of attack). 312
DoD policies have addressed the use of non-military personnel to provide security
services for DoD components. 313 Where there has been a significant risk of attack by enemy
armed forces of a State, DoD practice generally has been to use military personnel to provide
security.
4.15.3 Persons Authorized to Accompany the Armed Forces – Detention. For the
purposes of detention, persons authorized to accompany the armed forces are treated like
combatants. These persons may be detained by the enemy and are entitled to POW status during

310

DOD INSTRUCTION 3020.41, Operational Contract Support (OCS), E-2 ¶3.j (Dec. 20, 2011) (“Defense
contractors or their personnel are responsible for providing their own personal clothing, including casual andworking clothing required by the assignment. Generally, commanders shall not issue military clothing to contractor
personnel or allow the wearing of military or military look-alike uniforms. However, a CCDR [CombatantCommander] or subordinate JFC [Joint Force Commander] deployed forward may authorize contractor personnel towear standard uniform items for operational reasons. Contracts shall require that this authorization be in writing andmaintained in the possession of authorized contractor personnel at all times. When commanders issue any type ofstandard uniform item to contractor personnel, care must be taken to ensure, consistent with force protection
measures, that contractor personnel are distinguishable from military personnel through the use of distinctive
patches, arm bands, nametags, or headgear.”).

311

Compare § 4.23.1 (Police as Civilians).

312

Refer to § 5.8.3.1 (Examples of Taking a Direct Part in Hostilities).

313
For example, DOD INSTRUCTION 3020.50, Private Security Contractors Operating in Contingency Operations,
Humanitarian or Peace Operations, or Other Military Operations or Exercises (Jul. 22, 2009, Incorporating Change
1, Aug. 1, 2011).

145

international armed conflict. 314
When held as POWs, persons authorized to accompany the armed forces are to receive
advance of pay from the Detaining Power, and they should be assigned equivalent ranks to thoseof members of the armed forces for this purpose. 315
Persons who are authorized to accompany the armed forces must be issued an identity
card to confirm their status. 316 Presenting the identification card is not a prerequisite for POW
status, but it helps captured persons establish to enemy forces that they are entitled to POW
status. 317
4.15.4 Persons Authorized to Accompany the Armed Forces – Liability Under Domestic
Law for Participation in Hostilities. Unlike combatants, persons authorized to accompany thearmed forces receive no general license to participate in hostilities. However, international law
contemplates that persons authorized to accompany the armed forces may lawfully support
armed forces in the conduct of hostilities. Such persons should not be liable under an enemy
State’s domestic law for providing authorized support services. 318 For example, they should not
be prosecuted for offenses of aiding the enemy. Persons authorized to accompany the armed
forces may not be punished by an enemy State for authorized support activities or for defending
themselves against unlawful attacks. This protection would not apply with respect to acts by
persons authorized to accompany the armed forces that are prohibited by the law of war.
314

See GPW art. 4(A)(4) (defining “prisoners of war, in the sense of the present Convention,” to include persons
who have fallen into the power of the enemy and “who accompany the armed forces without actually being
members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors,
members of labour units or of services responsible for the welfare of the armed forces, provided that they havereceived authorization from the armed forces which they accompany,”); 1929 GPW art. 81 (“Persons who follow thearmed forces without directly belonging thereto, such as correspondents, newspaper reporters, sutlers, or contractors,
who fall into the hands of the enemy, and whom the latter think fit to detain, shall be entitled to be treated as
prisoners of war, provided they are in possession of an authorization from the military authorities of the armed
forces which they were following.”); HAGUE IV REG. art. 13 (“Individuals who follow an army without directly
belonging to it, such as newspaper correspondents and reporters, sutlers and contractors, who fall into the enemy’s
hands and whom the latter thinks expedient to detain, are entitled to be treated as prisoners of war, provided they arein possession of a certificate from the military authorities of the army which they were accompanying.”); LIEBER
CODE art. 50 (“Moreover, citizens who accompany an army for whatever purpose, such as sutlers, editors, orreporters of journals, or contractors, if captured, may be made prisoners of war, and be detained as such.”).
315

Refer to § 9.18.3 (Advance of Pay).

316

Refer to § 9.4.3 (Issue of Identification Cards to Persons Liable to Become POWs).

317

Refer to § 4.27.1 (Identification Cards Used to Help Clarify Status).

318

See BOTHE, PARTSCH, & SOLF, NEW RULES 304 (AP I art. 51, ¶2.4.2.2) (“As civilians, they have no general rightto take part in hostilities, but some activities of these persons could amount to direct participation if done in the
midst of an ongoing engagement. For example, it is common practice to have civilian technical advisers assist andadvise in the installation and maintenance of sophisticated command and control or target acquisition equipment.
Repair of a target acquisition or missile guidance equipment in the midst of battle would probably be regarded as
direct participation in hostilities. As in the case of a sick bay on a warship, the immunity from attack is academic,
except with respect to individualized attack against the protected person within a military objective. The issue
becomes practically significant only if an attempt is made to subject such a civilian to penal sanction for his
unauthorized participation in hostilities. Under US practice support activities behind the lines of battle is not subject
to penal sanction, although the support activity may be the legitimate object of attack.”).

146

Persons authorized to accompany the armed forces should not engage in unauthorizedparticipation in hostilities. Such activity would be treated like engagement in private acts ofhostility, 319 and such persons would be in the position of unprivileged belligerents in relation to
those activities. 320
There may be additional considerations in determining which prosecution forum isappropriate because persons authorized to accompany the armed forces are not themselves
members of the armed forces. 321
Commanders who use persons authorized to accompany the armed forces could, undercertain circumstances, be prosecuted for war crimes committed by such personnel under theories
of command responsibility or other theories of individual liability. 322
4.16 CREWS OF MERCHANT MARINE VESSELS OR CIVIL AIRCRAFT
Crews of merchant marine vessels or civil aircraft of a belligerent fall into a special
category, and are in many respects treated like persons authorized to accompany the armed
forces. 323 Under certain circumstances, crews of merchant marine vessels or civil aircraft of aneutral that engage in hostilities may be treated like the crews of belligerent vessels or aircraft. 324
4.16.1 Merchant or Civil Crews - Conduct of Hostilities. Merchant vessels or civil
aircraft of a belligerent may be used to support military operations, such as by conveying goods
and military personnel to theaters of active military operations.
Enemy merchant vessels or civil aircraft may be captured. 325 Belligerent merchantvessels or civil aircraft may resist attacks by enemy forces, including by eventually seizing theattacking vessels or aircraft. 326 However, merchant vessels or civil aircraft should not commit
hostile acts in offensive combat operations. 327
319

Refer to § 4.18 (Private Persons Who Engage in Hostilities).

320

Refer to § 4.19 (Rights, Duties, and Liabilities of Unprivileged Belligerents).

321

Refer to § 18.19.4.1 (Limits on Military Jurisdiction Over U.S. Citizens Who Are Not Members of the Armed
Forces).
322

Refer to § 18.23.3 (Command Responsibility); § 18.23 (Theories of Individual Criminal Liability).

323

Refer to § 4.15 (Persons Authorized to Accompany the Armed Forces).

324

Refer to § 15.14 (Acquisition of Enemy Character by Neutral-Flagged Merchant Vessels and Neutral-Marked
Civil Aircraft).
325

Refer to § 13.5 (Enemy Merchant Vessels).

326

LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 266 (§85) (“In a sense, the crews of merchantmen owned
by subjects of a belligerent belong to its armed forces. For those vessels are liable to be seized by enemy men-ofwar, and, if attacked for that purpose, they may defend themselves, may return the attack, and eventually seize theattacking men-of-war. The crews of merchant men become in such cases combatants, and enjoy all the privileges ofthe members of the armed forces.”).
327

LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 266 (§85) (“But, unless attacked, they must not commit
hostilities, and if they do so they are liable to be treated as criminals, just as are private individuals who commit
hostilities in land warfare.”).

147

4.16.2 Merchant or Civil Crews – Detention. Members of the crews of merchant marine
vessels or civil aircraft of a belligerent are entitled to POW status, if they fall into the power ofthe enemy during international armed conflict. 328
The GPW contemplates that certain members of the crews of merchant marine vessels or
civil aircraft of a belligerent may benefit from more favorable treatment under international law;i.e., they would not be detained as POWs. During wartime, enemy merchant seamen havecustomarily been subject to capture and detention. 329 However, the 1907 Hague XI provides thatthe crews of enemy merchant ships that did not take part in hostilities were not to be held as
POWs provided “that they make a formal promise in writing, not to undertake, while hostilities
last, any service connected with the operations of the war.” 330 Although these provisions proved
ineffective during World War I and World War II, 331 the GPW allows for the possibility thatthey might apply. 332
4.17 SPIES, SABOTEURS, AND OTHER PERSONS ENGAGING IN SIMILAR ACTS BEHIND ENEMY LINES
Spying, sabotage, and similar acts behind enemy lines have a dual character under thelaw of war; States are permitted to employ persons who engage in these activities, but these
activities are punishable by the enemy State.
Belligerents may employ spies and saboteurs consistent with the law of war. However,any person (including individuals who would otherwise receive the privileges of lawful
combatants) engaging in spying, sabotage, or similar acts behind enemy lines, is regarded as an
unprivileged belligerent while doing so. These persons forfeit entitlement to the privileges ofcombatant status and may be punished after a fair trial if captured.
328

GPW art. 4A(5) (defining “prisoners of war, in the sense of the present Convention,” to include “[m]embers ofcrews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties
to the conflict, who do not benefit by more favourable treatment under any other provisions of international law”
who have fallen into the power of the enemy).
329

GPW COMMENTARY 65 (“In the past, it was generally recognized that in time of war merchant seamen were
liable to capture.”).
330

See HAGUE XI art. 6 (“The captain, officers, and members of the crew, when nationals of the enemy State, are notmade prisoners of war, on condition that they make a formal promise in writing, not to undertake, while hostilities
last, any service connected with the operations of the war.”); HAGUE XI art. 8 (“The provisions of the three
preceding articles do not apply to ships taking part in the hostilities.”).

331

See LEVIE, POWS 63 (explaining that Articles 5-8 of Hague XI “proved ineffective during World War I” and“[d]uring World War II the provisions of the Eleventh Hague Convention of 1907 were again completely
disregarded, with the result that there was no assurance as to exactly what the status of a captured merchant seaman
would be.”). Hague XI had fewer than 30 Parties at that time, and only technically applied when all the belligerents
to a conflict were also parties to Hague XI. See HAGUE XI art. 9 (“The provisions of the present Convention do not
apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention.”).
Hague XI did not apply during World War II for this reason. See II-A FINAL RECORD OF THE DIPLOMATIC
CONFERENCE OF GENEVA OF 1949 419 (UK representative noting that “[t]he provisions of the Eleventh Hague
Convention were not applied during the last War, owing to the fact that all the belligerent States were not parties toit.”).
332

For further background see II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 238-39,
418-19.

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4.17.1 Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy
Lines – Notes on Terminology. Spying has been given a technical definition in the Hague IV
Regulations. 333 However, as discussed below, certain conduct, most notably sabotage, has beentreated as having the same legal consequences as spying and has even been called spying, eventhough such acts do not meet the definition of spying in the Hague IV Regulations. 334
In some cases, “saboteurs” has been used in a purely factual way to refer to those persons
engaged in damaging or destroying enemy materiel. 335 In other cases, “saboteurs” has been used
as a legal term of art to refer to those persons who are engaged in damaging or destroying enemy
material and who, by definition, would not be entitled to receive the privileges of combatantstatus. 336
4.17.1.1 General Usage of “Spies and Saboteurs” in This Manual. This manual
generally uses the term “spying and sabotage” to refer to that general category of secretive,
hostile activities that, when performed behind enemy lines, deprives that person of entitlement to
the privileges of combatant status. In some places, the phrase “spying, sabotage, and similar actsbehind enemy lines” is used to make more clear that this general category of acts is broader than
only spying and sabotage.
4.17.2 Spies. A person may only be considered a spy when, (1) acting clandestinely or
under false pretenses, (2) in the zone of operations of a belligerent, (3) he or she obtains, or
endeavors to obtain, information, (4) with the intention of communicating it to the hostile
party. 337 During war, any person—military or civilian—whose actions meet all of theseelements may be considered a spy under the law of war.
333

Refer to § 4.17.2 (Spies).

334

Refer to § 4.17.3 (Saboteurs and Other Persons Engaging in Secretive, Hostile Acts Behind Enemy Lines).

335

1958 UK MANUAL ¶331 (“Whether saboteurs, i.e., persons dropped or landed behind the lines of the belligerent
in order to commit acts of destruction and terrorism, are to be treated as spies depends on whether they are caught indisguise or not. If they are disguised in civilian clothing or in the uniform of the army by which they are caught orthat of an ally of that army, they are in the same position as spies. If caught in their own uniform, they are entitledto be treated as prisoners of war.”).

336

II-A FINAL REPORT OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 621 (Norwegian representative
explaining that “[s]aboteurs could not of course claim protection under the Prisoners of War Convention; theyshould nevertheless be protected against criminal treatment and torture.”).

337

HAGUE IV REG. art. 29 (“A person can only be considered a spy when, acting clandestinely or on false pretences,
he obtains or endeavours to obtain information in the zone of operations of a belligerent, with the intention ofcommunicating it to the hostile party.”); LIEBER CODE art. 88 (“A spy is a person who secretly, in disguise or underfalse pretense, seeks information with the intention of communicating it to the enemy.”); id. at art. 83 (“Scouts, or
single soldiers, if disguised in the dress of the country or in the uniform of the army hostile to their own, employedin obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and suffer
death.”); WINTHROP, MILITARY LAW & PRECEDENTS 766-67 (“A spy is a person who, without authority andsecretly, or under a false pretext, contrives to enter within the lines of an army for the purpose of obtaining material
information and communicating it to the enemy; or one who, being by authority within the lines, attempts secretly toaccomplish such purpose.”). Consider AP I art. 46(3) (“A member of the armed forces of a Party to the conflict who
is a resident of territory occupied by an adverse Party and who, on behalf of the Party on which he depends, gathers
or attempts to gather information of military value within that territory shall not be considered as engaging inespionage unless he does so through an act of false pretences or deliberately in a clandestine manner.”).

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The following discussion elaborates upon the elements of spying.
4.17.2.1 Acting Clandestinely or Under False Pretenses. Acting “clandestinely or
under false pretenses” means deliberately concealing or misrepresenting one’s identity andconduct. 338 For example, a member of the armed forces fulfills this element when the person
wears a disguise, such as civilian clothes or the uniform of the enemy, so that the enemy will failto identify the person as a member of the opposing armed force.
Persons who act openly, such as by wearing the uniform of the armed forces to which
they belong, do not meet this element. 339 For example, members of a ground reconnaissanceteam or couriers who wear their normal uniforms would not meet this element. 340 In addition,observers on military reconnaissance aircraft have not been regarded as acting clandestinely or
under false pretenses. 341
4.17.2.2 In the Zone of Operations of a Belligerent. A person must engage in actsof espionage in the zone of operations of a belligerent to be considered a spy. 342 “Zone ofoperations” has been construed broadly to include areas supporting the war effort. 343 However, aperson who engages in surveillance or information gathering from outside territory controlled by
338

See WINTHROP, MILITARY LAW & PRECEDENTS 767 (“The clandestine character of [the spy’s] proceedings andthe deception thus practised constitute the gist or rather aggravation of the offence of the spy.”); 1958 UK MANUAL¶330 (“The principal characteristic of the offence of espionage is disguise and secrecy in action.”). Consider AP I
art. 46(3) (“A member of the armed forces of a Party to the conflict who is a resident of territory occupied by anadverse Party and who, on behalf of the Party on which he depends, gathers or attempts to gather information of
military value within that territory shall not be considered as engaging in espionage unless he does so through an act
of false pretences or deliberately in a clandestine manner.”).
339

See HAGUE IV REG. art. 29 (“[S]oldiers not wearing a disguise who have penetrated into the zone of operations of
the hostile army, for the purpose of obtaining information, are not considered spies.”). Consider AP I art. 46(2) (“Amember of the armed forces of a Party to the conflict who, on behalf of that Party and in territory controlled by anadverse Party, gathers or attempts to gather information shall not be considered as engaging in espionage if, while soacting, he is in the uniform of his armed forces.”).

340

See HAGUE IV REG. art. 29 (“Soldiers and civilians, carrying out their mission openly, intrusted with the deliveryof despatches intended either for their own army or for the enemy’s army” are not considered spies).

341

See HAGUE IV REG. art. 29 (“Persons sent in balloons for the purpose of carrying despatches and, generally, ofmaintaining communications between the different parts of an army or a territory” are not considered spies.);
WINTHROP, MILITARY LAW & PRECEDENTS 768-69 (“[T]he mere observing of the enemy, with a view to gain
intelligence of his movements, does not constitute [spying], for this may be done, and in active service is constantly
done, as a legitimate act of war … . Observing the enemy from a balloon is no more criminal than any other form ofreconnaissance.”).

342

See, e.g., Ex Parte Quirin, 317 U.S. 1, 31 (1942) (characterizing a spy as one “who secretly and without uniform
passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to
the enemy”) (emphasis added).
343

See United States ex rel. Wessels v. McDonald, 265 F. 754, 763-64 (E.D.N.Y. 1920) (“In this great World War
through which we have just passed, the field of operations which existed after the United States entered the war,and, especially in regard to naval operations, brought the port of New York within the field of active operations.”).
Cf. Ex parte Quirin, 317 U.S. 1, 37 (1942) (“The law of war cannot rightly treat those agents of enemy armies whoenter our territory, armed with explosives intended for the destruction of war industries and supplies, as any the lessbelligerent enemies than are agents similarly entering for the purpose of destroying fortified places or our Armed
Forces.”).

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a hostile party would not meet this element, and would not be considered a spy.
4.17.2.3 Obtains, or Endeavors to Obtain, Information. A person may bepunished as a spy regardless of whether that person succeeds in obtaining information or intransmitting it to the enemy. 344 A person, however, must obtain or attempt to obtain information
to be considered a spy.
4.17.2.4 With the Intention of Communicating It to the Hostile Party. A person
must act with the intention of communicating the sought-after information to a hostile party to
the conflict to be considered a spy within the meaning of this rule.
However, a person who seeks to send information to a State not involved in the conflictmay still commit acts punishable by the offended State, and that person’s conduct may fallwithin the broader category of secretive, hostile acts behind enemy lines. 345
4.17.3 Saboteurs and Other Persons Engaging in Secretive, Hostile Acts Behind Enemy
Lines. In addition to spies, other persons acting clandestinely or under false pretenses with ahostile purpose behind enemy lines have also been treated like spies under the law of war.
Like spies, persons engaged in these secretive, hostile activities behind enemy lines havealso been deprived of the privileges of combatant status and often been punished. For example,
saboteurs 346 acting clandestinely or under false pretenses in the zone of operations of abelligerent are treated as spies. 347 However, activities besides sabotage that are helpful to one
side’s war effort that are done behind the other side’s lines have been punishable as well, often
under the rubric of “war treason,” 348 “secretly entering the lines,” 349 or “activities hostile to the344

See LIEBER CODE art. 88 (“The spy is punishable … whether or not he succeed in obtaining the information or inconveying it to the enemy.”); WINTHROP, MILITARY LAW & PRECEDENTS 768 (“The fact that [one] was ‘lurking’ or‘acting’ with intent to obtain material information, to be communicated by himself or another to the enemy, is allthat is required to complete the offence.”).
345

Refer to § 4.17.3 (Saboteurs and Other Persons Engaging in Secretive, Hostile Acts Behind Enemy Lines).

346

2001 CANADIAN MANUAL ¶610(1) (“Saboteurs are persons operating behind the lines of an adverse party tocommit acts of destruction.”); GC COMMENTARY 57 (“Sabotage is harder to define, as no definition of it is given in
any text in international law. The term ‘sabotage’ [in article 5 of the GC] should be understood to mean acts whose
object or effect is to damage or destroy material belonging to the army of occupation or utilized by it.”).
347

2001 CANADIAN MANUAL ¶610(3) (“Civilian saboteurs or saboteurs not in uniform are not so protected [i.e.,
entitled to POW status] and are liable to be treated as spies. Such civilian saboteurs and saboteurs not in uniform
may be tried in accordance with the law of the captor and may face the death penalty. They must not, however, bepunished without a fair trial.”); 1958 UK MANUAL ¶331 (“Whether saboteurs, i.e., persons dropped or landed behindthe lines of the belligerent in order to commit acts of destruction and terrorism, are to be treated as spies depends onwhether they are caught in disguise or not. If they are disguised in civilian clothing or in the uniform of the army bywhich they are caught or that of an ally of that army, they are in the same position as spies. If caught in their own
uniform, they are entitled to be treated as prisoners of war.”).
348

See GREENSPAN, MODERN LAW OF LAND WARFARE 330 (“The characteristic which unites all acts of war treason
is that they are hostile acts committed inside the area controlled by the belligerent against whom the acts are directedby persons who do not possess the status of combatants.”); LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW
575 (§255) (“So-called ‘war treason’ consists of all such acts (except hostilities in arms on the part of the civilian
population, spreading of seditious propaganda by aircraft, and espionage) committed within the lines of a belligerent
as are harmful to him and are intended to favour the enemy.”); LIEBER CODE art. 90 (“A traitor under the law of war,151

security of the State.” 350
These kinds of activities almost necessarily take on the character of spying. 351 In manycases, these actions have been reported as spying. 352 However, the actual purpose of these
activities may not be to gain or transmit intelligence information, but to take other sorts ofactions that would further the war effort.
Thus, a belligerent’s presence on the territory controlled by an opposing State with ahostile purpose while clandestinely or under false pretenses, suffices to make that person liable
to treatment as a spy under the law of war. 353
4.17.4 Spying and Sabotage Permissible Under the Law of War. Under the law of war,or a war-traitor, is a person in a place or district under Martial Law who, unauthorized by the military commander,
gives information of any kind to the enemy, or holds intercourse with him.”).
349

Ex parte Quirin, 317 U.S. 1, 31 (1942) (giving as an example of an unprivileged belligerent “an enemy combatant
who without uniform comes secretly through the lines for the purpose of waging war by destruction of life orproperty”); WINTHROP, MILITARY LAW & PRECEDENTS 786 (“A similar though less aggravated offence against thelaws of war is that of officers, soldiers, or agents, of one belligerent who come secretly within the lines of the other,or within the territory held by his forces, for any unauthorized purpose other than that of the spy, as, for example, forthe purpose of recruiting for their army, obtaining horses or supplies for the same, holding unlawful communication,&c.,--a class of offences of which instances were not unfrequent in the border States during our late civil war.”).
350

GC art. 5 (“Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected
person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person
shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in thefavour of such individual person, be prejudicial to the security of such State.”).
351

1958 UK MANUAL ¶331 note 1 (“A question may arise if a saboteur, being a member of the armed forces, iscaught in civilian clothes worn over or under his military uniform. It may be difficult to accept the defence that theintention was to shed the civilian clothing before the commission of the offence. Sabotage operations behind theenemy lines are frequently carried out by members of the armed forces in uniform who, upon completion of their
mission, make their way to the nearest neutral territory with a view to returning to their own country. If whenengaged in sabotage or subsequent evading action they are discovered in civilian clothing worn over their uniform or
underneath it they run the risk of being treated as spies and not merely as members of the armed forces engaged in asabotage mission. … It may well be that a sabotage mission behind the enemy lines inevitably takes on the added
character of espionage, unless uniform is worn throughout the stay in enemy territory.”).

352

L. Oppenheim, On War Treason, 33 LAW QUARTERLY REVIEW 266 (1917) (“Thus, in 1780, during the American
War of Independence, Major André was convicted and hanged as a spy, although he was not seeking information
but was returning after having negotiated treason with General Arnold; it was a case of war treason. And theJapanese Major Shozo Jakoga and Captain Teisuki Oki, who in the summer of 1904, during the Russo-JapaneseWar, were caught, disguised in Chinese clothes, in the attempt to destroy, with the aid of dynamite, a railway bridgein Manchuria in the rear of the Russian forces—a clear case of war treason—would previous to the Hague
Regulations surely have been executed as spies; in fact the case was reported in the newspapers as one ofespionage.”).
353

Ex parte Quirin, 317 U.S. 1, 38 (1942) (“[E]ach petitioner, in circumstances which gave him the status of an
enemy belligerent, passed our military and naval lines and defenses or went behind those lines, in civilian dress andwith hostile purpose. The offense was complete when with that purpose they entered — or, having so entered, theyremained upon — our territory in time of war without uniform or other appropriate means of identification.”).

152

belligerents may employ spies and saboteurs. 354
Spying and sabotage are not prohibited by any law of war treaty to which the UnitedStates is a Party. For example, spying and sabotage are not prohibited by the 1949 Geneva
Conventions, nor defined as a “grave breach” of those conventions. 355 Similarly, spying andsabotage also have not been listed as war crimes punishable under the statutes of international
criminal tribunals. 356 In addition, law of war treaties that regulate, but do not prohibit, spying,recognize implicitly that belligerents may use this method of warfare. 357
Although spying and sabotage are not prohibited by the law of war, acting clandestinely
or under false pretenses could, in some circumstances, constitute “feigning a protected status,”
one of the elements of perfidy. 358 Persons engaged in these activities and commanders who
employ them should take special care not to kill or wound by resort to perfidy.
4.17.5 Spying and Sabotage – Forfeiture of the Privileges of Combatant Status. Although
the law of war allows belligerents to employ spies, saboteurs, and other persons engaged insecretive hostile activities behind enemy lines, the law of war also permits belligerents to takeadditional measures to defend against these persons.
These individuals, by acting clandestinely or under false pretenses, fail to distinguishthemselves as combatants generally must do. 359 Thus, persons otherwise entitled to privileges ofcombatant status, including POW status, forfeit their entitlement to those privileges while
engaged in spying, sabotage, or other hostile, secretive activities behind enemy lines. 360
Although not explicitly reflected in the GPW, this understanding was the general understandingat the 1949 Diplomatic Conference 361 and is reflected in other treaties, 362 judicial decisions, 363
354

See United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1245 (“Bythe law of war it is lawful to use spies.”); Richard R. Baxter, So-Called ‘Unprivileged Belligerency’: Spies,
Guerillas, and Saboteurs, 28 BRITISH YEAR BOOK OF INTERNATIONAL LAW 323, 333 (1951) (noting that “espionage
is regarded a conventional weapon of war, being neither treacherous nor productive of unnecessary suffering”).
355

Refer to § 18.9.5 (War Crimes – Notes on Terminology).

356

See, e.g., Charter of the International Military Tribunal, art. 6, annexed to Agreement by the Government of theUnited Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, theProvisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics for
the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 UNTS 280,
288; ICTY STATUTE arts. 2-5; ICTR STATUTE arts. 2-4. Consider ROME STATUTE arts. 5-8.
357

See HAGUE IV REG. arts. 24, 29-31 (governing the classification, conduct, and treatment of spies). Consider AP I
art. 46 (same).

358

See § 5.22.1 (Definition of Perfidy).

359

Refer to § 5.14.5 (Carrying Arms Openly and Wearing of Distinctive Emblems by the Armed Forces toDistinguish Themselves From the Civilian Population).
360

Compare § 4.6.1.3 (Application of GPW 4A(2) Conditions to the Armed Forces of a State).

361

II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 509 (noting the UK representative’s
statement that “spies … according to general opinion, should not have the benefits of the privileges accorded by” theGPW); II-A FINAL REPORT OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 621 (Norwegian representative
explaining that “Saboteurs could not of course claim protection under the Prisoners of War Convention; they should
nevertheless be protected against criminal treatment and torture.”).

153

military manuals, 364 and scholarly works. 365
4.17.5.1 Liability of Persons Not Captured While Spying for Previous Acts ofEspionage. Persons who qualify for the privileges of combatant status who engage in spying,
and then return to friendly lines, incur no responsibility or liability for previous acts ofespionage. 366 Persons who have never qualified for the privileges of combatant status would not362

See HAGUE IV REG. art. 31 (impliedly contrasting the position of a spy captured while spying with a “spy who,
after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of war,and incurs no responsibility for his previous acts of espionage.”). Consider AP I art. 46 (1) (“Notwithstanding anyother provision of the Conventions or of this Protocol, any member of the armed forces of a Party to the conflict
who falls into the power of an adverse Party while engaging in espionage shall not have the right to the status of
prisoner of war and may be treated as a spy.”); AP I art. 44(4) (“A combatant who falls into the power of an adverse
Party while failing to meet the requirements set forth in the second sentence of paragraph 3 [certain obligations to
distinguish himself during military engagements] shall forfeit his right to be a prisoner of war, but he shall,nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third
Convention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners of
war by the Third Convention in the case where such a person is tried and punished for any offences he hascommitted.”).
363

See, e.g., Ex parte Quirin, 317 U.S. 1, 31 (1942) (describing spies as “familiar examples of belligerents who are
generally deemed not to be entitled to the status of prisoners of war”); Mohamad Ali and Another v. Public
Prosecutor [1969] A.C. 430 (P.C.) (appeal taken from U.K.), LEVIE, DOCUMENTS ON POWS 766 (“[A]ppellants, if
they were members of the Indonesian armed forces, were not entitled to be treated on capture as prisoners of war
under the Geneva Convention when they had landed to commit sabotage and had been dressed in civilian clothes
both when they had placed the explosives and lit them and when they were arrested.”).
364

2001 CANADIAN MANUAL ¶320(1) (“Generally speaking, persons engaging in espionage may be attacked and if
captured while doing so shall NOT have the right to the status of prisoner of war.”); 1992 GERMAN MANUAL ¶321(“Even if they are members of their armed forces, they do not have the right to the status of prisoner of war.”); 1958
UK MANUAL ¶96 (noting that “regular members of the armed forces who are caught as spies are not entitled to betreated as prisoners of war”); 1956 FM 27-10 (Change No. 1 1976) ¶74 (“Members of the armed forces of a party to
the conflict and members of militias or volunteer corps forming part of such armed forces lose their right to betreated as prisoners of war whenever they deliberately conceal their status in order to pass behind the military linesof the enemy for the purpose of gathering military information or for the purpose of waging war by destruction oflife or property.”).
365

LEVIE, POWS 82-83 (noting that “[e]ven individuals who fall within the categories specifically enumerated in
Article 4 are not entitled to prisoner-of-war status if, at the time of capture by the enemy, they were dressed incivilian clothes and were engaged in an espionage or sabotage mission behind enemy lines”); WINTHROP, MILITARY
LAW & PRECEDENTS 769 (“A spy, under capture, is not treated as a prisoner of war but as an outlaw, and is to betried and punished as such.”).
366

See HAGUE IV REG. art. 31 (“A spy who, after rejoining the army to which he belongs, is subsequently capturedby the enemy, is treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage.”);LIEBER CODE art. 104 (explaining that “[a] successful spy or war-traitor, safely returned to his own army, andafterwards captured as an enemy, is not subject to punishment for his acts as a spy or war-traitor”); Rieger, Dalloz
Hebdomadaire (France, Cour de Cassation, Jul. 29, 1948), summarized in 44 AJIL 422 (1950) (“The court sustained
the acquittal of a German national who, after mobilization as a German army officer, had been in France a spy and a
recruiter of spies, but had not been apprehended until after he had rejoined the German Army and been demobilizedin Germany.”); In re Martin, 45 BARB. 142, 148 (New York County Supreme Court, Dec. 4, 1865) (Court directed
the release of a prisoner who “was not taken in the act of committing the offense charged against him, of being aspy. He had returned within the lines of the confederate forces, or had otherwise escaped, so that he was notarrested till after the confederate armies had surrendered, been disbanded and sent to their homes, with the promisethat they should not be further disturbed if they remained there and engaged in peaceful pursuits.”). Consider AP I
arts. 46(3), 46(4) (referring to persons who “engage in espionage in [the] territory” of a hostile party, and noting thata person “may not be treated as a spy unless he is captured while engaging in espionage”).

154benefit from this rule because they cannot regain a status that they did not receive in the firstplace. 367
4.17.5.2 Cases of Doubt. During international armed conflict, should there be any
doubt as to whether persons suspected of committing a belligerent act and having fallen into thehands of the enemy are entitled to POW status, such persons are entitled to have their statusdetermined by a competent tribunal and should be treated as POWs pending that
determination. 368
4.18 PRIVATE PERSONS WHO ENGAGE IN HOSTILITIESIn general, private persons who engage in hostilities forfeit many of the protections towhich members of the civilian population are entitled, and are liable to treatment in one or more
respects as unprivileged belligerents. 369
4.18.1 Private Persons Who Engage in Hostilities – Notes on Terminology. This sectionrefers to “private persons” who engage in hostilities rather than “civilians” who engage inhostilities for three reasons. First, an emphasis on “private” persons is consistent withlongstanding explanations of the principle of distinction. 370 Second, it may be analyticallyunhelpful to focus on “civilians” because private persons who engage in hostilities are liable totreatment in one or more respects as combatants. Third, non-military personnel belonging to a
State (e.g., persons authorized to accompany the armed forces), who are often called “civilians,”raise a different set of issues that merit special consideration as opposed to the general case of a
private person who decides to engage in hostilities.
For the purpose of applying different law of war rules, different formulations have beenused to describe when a person has engaged in hostilities. Although these phrases often refer tothe same conduct, the context in which each term is applied is important; whether a phrase
includes a particular type of conduct may depend on the particular legal rule in question.
Whether a particular person is liable as a consequence of his or her conduct to treatment as acombatant (e.g., being made the object of attack, internment, or prosecution for acts of
unprivileged belligerency) must be assessed with reference to the specific legal rule at issue
rather than based on the use of a conclusory label, such as “enemy combatant.” 371
367

See LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 424-25 (§161) (“But Article 31 applies only to spies
who belong to the armed forces of the enemy; civilians who act as spies, and are captured later, may be punished.”).
Cf. HAGUE IV REG. art. 31 (referring only to a spy who rejoins “the army to which he belongs” in connection withprotection against subsequent prosecution).
368

Refer to § 4.27.2 (POW Protections for Certain Persons Until Status Has Been Determined).

369

Refer to § 4.19 (Rights, Duties, and Liabilities of Unprivileged Belligerents).

370

See, e.g., LIEBER CODE arts. 22 and 23 (“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 toa hostile country and the hostile country itself, with its men in arms. … 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.”).

371

See Harold Hongju Koh, Legal Adviser, Department of State, Address at the Annual Meeting of the American
Society of International Law: The Obama Administration and International Law, Mar. 25, 2010, 2010 DIGEST OF

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This manual generally uses the phrase “engaging in hostilities” in a broad sense to refer
to any of those actions that could cause a person to forfeit one or more protections under the lawof war. When discussing specific legal rules, on the other hand, this manual uses the particularlanguage of the rule at issue, rather than the phrase “engaging in hostilities.” For example, thismanual generally reserves the use of the phrase “taking a direct part in hostilities” to address therule applicable when a civilian forfeits his or her protection from being made the object of
attack. 372
4.18.2 Private Persons Who Engage in Hostilities – Denial of the Distinct Protections
Afforded Peaceful Civilians. Private persons who engage in hostilities forfeit many of theprotections afforded civilians under the law of war. 373 The principle of military necessity canjustify taking military action (such as detention) to address the threat posed by such persons. 374
The forfeiture of many of the protections of civilian status is also reflected in the principle that aperson may not claim the distinct rights of both combatants and civilians at the same time. 375
4.18.3 Private Persons Who Engage in Hostilities – Lack of the Privileges of CombatantStatus. Private persons who engage in hostilities are not entitled to the privileges of combatantstatus and may be punished, after a fair trial. 376 The law of war does not condone the “farmer by
UNITED STATES PRACTICE IN INTERNATIONAL LAW 749 (“Some commentators have criticized our decision to detain
certain individuals based on their membership in a non-state armed group. But as those of you who follow the
Guantánamo habeas litigation know, we have defended this position based on the AUMF, as informed by the text,
structure, and history of the Geneva Conventions and other sources of the laws of war. Moreover, while the various
judges who have considered these arguments have taken issue with certain points, they have accepted the overall
proposition that individuals who are part of an organized armed group like Al Qaeda can be subject to law-of-war
detention for the duration of the current conflict. In sum, we have based our authority to detain not on conclusory
labels, like ‘enemy combatant,’ but on whether the factual record in the particular case meets the legal standard.”).
372

Refer to § 5.8 (Civilians Taking a Direct Part in Hostilities).

373

See Joint Chiefs of Staff, Joint Pub. 3-60, Joint Doctrine for Targeting, A-2 (Jan. 17, 2002) (“The protection
offered civilians carries a strict obligation on the part of civilians not to participate directly in armed combat,
become combatants, or engage in acts of war. Civilians engaging in fighting or otherwise participating in combat
operations, singularly or as a group, become unlawful combatants and lose their protected civilian status.”); 1992
GERMAN MANUAL ¶517 (“Persons taking a direct part in hostilities are not entitled to claim the rights accorded tocivilians by international humanitarian law (Art. 51 para 3 AP I; Art. 13 para 3 AP II). The same applies if they are
they are definitely suspected of activities hostile to the security of the State (Art. 5 para 1 GC IV).”); 1956 FM 27-10(Change No. 1 1976) ¶60 (“Persons who are not members of the armed forces, as defined in Article 4, GPW, whobear arms or engage in other conduct hostile to the enemy thereby deprive themselves of many of the privileges
attaching to the members of the civilian population (see sec. II of this chapter).”).
374

Refer to § 2.2.1 (Military Necessity as a Justification).

375

Refer to § 4.2.2 (No Person May Claim the Distinct Rights Afforded to Both Combatants and Civilians at theSame Time).
376

See 1958 UK MANUAL ¶88 (If civilian inhabitants “commit or attempt to commit hostile acts, they are liable topunishment, after a proper trial.”); LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 206 (§57) (“According to a
generally recognised customary rule of International Law, hostile acts on the part of private individuals, notorganised as compact movements operating under responsible authority, are not acts of legitimate wafare, and theoffenders may be punished in accordance with International Law.”); United States v. List, et al., XI TRIALS OF WAR
CRIMINALS BEFORE THE NMT 1246 (“[T]he rule is established that a civilian who aids, abets, or participates in thefighting is liable to punishment as a war criminal under the laws of war.”); LIEBER CODE art. 82 (“Men, or squads ofmen, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind,
without commission, without being part and portion of the organized hostile army, and without sharing continuously

156

day and guerilla by night.” 377
The denial of the privileges of combatant status to private persons engaging in hostilities
may be justified on the basis that such persons act inconsistently with the jus ad bellum principleof competent authority, under which the resort to armed force is a prerogative of the State. 378
These individuals lack the principal qualification for entitlement to the privileges of combatantstatus—State authorization. 379 This requirement for State authorization has been traced tomedieval law of arms. 380
Denying private persons who engage in hostilities the privileges of combatant status has
also been viewed as justified on humanitarian grounds. Private persons who engage in hostilities
risk undermining the protections afforded the civilian population. 381 And, private persons whoin the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumptionof the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers -- such men,or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners ofwar”).
377

BOTHE, PARTSCH, & SOLF, NEW RULES 252 (AP I art. 44, ¶2.7.1) (“[T]he pre-existing rule [i.e., prior to AP I]
precluded combatant status and PW status for the persons who engaged in civilian pursuits during the day but fought
as a guerilla by night.”); SENATE EXECUTIVE REPORT 84-9, Geneva Conventions for the Protection of War Victims:
Report of the Committee on Foreign Relations on Executives D, E, F, and G, 82nd Congress, First Session, 5 (Jun.
27, 1955) (“In sum, extension of protection to “partisans” [in the GPW] does not embrace that type of partisan who
performs the role of farmer by day, guerilla by night. Such individuals remain subject to trial and punishment as
unlawful belligerents.”); THEODORE WOOLSEY, INTRODUCTION TO THE STUDY OF INTERNATIONAL LAW 216 (§134)(1897) (explaining that “[g]uerilla parties [i.e., armed groups not called out by public authority], however, do not
enjoy the full benefit of the laws of war” and instead “are apt to fare worse than either regular troops or an unarmed
peasantry” because, inter alia, “they put on and off with ease the character of a soldier”).
378

Refer to § 1.11.1.1 (Competent Authority (Right Authority) to Wage War for a Public Purpose).

379

Refer to § 4.6.2 (Belonging to a Party to the Conflict).

380

G.I.A.D. Draper, The Status of Combatants and the Question of Guerrilla Warfare, 45 BRITISH YEAR BOOK OF
INTERNATIONAL LAW 173, 175 (1971) (“With the break-up of Christendom the medieval law of arms took shape as
the embryonic international law of war. The older idea of knights, men-at-arms and mercenaries ‘avowed’ by aprince changed to that of armed forces in the service of a territorial, secular state. However, many of the ideas andtechnical rules of the jus militare came through into the new international law of war, including the idea of a right or
privilege to fight reserved for military classes and the requirement of a certain ‘openness’ in the manner of fighting.
This ‘openness’ spells out the older idea of a ‘public’ war and the rejection of perfidy as abhorrent to the knightly
classes. Conversely, those who had not the right to fight met short shrift at the hands of those who had. The
marauder and the freebooter acted against, and were outside, ‘faith and the law of nations’ and were early forms of
war criminals.”). See also M. H. KEEN, THE LAWS OF WAR IN THE LATE MIDDLE AGES 246 (1965) (The medieval
law of arms “was a formal and generally accepted law, and its currency helped to establish” the principle that “war,in its proper sense could only be waged by sovereigns.”).
381

GREENSPAN, MODERN LAW OF LAND WARFARE 55 (“If any and every citizen capable of bearing arms is entitled
to use them then the distinction between the soldier and the remainder of the population disappears. The result
could only expose the civilian element, regardless of sex, to massacre. The enemy soldier, unable to distinguish hisfoe, aware that any man, woman, boy, or girl in civilian clothes might produce at any moment a concealed weapon
to be used against him, would inevitably be disposed to treat soldier and civilian alike, indiscriminately.”); Raymund
T. Yingling and Robert W. Ginnane, The Geneva Conventions of 1949, 46 AJIL 393, 402 (1953) (“While theconditions imposed by the convention for treatment as prisoners of war of members of resistance movements would
not have covered many persons acting as ‘partisans’ during World War II, nevertheless, it is believed that suchconditions are the minimum necessary if regular forces are to have any protection against attacks by the civilian
population and if any distinction is to be made between combatants and noncombatants. The farmer by day,157

engage in hostilities generally have not been trained in the law of war and are not subject to thesame disciplinary regime as members of the armed forces. 382 Thus, their participation in
hostilities has been associated with the commission of war crimes. 383
4.18.4 Activities That Constitute “Engaging in Hostilities” by Private Persons. Certain
activities constitute “engaging in hostilities,” i.e., when done by private persons, make themliable to treatment in one or more respects by the enemy State as unprivileged belligerents.
4.18.4.1 Being Part of a Hostile, Non-State Armed Group. Being part of a nonState armed group that is engaged in hostilities against a State is a form of engaging in hostilities
that makes private persons liable to treatment in one or more respects as unprivileged
belligerents by that State. 384 Being part of a non-State armed group may involve formallyjoining the group or simply participating sufficiently in its activities to be deemed part of it.
Whether a person has joined a non-State armed group may be a difficult factual question.
Non-State armed groups may not use formal indicia of membership (e.g., uniforms or identity
cards), or members of these groups may seek to conceal their association with the group. 385 It
may be appropriate to use circumstantial or functional information to assess whether a person ispart of a non-State armed group. 386

assassin by night, type of ‘partisan’ cannot be condoned by international law, whatever other justification
circumstances may give him.”). Refer to § 4.6.4 (Having a Fixed Distinctive Sign Recognizable at a Distance),
footnote 164 and accompanying text.
382

Refer to § 4.6.3 (Being Commanded by a Person Responsible for His or Her Subordinates).

383

See, e.g., CHARLES HENRY HYDE, II INTERNATIONAL LAW: CHIEFLY AS INTERPRETED AND APPLIED BY THE
UNITED STATES 296 (1922) (“The law of nations, apart from the Hague Regulations above noted, denies belligerent
qualifications to guerrilla bands. Such forces wage a warfare which is irregular in point of origin and authority, of
discipline, of purpose and of procedure. They may be constituted at the beck of a single individual; they lack
uniforms; they are given to pillage and destruction; they take few prisoners and are hence disposed to show slightquarter.”); Wharton, Com. Am. Law, § 221, VII MOORE’S DIGEST 175 (“If war were to be waged by private parties,
operating according to the whims of individual leaders, every place that was seized would be sacked and outraged;
and war would be the pretence to satiate private greed and spite.”).
384

See, e.g., In re Guantanamo Bay Litigation, Respondents’ Memorandum Regarding the Government’s Detention
Authority Relative to Detainees Held at Guantanamo Bay, Misc. No. 08-442, 5-6 (D.D.C., Mar. 13, 2009) (“Because
the use of force includes the power of detention, the United States has the authority to detain those who were part ofal-Qaida and Taliban forces. Indeed, long-standing U.S. jurisprudence, as well as law-of-war principles, recognizethat members of enemy forces can be detained even if ‘they have not actually committed or attempted to commit any
act of depredation or entered the theatre or zone of active military operations.’ Accordingly, under the AUMF as
informed by law-of-war principles, it is enough that an individual was part of al-Qaida or Taliban forces, theprincipal organizations that fall within the AUMF’s authorization of force.”) (internal citations omitted); Hamdan v.
Rumsfeld, 548 U.S. 557, 693 (2006) (Thomas, J., dissenting) (“For well over a century it has been established that tounite with banditti, jayhawkers, guerillas, or any other unauthorized marauders is a high offence against the laws ofwar; the offence is complete when the band is organized or joined.”) (internal emphasis and quotations omitted).
385

Refer to § 17.5.1.1 (Increased Difficulty in Identifying Enemy Forces and Other Military Objectives).

386

See, e.g., Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010) (“Although it is clear al Qaeda has, or at least
at one time had, a particular organizational structure, … , the details of its structure are generally unknown, … , but
it is thought to be somewhat amorphous, … . As a result, it is impossible to provide an exhaustive list of criteria for
determining whether an individual is ‘part of’ al Qaeda. That determination must be made on a case-by-case basis

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In addition, non-State armed groups may also rely on individuals who are not members of
the groups, but who are functionally part of those organizations. Their support might beparticularly important to enable the non-State armed group to conduct and sustain its
operations. 387 For example, these individuals might participate sufficiently in the activities of
the group or support its operations substantially in a way that is analogous to the support that
persons authorized to accompany the armed forces provide to the armed forces. 388 These
individuals may be regarded as constructively part of the group, even if they are, in fact, notformal members of the group. 389
4.18.4.2 Other Hostile Acts. In addition to being part of or substantially
supporting a hostile, non-State armed group, other hostile acts can make a person liable totreatment in one or more respects as an unprivileged belligerent under the law of war. For
example, private persons who bear arms against enemy personnel or who attempt to kill or injure
enemy personnel would become liable to being made the object of attack. 390 Performing spying,sabotage, and other hostile activities behind enemy lines would render a person liable toprosecution for such conduct. 391
4.18.5 Private Persons Who Engage in Hostilities and the Law of War. As in the cases of
spying and sabotage, under international law private enemy nationals are not generally regarded
as being prohibited from engaging in hostilities during international armed conflict.
International law does recognize, however, that opposing States may punish such persons. 392
by using a functional rather than a formal approach and by focusing upon the actions of the individual in relation tothe organization.”) (internal citations omitted).
387

Refer to § 17.5.1.2 (Different Support Structures for Non-State Armed Groups).

388

Refer to § 4.15 (Persons Authorized to Accompany the Armed Forces).

389

Hedges v. Obama, No. 12-3644, Reply Brief for Defendant-Appellant, 11-12 (2d Cir. Dec. 20, 2012) (“Moregenerally, ‘substantial support’ encompasses individuals who, even if not considered part of the irregular enemy
forces at issue in the current conflict, bear sufficiently close ties to those forces and provide them support thatwarrants their detention consistent with the law of war. The substantial support concept, as properly informed by
the law of war, would include people whose support for al-Qaeda or the Taliban makes them analogous to those who‘accompany the armed forces without actually being members thereof, such as civilian members of military aircraftcrews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of
the armed forces.’ Such substantial supporters are, in short, ‘more or less part of the armed force’ and subject tolaw-of-war detention for the duration of the conflict.”) (internal citations omitted).
390

Refer to § 5.8 (Civilians Taking a Direct Part in Hostilities).

391

Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).

392

See GREENSPAN, MODERN LAW OF LAND WARFARE 61 (“Guerillas who do not comply with the provisions laid
down [of GPW art. 4(A)(2)] may perform patriotic service for their country (just as espionage agents often do), yetsuch illegitimate hostilities come within the technical heading of war crimes, and their perpetrators must be preparedto take their punishment if captured.”); United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR
CRIMINALS BEFORE THE NMT 1245 (“Just as the spy may act lawfully for his country and at the same time be a war
criminal to the enemy, so guerrillas may render great service to their country and, in the event of success, become
heroes even, still they remain war criminals in the eyes of the enemy and may be treated as such.”); HERBERT C.
FOOKS, PRISONERS OF WAR 40 (1924) (“Individuals who undertake to wage a war in their private capacity are notentitled to the treatment of prisoners of war. The enemy may punish them when captured as war criminals. The
safety of the troops compels the enemy to punish such hostilities as acts of illegitimate warfare, and internationallaw gives the right to do so. Nations do not prohibit its citizens from such acts, however, for they may be mosthelpful to it just as spying is helpful.”).

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Nonetheless, like other forms of unprivileged belligerency, private engagement in hostilities has
been described in some contexts as a “war crime” or as a violation of international law or the lawof war. 393
In discussions of the status of private acts of hostility under international law, the point isoften made that international law does not require States to prevent what they may regard as actsof patriotism and heroism. 394
However, outside the context of patriotic acts of resistance by persons in internationalarmed conflict, private acts of hostility often carry additional sanction under international law.
For example, persons who set off in private military expeditions against a foreign State from aState that has peaceful relations with the foreign State, have been subject to punishment under
the law of nations. 395 Similarly, private acts of hostility, under certain conditions, may be
regarded as piracy. 396 In contemporary parlance, private acts of hostility are often punished as“terrorism.” 397 The unauthorized use of violence by private persons to achieve political ends has
been viewed as contrary to the principles of democratic States. 398 Moreover, States haveobligations under international law to repress terrorism, especially when conducted on theirterritory against other States. 399
4.19 RIGHTS, DUTIES, AND LIABILITIES OF UNPRIVILEGED BELLIGERENTS
Unprivileged belligerents have certain rights, duties, and liabilities. In general,
393

See, e.g., James Speed, Attorney General, Military Commissions, July 1865, 11 OPINIONS OF THE ATTORNEY
GENERAL 297, 314 (1869) (“A bushwhacker, a jayhawker, a bandit, a war rebel, an assassin, being public enemies,
may be tried, condemned, and executed as offenders against the laws of war.”).
394

Richard R. Baxter, So-Called ‘Unprivileged Belligerency’: Spies, Guerillas, and Saboteurs, 28 BRITISH YEAR
BOOK OF INTERNATIONAL LAW 323, 342 (1951) (“In both occupied and unoccupied areas, resistance activities,
guerrilla warfare, and sabotage by private persons may be expected to continue on at least as widespread a basis in
future warfare as they have in the past. More often than not, patriotism or some sort of political allegiance lies at theroot of such activities. Consequently the law of nations has not ventured to require of states that they prevent the
belligerent activities of their citizenry or that they refrain from the use of secret agents or that these activities upon
the part of their military forces or civilian population be punished.”).
395

Refer to § 15.1.5 (Domestic Neutrality Laws).

396

Refer to § 13.3.3.1 (Entitlement of Vessels to Conduct Attacks During Non-International Armed Conflict).

397

See, e.g., R. v. Khawaja, (Supreme Court of Canada, Dec. 14, 2012) (upholding the terrorism conviction of adefendant who provided support to terrorist groups in Afghanistan and rejecting his argument that his support for
terrorist groups could not be punished because they were part of an armed conflict governed by international law).
398

Public Prosecutor v. Folkerts, (The Netherlands, District Court of Utrecht, Dec. 20, 1977), reprinted in 74
INTERNATIONAL LAW REPORTS 695, 698 (1987) (“It is totally unacceptable in democratic countries such as thosejust mentioned [the United States and the Federal Republic of Germany], and also in the Netherlands, for individuals
who disagree with their country’s policy, for that reason to resort to acts of violence such as those which took place
here. Such acts attack the most fundamental principles of the constitutional State.”).
399

See, e.g., U.N. SECURITY COUNCIL RESOLUTION 1373, U.N. Doc. S/RES/1373 (2001) (deciding that all Statesshall, inter alia, “[e]nsure that any person who participates in the financing, planning, preparation or perpetration ofterrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measuresagainst them, such terrorist acts are established as serious criminal offences in domestic laws and regulations andthat the punishment duly reflects the seriousness of such terrorist acts;”).

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unprivileged belligerents lack the distinct privileges afforded to combatants and civilians, and are
subject to the liabilities of both classes. Unprivileged belligerents generally may be made theobject of attack by enemy combatants. They, however, must be afforded fundamental guarantees
of humane treatment if hors de combat. Unprivileged belligerents may be punished by enemy
States for their engagement in hostilities if they are convicted after a fair trial.
4.19.1 Rules Applicable to the Treatment of Unprivileged Belligerents. Althoughunprivileged belligerents have not been recognized and protected in treaty law to the same extent
as peaceful civilians and lawful combatants, 400 basic guarantees of humane treatment incustomary international law (i.e., elementary considerations of humanity) protect unprivileged
belligerents. 401 Moreover, some treaty protections apply to certain unprivileged belligerents. 402
In some cases, U.S. practice has, as a matter of domestic law or policy, afforded
unprivileged belligerents more favorable treatment than they would be entitled to receive underinternational law. 403 Nonetheless, U.S. practice has also recognized that unprivileged
belligerents should not be afforded the distinct privileges afforded lawful combatants and theprotections afforded peaceful civilians under the law of war. 404
4.19.2 Unprivileged Belligerents – Conduct of Hostilities. Although unprivileged
belligerents lack the right to engage in hostilities, international law nevertheless requires thatthey observe the same duties as lawful combatants during their conduct of hostilities. 405
In addition, unprivileged belligerents are generally subject to the same liabilities to which
combatants are subject in the conduct of hostilities; i.e., they may be made the object of attack byenemy combatants. Unprivileged belligerents placed hors de combat, however, may not be madethe object of attack, and must be treated humanely.
4.19.3 Unprivileged Belligerents – Detention. Unprivileged belligerents are liable tocapture and detention, like lawful combatants.
4.19.3.1 Humane Treatment. Although unprivileged belligerents are not entitledto the privileges of POW status, unprivileged belligerents, like all other detained persons, mustbe treated humanely. In particular, they, like all other detainees, must receive, at a minimum, the400

Refer to § 4.3.1 (“Unprivileged Belligerents” as a Category in Treaty Law).

401

Refer to § 3.1.1.2 (Applying Law of War Standards as Reflecting Minimum Legal Standards).

402

See, e.g., GPW art. 3; GC art. 5.

403

See, e.g., Boumediene v. Bush, 553 U.S. 723 (2008) (affording the constitutional privilege of habeas corpus toaliens detained as unprivileged belligerents at Guantanamo); U.S. MILITARY ASSISTANCE COMMAND VIETNAM
DIRECTIVE 381-46, Military Intelligence: Combined Screening of Detainees Annex A ¶4.a.(2)-(3) (Dec. 27, 1967),
reprinted in 62 AJIL 766-67 (classifying as POWs members of certain categories of guerilla or insurgent units
provided that they were not engaged in acts of terrorism, sabotage, or spying while captured).
404

Refer to, e.g., § 4.6.1.2 (AP I and the GPW 4A(2) Conditions); FRANCIS LIEBER, GUERRILLA PARTIESCONSIDERED WITH REFERENCE TO THE LAWS AND USAGES OF WAR 22 (1862) (“no army, no society, engaged in war,
any more than a society at peace, can allow unpunished assassination, robbery, and devastation, without the deepest
injury to itself and disastrous consequences, which might change the very issue of the war.”).
405

Refer to § 4.4.1 (Combatants – Conduct of Hostilities).

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fundamental guarantees of humane treatment described in Common Article 3 of the 1949
Geneva Conventions. 406 In addition, the United States has explicitly supported, out of a sense oflegal obligation, the fundamental guarantees reflected in Article 75 of AP I as minimum
standards for the humane treatment of all persons detained during international armed conflict. 407
4.19.3.2 Cases of Doubt. During international armed conflict, in cases of doubt as
to whether a person held as an unprivileged belligerent is, in fact, a POW or entitled to POW
treatment, that person should enjoy POW protections until their status is assessed by a competenttribunal. 408
4.19.3.3 Necessary Security Measures. A State may take necessary security
measures with regard to unprivileged belligerents.
Since they have engaged in hostilities, unprivileged belligerents, or persons suspected ofbeing unprivileged belligerents, may be denied certain privileges to which they might otherwise
be entitled under the law of war. For example, the rights of unprivileged belligerents who areentitled to “protected person” status under the GC would be subject to derogation for security
reasons. 409 However, unprivileged belligerents who are protected by the GC should be afforded
its full protections when feasible. 410
4.19.3.4 Duration of Detention. Unprivileged belligerents who are detained inorder to prevent their further participation in hostilities generally must be released when
hostilities have ended, unless there is another legal basis for their detention. 411 DoD practice has
been to review periodically the detention of all persons not afforded POW status or treatment. 412
4.19.4 Unprivileged Belligerents – Liability for Participation in Hostilities. Althoughinternational law affords lawful combatants a privilege or immunity from prosecution, 413
unprivileged belligerents lack such protection. 414 A State may punish unprivileged enemy
belligerents, 415 subject to applicable requirements, such as a fair trial. 416

406

Refer to § 8.1.4.1 (Common Article 3 of the 1949 Geneva Conventions).

407

Refer to § 8.1.4.2 (Article 75 of AP I and Relevant AP II Provisions).

408

Refer to § 4.27.2 (POW Protections for Certain Persons Until Status Has Been Determined).

409

Refer to § 10.4 (Derogation for Security Reasons).

410

Refer to § 10.4.4 (Limits on Derogation).

411

Refer to § 8.14.3.1 (Participants in Hostilities or Persons Belonging to Armed Groups That Are Engaged in
Hostilities).
412

Refer to § 8.14.2 (Review of Continued Detention for Security Reasons).

413

Refer to § 4.4.3 (Combatants - Legal Immunity From a Foreign State’s Domestic Law).

414

Refer to § 4.17.5 (Spying and Sabotage – Forfeiture of the Privileges of Combatant Status); § 4.18.3 (Private
Persons Who Engage in Hostilities – Lack of the Privileges of Combatant Status).
415

See, e.g., 1956 FM 27-10 (Change No. 1 1976) ¶73 (“The foregoing provisions [of article 5 of the GC] impliedly
recognize the power of a Party to the conflict to impose the death penalty and lesser punishments on spies,
saboteurs, and other persons not entitled to be treated as prisoners of war, except to the extent that that power has

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4.19.4.1 Unprivileged Belligerency and the Law of War – Notes on Terminology.
In contemporary parlance, spying and other forms of unprivileged belligerency generally havenot been referred to as “violations of the law of war” or “war crimes.” 417 For example, spying ispermissible under the law of war in the sense that belligerents are not prohibited from employing
spies; these activities are punishable but not prohibited under international law. 418
However, in some cases, offenses related to unprivileged belligerency have beencharacterized as violations of the law of war. 419 For example, spying has been called a violationof the law of war or “war crime.” 420 Spying and other acts of unprivileged belligerency havebeen called offenses against the law of nations or law of war – the punishment of these offenders
has been viewed as a recognized incident or exercise of a belligerent’s war powers under the lawof war. 421
The difference in these characterizations may be traced to different definitions of “warcrime” that have been used over time. The difference in these characterizations may also be
traced to different definitions of the “law of war.” If one views the law of war as only containing
been limited or taken away by Article 68, GC (par. 438).”); LIEBER CODE art. 88 (“The spy is punishable with deathby hanging by the neck, whether or not he succeed in obtaining the information or in conveying it to the enemy.”).
416

See HAGUE IV REG. art. 30 (“A spy taken in the act shall not be punished without previous trial.”).

417

Richard R. Baxter, So-Called ‘Unprivileged Belligerency’: Spies, Guerillas, and Saboteurs, 28 BRITISH YEAR
BOOK OF INTERNATIONAL LAW 323, 324 (1951) (“The correct legal formulation is, it is submitted, that armed andunarmed hostilities, wherever occurring, committed by persons other than those entitled to be treated as prisoners of
war or peaceful civilians merely deprive such individuals of a protection they might otherwise enjoy underinternational law and place them virtually at the power of the enemy. ‘Unlawful belligerency’ is actually‘unprivileged belligerency’.”).
418

Refer to § 4.17.4 (Spying and Sabotage Permissible Under the Law of War).

419

See, e.g., 10 U.S.C. § 950t (27) (defining the offense of spying as “in violation of the law of war”); G.I.A.D.
Draper, The Status of Combatants and the Question of Guerrilla Warfare, 45 BRITISH YEAR BOOK OF
INTERNATIONAL LAW 173, 173, 176 (1971) (“On balance, the theory that illicit combatants may be killed after
capture, as an act of warfare, subject to any restraint imposed by the law of war, is somewhat artificial. There may
be some substance in the contention, and it may be more consonant with the war practices of belligerents, theofficial manuals on the law of war issued by States, and the decisions of national tribunals applying the law of war,that illegal participation in combat is a violation of the law of war exposing the offender to loss of immunity fromattack, and, upon capture, to trial and punishment upon conviction. However, the matter is controversial, and there
are certain passages in the classical writers on the law of war, such as Grotius, which lend support to the theory of‘unprivileged belligerency’.”).
420

See, e.g., U.N. SECRETARY-GENERAL, Historical Survey of the Question of International Criminal Jurisdiction,
U.N. Doc. A/CN.4/7/Rev.1, 1 (1949) (“During the greater part of modern history customary law has also recognizedso-called war crimes of various description. Perfidy, particularly that type of perfidy which is described as
espionage, is the oldest example of such a war crime.”); Ex parte Quirin, 317 U.S. 1, 31 (1942) (describing spies as“offenders against the law of war subject to trial and punishment by military tribunals.”); WINTHROP, MILITARY
LAW & PRECEDENTS 770 (“Under the law of nations and of war, [a spy’s] offence is an exclusively military one,cognizable only by military tribunals.”); G. SHERSTON BAKER, I HALLECK’S INTERNATIONAL LAW 628-29 (18.20)(1908) (“the act of spying is an offence against the laws of war alone”); James Speed, Attorney General, MilitaryCommissions, July 1865, 11 OPINIONS OF THE ATTORNEY GENERAL 297, 312-13 (1869) (“to act as spy is an offence
against the laws of war, … every lawyer knows that a spy was a well-known offender under the laws of war,”).
421

Ex parte Quirin, 317 U.S. 1, 28 (1942) (holding that the trial and punishment of enemy saboteurs by militarycommission was an “important incident to the conduct of war”).

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prohibitions, the punishment of unprivileged belligerents, like all exercises of the war powers,
emanates from the domestic law of the belligerent State. 422 On the other hand, if one views thelaw of war as also including sources of authority, the punishment of unprivileged belligerents is
also grounded in the international law of war. 423
Although the relationship between unprivileged belligerency and the law of war has beencharacterized in different ways, it is well-accepted that States may punish unprivileged enemy
belligerents after a fair trial.
4.20 CHILDREN
The GC provides special protection for children in order to protect them against thedangers of war. In addition, certain provisions of treaties and U.S. law seek to restrict the use or
recruitment of children in armed conflict.
4.20.1 Specific Protections for All Children During International Armed Conflict.
4.20.1.1 Children Under Fifteen Who Are Orphaned or Separated. The parties tothe conflict shall take the necessary measures to ensure that children under fifteen, who areorphaned or are separated from their families as a result of the war, are not left to their own
resources, and that their maintenance, the exercise of their religion, and their education are
facilitated in all circumstances. 424 The maintenance of the children concerned means theirfeeding, clothing, and accommodation, care for their health, and, where necessary, medical andhospital treatment. 425
Their education shall, as far as possible, be entrusted to persons of a similar cultural
tradition. 426 This provision is intended to exclude inappropriate religious or political propaganda
designed to influence them. 427
The parties to the conflict shall facilitate the reception of such children in a neutral
country for the duration of the conflict with the consent of the Protecting Power, if any, andunder due safeguards for the observance of the principles stated in the first paragraph of Article

422

Refer to § 1.3.3.1 (Law of War as Prohibitive Law).

423

Refer to § 1.3.3.2 (Law of War as Permissive Law).

424

GC art. 24 (“The Parties to the conflict shall take the necessary measures to ensure that children under fifteen,
who are orphaned or are separated from their families as a result of the war, are not left to their own resources, andthat their maintenance, the exercise of their religion and their education are facilitated in all circumstances.”).
425

GC COMMENTARY 187 (“The maintenance of the children concerned means their feeding, clothing, andaccommodation, care for their health and, where necessary medical and hospital treatment.”).
426

GC art. 24 (“Their education shall, as far as possible, be entrusted to persons of a similar cultural tradition.”).

427
GC COMMENTARY 187 (“That provision is most important. It is intended to exclude any religious or politicalpropaganda designed to wean children from their natural milieu; for that would cause additional suffering to humanbeings already grievously stricken by the loss of their parents.”).

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24 of the GC. 428
4.20.1.2 Identification for Children Under Twelve. The parties to the conflictshall endeavor to arrange for all children under twelve to be identified by the wearing of identity
discs, or by some other means. 429 The age of twelve was chosen because it was considered thatchildren over twelve are generally capable of stating their own identity. 430
4.20.2 Protection for Alien Children in a Belligerent’s Home Territory. In a belligerent’s
home territory, the GC provides that certain aliens (i.e., those qualifying for protected person
status under the GC) who are children under fifteen years, pregnant women, and mothers ofchildren under seven years shall benefit from any preferential treatment to the same extent as thenationals of the State concerned. 431
4.20.3 Protection for Children in Occupied Territory. Provisions of the GC address theprotection of children in occupied territory. 432
4.20.4 Protection for Children in the Context of Internment Under the GC. The GC
provides certain protections for children in the context of internment. Provisions of the GC
address:•

the internment of children with their parents; 433•

special treatment for children during internment, includingo ensuring the education of children and young people, including school
attendance, 434
o additional food for children under fifteen in proportion to their physiologicalneeds, 435 and428
GC art. 24 (“The Parties to the conflict shall facilitate the reception of such children in a neutral country for theduration of the conflict with the consent of the Protecting Power, if any, and under due safeguards for theobservance of the principles stated in the first paragraph.”).
429

GC art. 24 (“They shall, furthermore, endeavour to arrange for all children under twelve to be identified by thewearing of identity discs, or by some other means.”).
430

GC COMMENTARY 189 (“It will be noticed that the age limit here is twelve, whereas in the first two paragraphs it
was fifteen years of age: this is in accordance with a recommendation made at the XVIIth International Red Cross
Conference in Stockholm, where it was considered that children over twelve were generally capable of stating theirown identity.”).
431

Refer to § 10.7.1 (Regulation of the Situation of Protected Persons, in Principle, by Provisions Applicable to
Aliens in Time of Peace).
432

Refer to § 11.13 (Protection of Children in Occupied Territory).

433

Refer to § 10.10.3 (Families Kept Together).

434

Refer to § 10.16.2 (Education).

435

Refer to § 10.13.1.2 (Additional Food for Certain Groups).

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o special playgrounds reserved for children and young people; 436 and•special agreements for the release, the repatriation, the return to places of residence, orthe accommodation in a neutral country of, among others, children, pregnant women, andmothers with infants and young children. 437

4.20.5 Child Soldiers. Certain provisions of treaties and U.S. law seek to restrict the useor recruitment of children in armed conflict. If children are nonetheless employed in armed
conflict, they generally are treated on the same basis as adults, although children may be subject
to special treatment in detention because of their age.
Prohibitions on the use or recruitment of children also apply in non-international armed
conflict. 438
4.20.5.1 U.S. Offense of Recruiting or Using Child Soldiers. U.S. law makes it acrime, under certain circumstances, to recruit, enlist, or conscript a person to serve in an armed
force or group, while such person is under 15 years of age. 439 U.S. law also makes it a crime touse a person under 15 years of age to participate actively in hostilities. 440 These restrictions in
U.S. law are similar to provisions in treaties to which the United States is not a Party. 441
4.20.5.2 Child Soldiers Protocol. As a Party to the Optional Protocol to theConvention on the Rights of the Child on the involvement of children in armed conflict, 442 theUnited States must “take all feasible measures to ensure that members of [its] armed forces who

436

Refer to § 10.16.3 (Opportunities for Physical Exercise, Sports, and Outdoor Games).

437

Refer to § 10.9.6 (Agreements for the Release, Return, or Accommodation in a Neutral Country of Certain
Classes of Internees).
438

Refer to § 17.10.2 (Children and Participation in Non-International Armed Conflict).

439

18 U.S.C. § 2442(a) (making punishable, under certain circumstances, “[w]hoever knowingly— (1) recruits,
enlists, or conscripts a person to serve while such person is under 15 years of age in an armed force or group; …
knowing such person is under 15 years of age”).

440

18 U.S.C. § 2442(a) (making punishable, under certain circumstances, “[w]hoever knowingly … (2) uses a
person under 15 years of age to participate actively in hostilities; knowing such person is under 15 years of age”).
441

Consider AP I art. 77(2) (“The Parties to the conflict shall take all feasible measures in order that children who
have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrainfrom recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen
years but who have not attained the age of eighteen years the Parties to the conflict shall endeavour to give priority
to those who are oldest.”); Convention on the Rights of the Child, art. 38(2)-(3), Feb. 16, 1995, 1577 UNTS 3, 56(providing that “States Parties shall take all feasible measures to ensure that persons who have not attained the ageof fifteen years do not take a direct part in hostilities” and that “States Parties shall refrain from recruiting any
person who has not attained the age of fifteen years into their armed forces”); ROME STATUTE art. 8(2)(b)(xxvi)(defining ‘war crime’ to include “[c]onscripting or enlisting children under the age of fifteen years into the nationalarmed forces or using them to participate actively in hostilities” in international armed conflict).
442

2201 UNTS 311 (“RATIFICATION (WITH DECLARATION AND UNDERSTANDINGS) United States of America Depositof instrument with the Secretary-General of the United Nations: 23 December 2002”).

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have not attained the age of 18 years do not take a direct part in hostilities.” 443 The United States
made a statement of understanding regarding the meaning of the phrase “direct part in hostilities”
in the Child Soldiers Protocol. 444
As a Party to the Child Soldiers Protocol, the United States also has an obligation toensure that persons who have not attained the age of 18 years are not compulsorily recruited into
its armed forces. 445 In a declaration deposited pursuant to Article 3(2) of the Child Soldiers
Protocol, 446 the United States described its measures in place to comply with this obligation andstated that the minimum age at which it permitted persons to be voluntarily recruited in the U.S.
Armed Forces is 17 years of age. 447
4.20.5.3 Treatment of Child Soldiers. In general, children receive the rights,
duties, and liabilities of combatant status on the same basis as other persons. For example, there
is no age requirement for someone to receive POW status. Similarly, whether a civilian isconsidered to be taking a direct part in hostilities does not depend on that person’s age.
Children who have participated in hostilities or been associated with an armed force whoare detained might require additional consideration because of their age. For example, rules for

443

Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed
Conflict, art. 1, May 25, 2000, 2173 UNTS 222, 237 (“States Parties shall take all feasible measures to ensure thatmembers of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities.”).
444

See United States, Statement on Ratification of the Child Soldiers Protocol, Dec. 23, 2002, 2201 UNTS 311, 312(“(2) The United States understands that, with respect to Article 1 of the Protocol - … (B) the phrase ‘direct part inhostilities’ - (i) means immediate and actual action on the battlefield likely to cause harm to the enemy because there
is a direct causal relationship between the activity engaged in and the harm done to the enemy; and (ii) does notmean indirect participation in hostilities, such as gathering and transmitting military information, transporting
weapons, munitions, or other supplies, or forward deployment;”). This statement of understanding was intended toaddress the usage of the phrase “direct part in hostilities” in the context of these treaty obligations relating tolimiting the participation of children in armed conflict, and the phrase “direct part in hostilities” may be interpreted
differently in other contexts, such as the circumstances in which civilians forfeit their protection from being madethe object of attack. Refer to § 5.8 (Civilians Taking a Direct Part in Hostilities).
445

Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed
Conflict, art. 2, May 25, 2000, 2173 UNTS 222, 237 (“States Parties shall ensure that persons who have not attained
the age of 18 years are not compulsorily recruited into their armed forces.”).
446

Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed
Conflict, art. 3(2), May 25, 2000, 2173 UNTS 222, 237 (“Each State Party shall deposit a binding declaration uponratification of or accession to this Protocol that sets forth the minimum age at which it will permit voluntary
recruitment into its national armed forces and a description of the safeguards that it has adopted to ensure that suchrecruitment is not forced or coerced.”).
447

United States, Statement on Ratification of the Child Soldiers Protocol, Dec. 23, 2002, 2201 UNTS 311 (“(A) the
minimum age at which the United States permits voluntary recruitment into the Armed Forces of the United States is
17 years of age; (B) The United States has established safeguards to ensure that such recruitment is not forced or
coerced, including a requirement in section 505 (a) of title 10, United States Code, that no person under 18 years ofage may be originally enlisted in the Armed Forces of the United States without the written consent of the person’s
parent or guardian, if the parent or guardian is entitled to the person’s custody and control; (C) each person recruited
into the Armed Forces of the United States receives a comprehensive briefing and must sign an enlistment contract
that, taken together, specify the duties involved in military service; and (D) all persons recruited into the Armed
Forces of the United States must provide reliable proof of age before their entry into military service.”).

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the additional provision for their education might be applicable. 448 Similarly, it might beappropriate to take into account the age of a defendant in determining liability or punishment forviolations of the law of war.
4.21 MERCENARIESThe act of being a mercenary is not a crime in customary international law nor in any
treaty to which the United States is a Party. 449 Under the customary law of war and the GPW,
“mercenaries” receive the rights, duties, and liabilities of combatant status on the same basis asother persons. For example, being a “mercenary” or paid for participating in hostilities does notdeprive a person of POW status, if that person otherwise meets the requirements for POW status,
such as by being a member of a militia that is part of the armed forces of a State. 450 Mercenaries
must comply with the law of war and may be tried and punished for violations of the law of war
on the same basis as other persons. States that employ mercenaries are responsible for theirconduct, including their compliance with the law of war.
Mercenaries are often nationals of States that are not parties to a conflict. In general, anational of a neutral State who, during an international armed conflict, commits hostile acts
against a State or who voluntarily enlists in the armed forces of one of the parties should not be
more severely treated by the State against whom he or she has abandoned his or her neutrality
than a national of the other belligerent State could be for the same act. 451
4.21.1 Treaties on Mercenaries. A number of treaty provisions are intended to repress
mercenary activities. The United States has not accepted any such provision because these
efforts are not consistent with fundamental principles of the law of war. 452

448

Refer to § 9.16.2 (Education); § 10.16.2 (Education).

449

See Edward R. Cummings, Attorney-Adviser, Department of State, International Legal Rights of Captured
Mercenaries, Oct. 17, 1980, III CUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 19811988 3457 (“The act of being a mercenary is not a crime under international law. An individual who is accused ofbeing a mercenary and who is captured during an armed conflict is entitled to the basic humanitarian protections of
the international law applicable in armed conflict, including those specified in the Geneva Convention Relative to
the Protection of Civilian Persons in Time of War (Aug. 12, 1949; TIAS No. 3365; 6 UST 3516). The specificrights which such an individual would be entitled to vary depending on whether the conflict is an international
conflict or an internal one and, in the case of international armed conflicts, on whether the person is entitled toprisoner-of-war status.”).
450

Refer to § 4.5 (Armed Forces of a State).

451

Refer to § 15.6.2.1 (No More Severe Treatment Than Nationals of an Opposing Belligerent State).

452

See, e.g., The Position of the United States on Current Law of War Agreements: Remarks of Judge Abraham D.
Sofaer, Legal Adviser, United States Department of State, January 22, 1987, 2 AMERICAN UNIVERSITY JOURNAL OF
INTERNATIONAL LAW AND POLICY 460, 469 (1987) (“[Article 47 of AP I] was included in the Protocol not forhumanitarian reasons, but purely to make the political point that mercenary activity in the Third World isunwelcome. In doing so, this article disregards one of the fundamental principles of international humanitarian law
by defining the right to combatant status, at least in part, on the basis of the personal or political motivations of theindividual in question. This politicizing of the rules of warfare is contrary to Western interests and the interests ofhumanitarian law itself.”).

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AP I denies “mercenaries” the right to be lawful combatants or POWs. 453 This provisionin AP I was adopted because certain States wanted to condemn mercenary groups that had
played a role in armed conflicts that had taken place in Sub-saharan Africa since 1960. 454
However, AP I defines “mercenary” very narrowly. 455 For example, any member of the armed
forces of a party to the conflict, or any member of the armed forces of any other State, who issent on official duty as a member of its armed forces, is not a mercenary as defined by AP I. 456
In addition, although, under AP I, mercenaries lack the right to be a combatant or a POW, Parties
to AP I may nonetheless decide as a matter of policy to treat enemy mercenaries as lawful
combatants or POWs.
Shortly after the adoption of AP I, the Convention for the Elimination of Mercenarism inAfrica was adopted, which uses the same definition of mercenary as AP I, 457 but creates greaterobligations for Parties to punish and repress mercenarism. 458 The United States is not a Party to453

See AP I art. 47(1) (“A mercenary shall not have the right to be a combatant or a prisoner of war.”).

454

BOTHE, PARTSCH, & SOLF, NEW RULES 269 (AP I art. 47, ¶2.2) (“The condemnation and outlawing of mercenarygroups and individual mercenaries who had played a substantial (and often unsavoury) role in the armed conflicts
which took place in Sub-saharan Africa since 1960 was a high priority goal of African delegations, which was
supported by other Third World delegations and by the Eastern European group.”).

455

See AP I art. 47(2) (“A mercenary is any person who: (a) Is specially recruited locally or abroad in order to fightin an armed conflict; (b) Does, in fact, take a direct part in the hostilities; (c) Is motivated to take part in the
hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict,material compensation substantially in excess of that promised or paid to combatants of similar ranks and functionsin the armed forces of that Party; (d) Is neither a national of a Party to the conflict nor a resident of territory
controlled by a Party to the conflict; (e) Is not a member of the armed forces of a Party to the conflict; and (f) Has
not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.”).

456

Edward R. Cummings, Attorney-Adviser, Department of State, International Legal Rights of Captured
Mercenaries, Oct. 17, 1980, III CUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 19811988 3457, 3461 (“This narrow definition of mercenaries in effect denies prisoner-of-war status to individuals whofight strictly for private gain. It does not affect any individual who is a member of the state’s regular forces andother legitimate combatants.”).
457

See Organisation of African Unity Convention for the Elimination of Mercenarism in Africa, art. 1(1), Jul. 3,
1977, 1490 UNTS 89, 96 (“A mercenary is any person who: a) Is specially recruited locally or abroad in order tofight in an armed conflict; b) Does in fact take a direct part in the hostilities; c) Is motivated to take part in the
hostilities essentially by the desire for private gain and in fact is promised by or on behalf of a party to the conflictmaterial compensation; d) Is neither a national of a party to the conflict nor a resident of territory controlled by aparty to the conflict; e) Is not a member of the armed forces of a party to the conflict; and f) Is not sent by a Stateother than a party to the conflict on official mission as a member of the armed forces of the said State.”).
458

See Organisation of African Unity Convention for the Elimination of Mercenarism in Africa, art. 6, Jul. 3, 1977,
1490 UNTS 89, 97-98 (“The contracting parties shall take all necessary measures to eradicate all mercenary
activities in Africa. To this end, each contracting State shall undertake to: a) Prevent its nationals or foreigners on
its territory from engaging in any of the acts mentioned in Article 1 of this Convention; b) Prevent entry into or
passage through its territory of any mercenary or any equipment destined for mercenary use; c) Prohibit on its
territory any activities by persons or organisations who use mercenaries against any African State member of theOrganization of African Unity or the people of Africa in their struggle for liberation; d) Communicate to the otherMember States of the Organization of African Unity either directly or through the Secretariat of the OAU any
information related to the activities of mercenaries as soon as it comes to its knowledge; e) Forbid on its territory therecruitment, training, financing and equipment of mercenaries and any other form of activities likely to promotemercenarism; f) Take all the necessary legislative and other measures to ensure the immediate entry into force of thisConvention.”).

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this treaty.
The International Convention against the Recruitment, Use, Financing and Training ofMercenaries of December 4, 1989, defines “mercenary” slightly more broadly than AP I, applies
to both international and non-international armed conflicts, and defines various offenses related
to the recruiting, use, financing, or training of mercenaries. 459 The United States is not a Party tothis treaty.
4.22 AP I PROVISIONS ON CIVIL DEFENSE PERSONNEL
Articles 61-67 of AP I address “civil defence”, i.e., the performance of certain
humanitarian tasks intended to benefit the civilian population. 460
The United States has supported the principle that civilian civil defense organizations andtheir personnel be respected and protected as civilians and be permitted to perform their civil
defense tasks except in cases of imperative military necessity. 461 However, a number of military
operational problems have been identified with respect to the system of protection for civil
defense established by AP I, and these provisions of AP I may be understood not to preclude an
attack on an otherwise lawful military objective. 462
4.23 LAW ENFORCEMENT OFFICERS
In general, police officers receive the rights, duties, and liabilities of civilian status. 463
However, law enforcement agencies are in many respects similar to military forces. They areauthorized to use necessary force on behalf of the State, are generally distinguishable from459

See International Convention against the Recruitment, Use, Financing and Training of Mercenaries, Dec. 4, 1989,
Annex to U.N. GENERAL ASSEMBLY RESOLUTION 44/34, U.N. Doc. A/RES/44/34 (Dec. 4, 1989).
460

AP I art. 61 (“For the purposes of this Protocol: (a) ‘Civil defence’ means the performance of some or all of theundermentioned humanitarian tasks intended to protect the civilian population against the dangers, and to help it torecover from the immediate effects, of hostilities or disasters and also to provide the conditions necessary for its
survival. These tasks are: (i) Warning; (ii) Evacuation; (iii) Management of shelters; (iv) Management of blackout
measures; (v) Rescue; (vi) Medical services, including first aid, and religious assistance; (vii) Fire-fighting; …”).
461

Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on the
Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the
Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 427 (1987)(“Turning now to the field of civil defense, we support the principle that civilian civil defense organizations andtheir personnel be respected and protected as civilians and be permitted to perform their civil defense tasks except incases of imperative military necessity. We also support the principle that in occupied territories, civilians receivefrom the appropriate authorities, as practicable, the facilities necessary for the performance of their tasks. These
principles reflect, in general terms, many of the detailed provisions in articles 62 and 63.”).
462

APPENDIX TO 1985 CJCS MEMO ON AP I 69-71 (“In general, the system of protection for civil defense establishedby the Protocol is well-meaning, but creates a number of military operational problems. The main practicalproblems arise from the ambiguity of the definition of civil defense activities in Article 61. … An attacking force
will often have difficulty deciding whether to respect the sign in a particular case. To lessen the risk of misuse ofthis sign and avoid placing an unacceptable burden on proof of an attacking force, an understanding is proposed thatmakes it clear that Articles 61-67 do not preclude an attack on an otherwise lawful military objective.”).
463

Refer to § 4.8 (Rights, Duties, and Liabilities of Civilians).

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private citizens, and are often organized like military forces. In cases where States choose to use
police officers as part of the armed forces, they receive the rights, duties, and liabilities ofcombatant status. 464
4.23.1 Police as Civilians. In general, members of law enforcement agencies have
civilian status. 465 Furthermore, routine domestic law enforcement is part of the generalprotection of the civilian population and does not constitute “taking a direct part in hostilities”
that would deprive police officers of their protection from being made the object of attack. 466
4.23.2 Police With a Military Role. Some States use police forces in a paramilitarycapacity or use military forces in a police role. Members of the armed forces engaged in police
roles are combatants.
The extent to which police officers are treated as combatants largely depends on whether
the State decides to use them in that capacity. States may decide to make law enforcement
agencies part of their armed forces. 467 Members of these law enforcement agencies, like othermembers of those armed forces, receive combatant status by virtue of their membership in thearmed forces. 468 In addition, States may authorize members of the law enforcement agencies toaccompany their armed forces without incorporating them into their armed forces. These
persons have the legal status of persons authorized to accompany the armed forces. 469
4.23.3 Police in Non-International Armed Conflict. Police officers may play a larger rolein armed conflicts between States and insurgent or terrorist groups because in such conflicts theState may treat all enemy persons’ participation in hostilities as criminal. 470
4.24 JOURNALISTS
In general, journalists are civilians and are protected as such under the law of war.
464

Refer to § 4.4 (Rights, Duties, and Liabilities of Combatants).

465

Memorandum submitted in United States v. Shakur, 690 F. Supp. 1291 (S.D.N.Y. 1988), III CUMULATIVEDIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-88 3436, 3450 (“Members of the civilian police
force are not deemed to be legitimate objects of attack during international wars unless they are incorporated into thearmed forces. The ‘status of police is generally that of civilians’ for purposes of the law of war.”).
466

Refer to § 5.8.3.2 (Examples of Acts Not Considered Taking a Direct Part in Hostilities).

467

For example, Belgium, Statement on Ratification of AP I, May 20, 1986, 1435 UNTS 367, 367-68 (“Considering
paragraph 3 of article 43 (armed forces) and the special status of the Belgian gendarmerie, the Belgian Government
has decided to notify the High Contracting Parties about the following duties which are entrusted to the Belgian
gendarmerie during periods of armed conflict. It believes that this notification, in so far as is necessary, meets therequirements of article 43 in respect of the gendarmerie. (a) The Belgian gendarmerie, which was established tomaintain order and enforce the law, is a public force which, under national legislation, constitutes one of the armed
forces and which therefore corresponds to the concept of ‘armed forces of a party to a conflict’ within the meaningof article 43 of Protocol I. Thus, in times of international armed conflict the members of the gendarmerie have‘combatant’ status within the meaning of that Protocol.”).
468

Refer to § 4.5 (Armed Forces of a State).

469

Refer to § 4.15 (Persons Authorized to Accompany the Armed Forces).

470

Refer to § 17.4.1 (Ability of a State to Use Its Domestic Law Against Non-State Armed Groups).

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Journalists play a vital role in free societies and the rule of law and in providing
information about armed conflict. 471 Moreover, the proactive release of accurate information todomestic and international audiences has been viewed as consistent with the objectives of U.S.
military operations. 472 DoD operates under the policy that open and independent reporting is theprincipal means of coverage of U.S. military operations. 473 In addition to responding to press
inquiries and providing briefings to members of the press on U.S. military operations, DoD
practice has also been to embed journalists with units during military operations. 474 Embedded
journalists are assigned to a unit, and they eat, sleep, and move with the unit. 475
4.24.1 Status of Journalists – Generally Civilian. In general, journalists are protected as

471

See, e.g., Robert S. Taylor, Acting General Counsel, Department of Defense, Letter to Christophe Deloire,
Secretary-General, Reporters Without Borders, Sept. 15, 2015 (“The Department supports and respects the vital
work that journalists perform. Their work in gathering and reporting news is essential to a free society and the ruleof law. The Department shares your deep concern about the risks faced by journalists in situations of armed
conflict.”); Remarks by Ambassador Rosemary A. DiCarlo, Acting Permanent Representative to the United Nations,
At a Security Council Open Debate on Protection of Civilians in Armed Conflict: Protection of Journalists, July 17,
2013, 2013 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 195 (“Journalists are literally our eyes
and ears in every corner of the world. They sound the warning when local tensions threaten to erupt into war. They
document the suffering of civilians in conflict areas. And they expose human rights violations and war crimes.
Journalists are critical to this Council’s ability to remain well informed so that it may fulfill its mandate to maintaininternational peace and security.”).
472

JOINT PUBLICATION 3-61, Public Affairs, I-1 (Nov. 17, 2015) (“b. The US military has an obligation tocommunicate with its members and the US public, and it is in the national interest to communicate with international
publics. The proactive release of accurate information to domestic and international audiences puts joint operations
in context, facilitates informed perceptions about military operations, undermines adversarial propaganda, and helps
achieve national, strategic, and operational objectives.”).
473

DOD DIRECTIVE 5122.05, Assistant Secretary of Defense for Public Affairs (ASD(PA)), 9 (Sept. 5, 2008),
Enclosure 3 - Statement of DoD Principles for News Media Coverage of DoD Operations (“1. Open andindependent reporting shall be the principal means of coverage of U.S. military operations.”).

474

For example, Richard K. Wright, Assessment of the DoD Embedded Media Program, I-1 (Institute for Defense
Analyses, Sept. 2004) (“The Department of Defense (DoD) Embedded Media Program resulted in an unprecedented
opportunity for the media to report in real time on the military units and the soldiers, marines, sailors, and airmen
who executed combat operations during Operation Iraqi Freedom (OIF). A total of 692 reporters, photographers,
producers, cameramen, and technicians were embedded with ground units, on ships, and at air bases for an extended
period of time.”).
475

Public Affairs Guidance (PAG) On Embedding Media During Possible Future Operations/Deployments In The
U.S. Central Command (CENTCOM) Area Of Responsibility (AOR), Feb. 10, 2003, ¶2.C, reprinted as Appendix D
in Richard K. Wright, Assessment of the DoD Embedded Media Program, D-4 (Institute for Defense Analyses, Sept.
2004) (“A MEDIA EMBED IS DEFINED AS A MEDIA REPRESENTATIVE REMAINING WITH A UNIT ON
AN EXTENDED BASIS – PERHAPS A PERIOD OF WEEKS OR EVEN MONTHS. COMMANDERS WILLPROVIDE BILLETING, RATIONS, AND MEDICAL ATTENTION, IF NEEDED, TO THE EMBEDDEDMEDIA COMMENSURATE WITH THAT PROVIDED TO MEMBERS OF THE UNIT, AS WELL AS ACCESSTO MILITARY TRANSPORTATION AND ASSISTANCE WITH COMMUNICATIONSFILING/TRANSMITTING MEDIA PRODUCTS, IF REQUIRED.”); DEPARTMENT OF THE ARMY FIELD MANUAL
46-1, Public Affairs Operations, 25-26 (May 30, 1997) (“PAOs should seek out those members of the media whoare willing to spend extended periods of time with soldiers during an operation, embedding them into the unit they
cover. Embedding is the act of assigning a reporter to a unit as a member of the unit. The reporter eats, sleeps, andmoves with the unit. The reporter is authorized open access to all sections of the unit and is not escorted by publicaffairs personnel. Rather, the unit is the reporter’s escort.”).

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civilians; 476 i.e., engaging in journalism does not constitute taking a direct part in hostilities suchthat such a person would be deprived of protection from being made the object of attack. 477
Journalists do not form a distinct class of persons under the law of war, but instead
receive protection through the general protections afforded civilians. 478 Thus, in general, therights, duties, and liabilities applicable to civilians also apply to journalists. 479
Although journalism is regarded as a civilian activity, the fact that a person performs
such work does not preclude that person from otherwise acquiring a different status under thelaw of war, such as the status of persons authorized to accompany the armed forces or of
combatants.
4.24.1.1 War Correspondents and Other Journalists Authorized to Accompany the
Armed Forces. Journalists authorized to accompany the armed forces have the status of such
persons. 480 For example, if they fall into the power of the enemy during international armed
conflict, they are entitled to POW status. 481 Such journalists are sometimes called “war476

See Hedges v. Obama, No. 12-3644, Reply Brief for Defendant-Appellant, 11 (2d Cir. Dec. 20, 2012) (“As an
initial matter, it is an established law of war norm, which is reflected in Article 79 of Additional Protocol I to the
Geneva Conventions, that ‘journalists’ are generally to be protected as ‘civilians.’ Although the United States is nota party to Additional Protocol I, it supports and respects this important principle.”); Michael J. Matheson, Deputy
Legal Adviser, Department of State, Remarks on the United States Position on the Relation of Customary
International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the Sixth Annual American
Red Cross-Washington College of Law Conference on International Humanitarian Law (Jan. 22, 1987), 2
AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 428 (1987) (“We also support the
principle that journalists be protected as civilians under the Convention, provided they take no action adversely
affecting such status.”). Consider AP I art. 79 (“MEASURES OF PROTECTION FOR JOURNALISTS. 1. Journalists
engaged in dangerous professional missions in areas of armed conflict shall be considered as civilians within themeaning of Article 50, paragraph 1. 2. They shall be protected as such under the Conventions and this Protocol,
provided that they take no action adversely affecting their status as civilians, and without prejudice to the right of
war correspondents accredited to the armed forces to the status provided for in Article 4 A (4) of the Third
Convention.”).

477

Refer to § 5.8.3.2 (Examples of Acts Not Considered Taking a Direct Part in Hostilities).

478

See, e.g., U.N. SECURITY COUNCIL RESOLUTION 2222 (2015), U.N. Doc. S/RES/2222 (2015) ¶¶ 3, 7 (May 27,2015) (“3. Recalls in this regard that journalists, media professionals and associated personnel engaged indangerous professional missions in areas of armed conflict shall be considered as civilians and shall be respected
and protected as such, provided that they take no action adversely affecting their status as civilians. … 7. Recalls its
demand that all parties to an armed conflict comply fully with the obligations applicable to them under internationallaw related to the protection of civilians in armed conflict, including journalists, media professionals and associatedpersonnel;”).

479

Refer to § 4.8 (Rights, Duties, and Liabilities of Civilians).

480

Refer to § 4.15 (Persons Authorized to Accompany the Armed Forces).

481

See GPW art. 4A(4) (defining “prisoners of war, in the sense of the present Convention” to include “[p]ersons
who accompany the armed forces without actually being members thereof, such as … war correspondents, …
provided that they have received authorization from the armed forces which they accompany,” who have fallen into
the power of the enemy); HAGUE IV REG. art. 13 (“Individuals who follow an army without directly belonging to it,such as newspaper correspondents and reporters, … who fall into the enemy’s hands and whom the latter thinks
expedient to detain, are entitled to be treated as prisoners of war, provided they are in possession of a certificate
from the military authorities of the army which they were accompanying.”).

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correspondents,” which is a term used in Geneva Conventions of 1949. 482
Since journalists authorized to accompany the armed forces are liable to become POWs,
they must be issued identification cards so that they may establish their entitlement to POW
status upon falling into the power of the enemy during international armed conflict. 483
4.24.1.2 Combatants Performing Journalistic Work. Although generally
journalists are civilians, journalists are not precluded from being considered combatants, whether
privileged or unprivileged, if they otherwise acquire such status. For example, members of thearmed forces sometimes serve as journalists or in some other public affairs capacity, and these
persons have the same status as other privileged combatants. 484 Non-State armed groups
sometimes use their members 485 for propaganda or other media activities, and such personnel are
not precluded from being considered unprivileged belligerents. 486 In addition, althoughengaging in journalism would not be a basis to consider a person an unprivileged belligerent, an
unprivileged belligerent would not be precluded from being considered as such because he or she
works as a journalist.
4.24.2 General Rules for the Treatment of Civilian Journalists and Journalists Authorized
to Accompany the Armed Forces. Although journalists generally are protected as civilians as alegal matter, the factual circumstances of armed conflict often expose journalists exercising theirprofession in such a situation to dangers not normally encountered by other civilians. 487
4.24.2.1 Journalists – Risks in Areas of Military Operations. Journalists whoenter areas of military operations assume a significant risk that they could be injured or killedincidental to an enemy attack or from other dangers. 488 Unfortunately, journalists havesometimes been killed while reporting in close proximity to combat operations. 489 To minimize
482

GPW art. 4A(4); AP I art. 79(2).

483Refer to § 9.4.3 (Issue of Identification Cards to Persons Liable to Become POWs).

484

Refer to § 4.5 (Armed Forces of a State).

485

Refer to § 4.18.4.1 (Being Part of a Hostile, Non-State Armed Group).

486

For example, United States v. Al Bahlul, 820 F. Supp. 2d 1141, 1261 (CMCR 2011) (“In his voluntarystatements to investigators, appellant admitted on multiple occasions to traveling to Afghanistan with the intent tojoin al Qaeda, undergoing military-type training at an al Qaeda sponsored camp, and meeting with bin Ladenfollowing his training. During that meeting, appellant admitted discussing bin Laden’s views on Islam and jihad
against the United States, agreeing with those views, and then pledging personal loyalty to bin Laden. He thenjoined al Qaeda as a member, worked in al Qaeda’s media office, and eventually took charge of that office, where heperformed a number of acts to recruit, to incite others to join al Qaeda, and to indoctrinate prospective al Qaeda
recruits into the al Qaeda Plan.”).
487

See ICRC AP COMMENTARY 918 (¶3245) (“The circumstances of armed conflict expose journalists exercising
their profession in such a situation to dangers which often exceed the level of danger normally encountered bycivilians. In some cases the risks are even similar to the dangers encountered by members of the armed forces,
although they do not belong to the armed forces.”).

488

Refer to § 4.15.2.3 (Increased Risk of Incidental Harm).

489

For example, Marc Warren, The ‘Fog of Law’: The Law of Armed Conflict in Operation Iraqi Freedom, 86 U.S.
NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 167, 196-97 endnote 20 (2010) (“Consider, e.g., the case of
the Palestine Hotel in Baghdad, where two civilian cameramen were killed in an explosion caused by a round from174

the risk of mistakenly being made the object of attack, journalists often seek to distinguishthemselves from military forces. 490 Where possible, efforts should be made to distinguishbetween the activities of journalists and the activities of enemy forces, so that journalists’activities (e.g., meetings or other contacts with enemy personnel for journalistic purposes) do not
result in a mistaken conclusion that a journalist is part of enemy forces.
In addition, civilian journalists and journalists authorized to accompany the armed forces
should not take any action adversely affecting their status as civilians if they wish to retain
protection as a civilian. 491 For example, relaying target coordinates with the specific purpose of
directing an artillery strike against opposing forces would constitute taking a direct part inhostilities that would forfeit protection from being made the object of attack. 492
4.24.2.2 Journalists – Reporting on Military Operations. As noted above, DoD
operates under the policy that open and independent reporting is the principal means of coverageof U.S. military operations. Under the law of war, there is no special right for journalists toaccess areas of military operations without the consent of the State conducting those
operations. 493 The law of war does not prohibit States from taking security measures to reduce
the risk of disclosure of sensitive military information, such as numbers of military personnel,
types of on-hand equipment, unit locations, and plans for future operations. 494 For example,
the main gun of a US Abrams tank on April 8, 2003. The unit of which the tank was a part had been engaged insignificant urban fighting, including repulsing an enemy counterattack on the day of the incident, and had received
reports of enemy forward observers in high-rise buildings on the east side of the Tigris River. As the tank crossed
the Al Jumhuriya Bridge, its crew spotted, and fired one round at, what appeared to be an enemy forward observer,
but was in fact a civilian cameraman. The explosion killed Spanish cameraman Jose Couso and Reuters cameraman
Taras Protsyuk, and wounded three other journalists. US forces conducted an investigation and determined that thePalestine Hotel had been fortified by the enemy and was occupied by the enemy. The cameraman had been
misidentified as an enemy forward observer, which was a reasonable mistake under the circumstances.”); Ernie Pyle
Is Killed on Ie Island; Foe Fired when All Seemed Safe, THE NEW YORK TIMES, Apr. 19, 1945 (“GUAM, April 18—
Ernie Pyle died today on Ie Island, just west of Okinawa, like so many of the doughboys he had written about. The
nationally known war correspondent was killed instantly by Japanese machine-gun fire. The slight, graying
newspaper man, chronicler of the average American soldier’s daily round, in and out of foxholes in many war
theatres, had gone forward early this morning to observe the advance of a well-known division of the Twenty-fourth
Army Corps.”).
490

For example, Reporters Without Borders, Safety Guide for Journalists: A handbook for reporters in high-risk
environments, 41 (2015) (“To protect yourself against snipers: … • Indicate clearly that you are a journalist.
Write PRESS or TV on everything. • Don’t wear military-style clothing so as not to be confused with a combatant.
And be careful with how you carry your equipment – cameras and zooms could look like weapons from afar.”);Reporters Without Borders, Handbook for Journalists, 26 (2010) (“PASSING THROUGH AN AREA OFFIGHTING Only do so if you have no alternative. … • Distinguish yourself from those fighting, for example byputting a ‘press’ sign on the vehicle.”).
491

Consider AP I art. 79 (“Journalists engaged in dangerous professional missions in areas of armed conflict” shallbe protected as civilians from attack “provided that they take no action adversely affecting their status as civilians,”).
492

Refer to § 5.8.3.1 (Examples of Taking a Direct Part in Hostilities).

493

Compare § 4.26.2 (Consent of the Parties to the Conflict Concerned).

494

JOINT PUBLICATION 3-61, Public Affairs, C-3 (Nov. 17, 2015) (“In more general terms, information in thefollowing categories should not be revealed because of potential jeopardy to future operations, the risk to human
life, possible violation of HN and/or allied sensitivities, or the possible disclosure of intelligence methods andsources. … (1) For US (or allied) units, specific numerical information on troop strength, aircraft, weapons systems,
on-hand equipment, or supplies available for support of combat units. General terms should be used to describe175

military security ground rules may be developed for media personnel. 495 The particular
restrictions imposed by a State are likely to depend on its domestic law and policy.
Access to military operations that is afforded to media personnel must be consistent withlaw of war obligations, 496 including obligations to protect prisoners of war and other detainees
against public curiosity. 497
4.25 DELEGATES OR REPRESENTATIVES OF THE PROTECTING POWERS
4.25.1 Appointment of Delegates of the Protecting Powers. The Protecting Powers may
appoint, apart from their diplomatic or consular staff, delegates from among their own nationals
or the nationals of other neutral Powers to carry out its duties under the GPW and the GC. 498
These delegates shall be subject to the approval of the Power with which they are to carry out
their duties. 499
4.25.2 Duties of the Representatives or Delegates of the Protecting Power. The parties tothe conflict shall facilitate to the greatest extent possible the task of the representatives orunits, equipment, and/or supplies. (2) Any information that reveals details of future plans, operations, or strikes,
including postponed or canceled operations. (3) Information and VI [visual information] that would reveal the
specific location of military forces or show the level of security at military installations or encampments.”).
495

DOD DIRECTIVE 5122.05, Assistant Secretary of Defense for Public Affairs (ASD(PA)), 9 (Sept. 5, 2008),
Enclosure 3 – Statement of DoD Principles for News Media Coverage of DoD Operations (“4. Journalists in acombat zone shall be credentialed by the U.S. military and shall be required to abide by a clear set of military
security ground rules that protect U.S. Armed Forces and their operations. Violation of the ground rules may resultin suspension of credentials and expulsion from the combat zone of the journalist involved. News organizations
shall make their best efforts to assign experienced journalists to combat operations and to make them familiar with
U.S. military operations.”); see also JOINT PUBLICATION 3-61, Public Affairs, III-17 (Nov. 17, 2015) (“Ground rules
are developed to protect members of DOD from the release of information that could threaten their security or safety
during ongoing operations while facilitating the media’s access to timely, relevant information. Ground rules
reconcile the desire of the media to cover military operations with DOD security and safety concerns and are in noway intended to prevent release of derogatory, embarrassing, negative, or non-complimentary information. Mediaground rules include requirements designed to protect the security, health, and welfare of the media. Media groundrules should also include the process for release of information, media access to the commander, and access to theInternet if not commercially available, and the process for unintentional exposure to classified information.”).
496

For example, CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER& SCHOOL, U.S. ARMY, I LEGAL LESSONS LEARNED FROM AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS(11 SEPTEMBER 2001 - 1 MAY 2003) 138 (2004) (“The presence of embedded media resulted in various issues for thelegal teams. For instance with hundreds of journalists traveling throughout Iraq looking for stories, JAs reported
that they had to be vigilant in ensuring that EPWs and the bodies of deceased individuals were not photographed.
Although journalists were warned not to film or photograph EPWs and the deceased, and in most cases they did not,some journalists had to be sent home for violating this guidance.”).
497

Refer to § 8.2.2.2 (Protection Against Public Curiosity); § 9.5.3 (Protection Against Insults and Public Curiosity).

498

GPW art. 8 (“For this purpose, the Protecting Powers may appoint, apart from their diplomatic or consular staff,
delegates from amongst their own nationals or the nationals of other neutral Powers.”); GC art. 9 (same).
499

GPW art. 8 (“The said delegates shall be subject to the approval of the Power with which they are to carry out
their duties.”); GC art. 9 (same).

176delegates of the Protecting Powers. 500
The representatives or delegates of the Protecting Powers shall not in any case exceed
their mission under the 1949 Geneva Conventions. 501 They shall, in particular, take account of
the imperative necessities of security of the State wherein they carry out their duties. 502
4.25.3 Restrictions on Representatives of the Protecting Powers. A belligerent may
impose legitimate security restrictions on the activities of the delegates or representatives of theProtecting Powers working in its territory or in its facilities. However, belligerents should only
restrict the activities of the representatives or delegates of the Protecting Powers “as an
exceptional and temporary measure when this is rendered necessary by imperative militarynecessities.” 503 For example, a belligerent may postpone a visit by Protecting Powerrepresentatives to a POW camp for security or humanitarian reasons, such as tactical movementof its own forces or to protect Protecting Power personnel from explosive remnants of war being
cleared from recent military operations along the route to the POW camp.
4.26 ICRC AND OTHER IMPARTIAL HUMANITARIAN ORGANIZATIONS
The 1949 Geneva Conventions contemplate that the ICRC and other impartial
humanitarian organizations may, subject to the consent of the parties to the conflict concerned,
provide humanitarian aid and seek to ensure the protection of war victims in armed conflict. 504
In some cases, the ICRC or another impartial humanitarian organization may assume thehumanitarian functions performed by the Protecting Powers. 505
4.26.1 “Impartial”. To be an “impartial humanitarian organization” under the 1949
Geneva Conventions, a humanitarian organization must be impartial. The requirement of
impartiality distinguishes these humanitarian organizations from those with an allegiance to a
party to the conflict, such as national red cross societies. 506
4.26.2 Consent of the Parties to the Conflict Concerned. The activities of the ICRC orother impartial humanitarian organizations in a State’s sovereign territory, or in the area of a
500

GPW art. 8 (“The Parties to the conflict shall facilitate to the greatest extent possible the task of therepresentatives or delegates of the Protecting Powers.”); GC art. 9 (same).
501

GPW art. 8 (“The representatives or delegates of the Protecting Powers shall not in any case exceed their mission
under the present Convention.”); GC art. 9 (same).
502

GPW art. 8 (“They shall, in particular, take account of the imperative necessities of security of the State wherein
they carry out their duties.”); GC art. 9 (same).
503

GWS art. 8; GWS-SEA art. 8 (same). Refer to § 9.33.1 (Access by Protecting Powers); § 10.33.1 (Access byProtecting Powers).
504

See, e.g., GWS art. 9 (“The provisions of the present Convention constitute no obstacle to the humanitarian
activities which the International Committee of the Red Cross or any other impartial humanitarian organization may,subject to the consent of the Parties to the conflict concerned, undertake for the protection” and relief of persons
protected by the Convention); GWS-SEA art. 9 (same); GPW art. 9 (same); GC art. 10 (same).
505

Refer to § 18.15.2 (Appointment of a Protecting Power).

506

Refer to § 4.11 (Authorized Staff of Voluntary Aid Societies).

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State’s military operations, are subject to the consent of that State. 507 The requirement of State
consent is based on the State’s sovereign right to control access to its territory and a belligerent’s
right to control access to its military operations or territory it occupies. 508 For example,
members of impartial humanitarian organizations, like other civilians, may be removed from thevicinity of military objectives for their protection. 509
States may grant access on a case-by-case basis; access granted to one impartial
humanitarian organization does not constitute entitlement of access for other humanitarianorganizations. Impartial humanitarian organizations that have been granted access must also act
within the terms of this consent. 510 For comparison, the activities of the Protecting Power are
also subject to the consent of the affected States. 511
States should not arbitrarily withhold their consent to the activities of humanitarianorganizations, even in non-international armed conflict. 512 Where a State has accepted theservices of an impartial humanitarian organization, the State must not regard such service, suchas the provision of medical care, as unlawful and subject to punishment. 513
4.26.2.1 Impartial Humanitarian Organizations – Conditions on Access. States
may attach conditions to their consent, including necessary security measures. For example, inthe past, armed groups have sometimes attempted to use humanitarian organizations as cover for

507

U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability ofInternational Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 1991-1999 2057, 2066 (“The obligations set forth in this paragraph generally are subject tothe consent of the parties to the conflict, as noted in Article 9 of the GPW and 10 of the GC. Although the U.S.
historically has called upon the ICRC to assist it in implementation of the provisions of the 1949 Geneva
Conventions, ultimately any decision to seek assistance of the ICRC or any other humanitarian organization is
subject to the consent of the parties to the conflict in general and the host nation in particular.”).
508

Refer to § 5.19.1.1 (Belligerent Authority to Exercise Control in the Immediate Vicinity of Military Operations);§ 11.4.1 (Right of the Occupying Power to Govern the Enemy Territory Temporarily).
509

Refer to § 5.14.2 (Removing Civilians and Civilian Objects From the Vicinity of Military Objectives).

510

See U.S. RESPONSE TO ICRC CIHL STUDY 520 (“We do not believe that rule 31, as drafted, reflects customaryinternational law applicable to international or non-international armed conflicts. The rule does not reflect theimportant element of State consent or the fact that States’ obligations in this area extend only to HRP [Humanitarian
Relief Personnel] who are acting within the terms of their mission - that is, providing humanitarian relief. To theextent that the authors intended to imply a ‘terms of mission’ requirement in the rule, the authors illustrated the
difficulty of proposing rules of customary international law that have been simplified as compared to thecorresponding treaty rules.”).

511

Refer to § 18.15.3 (Activities of the Protecting Power).

512

Refer to § 17.8.1 (State Consent for Humanitarian Organizations).

513

Principles Related to the Protection of Medical Care Provided by Impartial Humanitarian Organizations During
Armed Conflict, ¶VI, attachment to Ash Carter, Secretary of Defense, Memorandum re: Principles Related to theProtection of Medical Care Provided by Impartial Humanitarian Organizations During Armed Conflict, Oct. 3,
2016 (“VI. Impartial humanitarian organizations may offer their services to any of the parties to the conflict. A.
States should not arbitrarily withhold their consent to the activities of humanitarian organizations. B. Where a State
has accepted the services of an impartial humanitarian organization, it must not regard such services, including theprovision of medical care, as unlawful and subject to punishment.”).

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participation in hostilities. 514 In addition to legitimate military considerations, otherconsiderations may also limit access by impartial humanitarian organizations to military
operations. For example, the GPW obligates a Detaining Power to protect POWs from “public
curiosity,” which may entail limiting access to POWs by private organizations. 515
4.26.2.2 Impartial Humanitarian Organizations – CCW Amended Mines Protocol
Obligation. In certain cases, however, there may be an obligation to take measures to help
protect the personnel of certain humanitarian organizations that are performing functions withthe consent of the Party to the CCW Amended Mines Protocol on whose territory the functions
are performed from the effects of mines, booby-traps, and other devices. 516
4.26.3 Special Status of the ICRC. The 1949 Geneva Conventions explicitly recognize
the special position of the ICRC among impartial humanitarian organizations. 517 Similarly,
Congress has specifically authorized – and the President has designated – the ICRC to beextended the same privileges and immunities that are afforded to public internationalorganizations in which the United States participates. 518 The President has also recognized therole of the ICRC in visiting individuals detained in armed conflict. 519 The United States hasrelied on the ICRC’s capacity, particularly in conflict situations, and has contributed
substantially to the ICRC’s work. 520 The United States has maintained a very constructive
514

U.S. RESPONSE TO ICRC CIHL STUDY 519-20 (“For example, during the 1982 Israeli incursion into Lebanon,
Israel discovered ambulances marked with the Red Crescent, purportedly representing the Palestinian Red CrescentSociety, carrying able-bodied enemy fighters and weapons. This misconduct reportedly was repeated during the2002 seizure of Bethlehem’s Church of the Nativity by members of the terrorist al Aqsa Martyrs Brigade. …
Military commanders also have had to worry about individuals falsely claiming HRP [humanitarian relief personnel]
status, as happened in Afghanistan when some members of Al Qaeda captured while fighting claimed to be working
for a humanitarian relief organization. These examples demonstrate why States, in crafting treaty provisions on this
topic, have created a ‘terms of mission’ condition for HRP in a way that rule 31 fails to do.”).
515

Refer to § 9.5.3 (Protection Against Insults and Public Curiosity).

516

Refer to § 6.12.11 (Obligation to Seek to Protect Certain Groups From the Effects of Minefields, Mined Areas,
Mines, Booby-Traps, and Other Devices).
517

See, e.g., GPW art. 125 (“The special position of the International Committee of the Red Cross in this field shallbe recognized and respected at all times.”); GC art. 142 (same).
518

See 22 U.S.C. § 288f-3 (“The International Committee of the Red Cross, in view of its unique status as animpartial humanitarian body named in the Geneva Conventions of 1949 and assisting in their implementation, shallbe considered to be an international organization for the purposes of this subchapter and may be extended theprovisions of this subchapter in the same manner, to the same extent, and subject to the same conditions, as suchprovisions may be extended to a public international organization in which the United States participates pursuant to
any treaty or under the authority of any Act of Congress authorizing such participation or making an appropriation
for such participation.”); Executive Order 12643, International Committee of the Red Cross, 53 FEDERAL REGISTER
24247 (Jun. 23, 1988) (“I hereby extend to the International Committee of the Red Cross the privileges, exemptions,and immunities provided by the International Organizations Immunities Act.”).
519

Refer to § 8.10.4 (ICRC Access to Detainees).

520

Gary Robbins, Chargé d’Affaires, Department of State, U.S. Mission to the Organization for Security andCooperation in Europe, Response to Ambassador Peter Maurer, President of the International Committee of the Red
Cross, Jan. 30, 2014 (“We honor the work that the ICRC has done over the past 150 years. With its founding
principles of impartiality, neutrality, and independence, the ICRC is able to carry out crucial work where others
cannot. The United States values the ICRC’s work and relies on its capacity, particularly in conflict situations. In
fiscal year 2013, the United States contributed more than $280 million to the ICRC’s work, which reflects our179dialogue with the ICRC.
The ICRC does important work in visiting detainees, facilitating communication between
detainees and their families, organizing relief operations, and undertaking similar humanitarian
activities during armed conflicts. For example, the ICRC has performed the functions of aProtecting Power during armed conflict. 521 In addition, the ICRC has performed the functions of
the Central Information Agency for POWs and protected persons during international armed
conflict. 522 In order to facilitate access, the ICRC conducts its visits to detention facilities on aconfidential basis, a practice that DoD has sought to respect. 523
The ICRC has issued policy proposals or interpretative guidance on a variety ofinternational law issues. Although the ICRC’s proposals and interpretations do not have binding
legal effect, they have often been helpful to States. In some cases, the United States and otherStates have not accepted the ICRC’s proposals or interpretations and instead expressed opposing
views. For example, the United States has not accepted the ICRC’s study on customaryinternational humanitarian law nor its “interpretive guidance” on direct participation in
hostilities. 524
4.27 DETERMINING THE STATUS OF DETAINEES IN CASES OF DOUBT
4.27.1 Identification Cards Used to Help Clarify Status. The 1949 Geneva Conventions
contemplate that identification cards will be used to help clarify the status of detainees ininternational armed conflict. 525 Parties to the GPW must provide identity cards to persons under
their jurisdiction who are liable to become POWs. 526 Similarly, Parties to the GWS must
provide retained personnel with a special identity card that denotes their status. 527 Capturing
units should not take these identity cards from POWs or retained personnel. 528 In addition,
confidence in the organization. We look forward to supporting the ICRC in the future as we confront significant
humanitarian need around the globe.”).
521

Refer to § 18.15.2.3 (Impartial Humanitarian Organizations Assuming Humanitarian Functions Performed byProtecting Powers Under the 1949 Geneva Conventions).
522

Refer to § 9.31.3 (Central POW Information Agency); § 10.31.3 (Central Information Agency for Protected
Persons).
523

See, e.g., American Civil Liberties Union v. Department of Defense, 389 F. Supp. 2d 547, 554 (S.D.N.Y. 2005)(noting that DoD policy “requires confidential treatment of all ICRC communications”). For discussion of the ICRC
practice of confidentiality, see Prosecutor v. Blagoje Simic et al., ICTY Trial Chamber, IT-95-9, Decision on theProsecution Motion Under Rule 73 for a Ruling Concerning the Testimony of a Witness, ¶¶45-74 (Jul. 27, 1999);
Prosecutor v. Blagoje Simic, et al., ICTY Trial Chamber, IT-95-9, Separate Opinion Of Judge David Hunt On
Prosecutor’s Motion For A Ruling Concerning The Testimony Of A Witness, ¶¶14-33 (Jul. 27, 1999).
524

Refer to § 19.25 (2005 ICRC Study on Customary International Humanitarian Law); § 5.8.1.2 (AP I, Article
51(3) Provision on Direct Participation in Hostilities).
525

See, e.g., GPW COMMENTARY 52 (“If need be, any person to whom the provisions of Article 4 [of the GPW] areapplicable can prove his status by presenting the identity card provided for in Article 17.”).
526

Refer to § 9.4.3 (Issue of Identification Cards to Persons Liable to Become POWs).

527

Refer to § 7.9.2 (Use of Identification Card to Help Establish Retained Personnel Status).

528

GPW art. 17 (“The identity card shall be shown by the prisoner of war upon demand, but may in no case be taken
away from him.”); GWS art. 40 (“In no circumstances may the said personnel be deprived of their insignia or

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States should retain duplicate copies of identification cards that they issue. 529 In contemporary
practice, modern storage systems, such as computer databases, are used rather than storing
duplicates of the issued identification cards. 530
Producing an identification card to capturing forces is not necessarily a prerequisite for a
person to be entitled to a particular status. Identification cards may become lost, damaged, orstolen during military operations, so a failure to produce an identity card does not necessarilymean that person lacks a particular status. 531
4.27.2 POW Protections for Certain Persons Until Status Has Been Determined.
Capturing personnel may be unable to establish a detainee’s status, including whether that person
is entitled to POW status under the GPW. For example, a detainee might have lost his or her
identity card or the detainee might be a deserter who does not wish to admit that he or she is amember of enemy armed forces.
During international armed conflict, 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 thecategories enumerated in Article 4 of the GPW, such persons shall enjoy the protection of the
GPW until such time as their status has been determined by a competent tribunal. 532
4.27.3 Competent Tribunal to Assess Entitlement to POW Status or Treatment. The“competent tribunal” in Article 5 of the GPW is often called an “Article 5 tribunal.” In some

identity cards nor of the right to wear the armlet. In case of loss, they shall be entitled to receive duplicates of thecards and to have the insignia replaced.”).
529

GWS art. 40 (Identity cards for military medical and religious personnel “should be made out, if possible, at leastin duplicate, one copy being kept by the home country.”); GPW art. 17 (Identity cards for prisoners of war “[a]s far
as possible … shall be issued in duplicate.”).
530

For example, DOD INSTRUCTION 1000.01, Identification (ID) Cards Required by the Geneva Conventions,¶3(a)(3) (Apr. 16, 2012) (“The duplicate ID card requirements of Article 17 of Reference (f), to facilitate
identification of POWs with the Prisoner of War Information Bureau as delineated in Article 122 of Reference (f),are more adequately met by the information routinely maintained in the Defense Enrollment Eligibility Reporting
System (DEERS). Accordingly, duplicate ID cards will not be required.”).
531

See, e.g., GPW COMMENTARY 64-65 (noting that States at the Diplomatic Conference of Geneva of 1949
“considered that the capacity in which the person was serving should be a determining factor; the possession of a[nidentification] card is not therefore an indispensable condition of the right to be treated as a prisoner of war, but asupplementary safeguard”).
532

GPW art. 5 (“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 theprotection of the present Convention until such time as their status has been determined by a competent tribunal.”).
Consider AP I art. 45(1) (“A person who takes part in hostilities and falls into the power of an adverse Party shall be
presumed to be a prisoner of war, and therefore shall be protected by the Third Convention, if he claims the status of
prisoner of war, or if he appears to be entitled to such status, or if the Party on which he depends claims such statuson his behalf by notification to the detaining Power or to the Protecting Power. Should any doubt arise as towhether any such person is entitled to the status of prisoner of war, he shall continue to have such status and,
therefore, to be protected by the Third Convention and this Protocol until such time as his status has been
determined by a competent tribunal.”).

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cases, courts have undertaken to assess whether a detainee is entitled to POW status, 533 but a“competent tribunal” generally entails the Detaining Power convening an administrative
board. 534 The GPW affords the Detaining Power substantial discretion regarding thecomposition and procedures of an Article 5 tribunal. 535
Article 5 only requires a tribunal if there is “any doubt” regarding a person’s entitlement
to POW status or treatment. 536 For example, if there was no doubt that the armed group to which
a person belongs fails to qualify for POW status, then the GPW would not require a tribunal toadjudicate the person’s claim to POW status by virtue of membership in that group. 537
4.27.4 Tribunals to Assess Other Detainee Issues. By its terms, Article 5 of the GPW
only addresses a person’s entitlement to POW status or treatment. However, an administrative
process may be appropriate to address status questions besides entitlement to POW status ortreatment, such as whether detainees are retained personnel or civilians. DoD practice has been
to use Article 5 tribunals or similar administrative tribunals to address those issues. 538 For
example, DoD used administrative tribunals to address a variety of detainee issues during
detention operations in Viet Nam, 539 Panama, 540 the Persian Gulf in 1991, 541 Iraq in 2003, 542

533

See, e.g., United States v. Lindh, 212 F. Supp. 2d 541, 557-58 (E.D. Va. 2002) (assessing whether a captured
Taliban fighter was entitled to POW status under GPW); United States v. Noriega, 808 F. Supp. 791, 794-96 (S.D.
Fla. 1992) (assessing whether a captured Panamanian General was entitled to POW Status under GPW); Stanislaus
Krofan & Anor. v. Public Prosecutor, (Singapore Federal Court, 1966), LEVIE, DOCUMENTS ON POWS 732-36(assessing whether captured Indonesian saboteurs were entitled to POW status under GPW); The Military
Prosecutor v. Omar Mahmud Kassem and Others (Israeli Military Court, Ramallah, Apr. 13, 1969), LEVIE,
DOCUMENTS ON POWS 771-80 (assessing whether members of the Popular Front for the Liberation of Palestine
were entitled to POW status under GPW).
534

Denmark proposed the term “competent tribunal” instead of “military tribunal” because “[t]he laws of the
Detaining Power may allow the settlement of this question by a civil court rather than by a military tribunal.” II-B
FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 270.
535

For examples of the procedures of past U.S. tribunals, see, e.g., U.S. CENTRAL COMMAND REGULATION 27-13,
Captured Persons: Determination of Eligibility for Enemy Prisoner of War Status (Jan. 15, 1991); 1997 MULTISERVICE DETENTION REGULATION § 1-6.e.

536

Jay S. Bybee, Assistant Attorney General, Status of Taliban Forces Under Article 4 of the Third Geneva
Convention of 1949, Feb. 7, 2002, 26 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 1, 9 (“Under Article 5 of GPW,‘[s]hould any doubt arise as to whether persons … 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 acompetent tribunal.’ As we understand it, DoD in the past has presumed prisoners to be entitled to POW status untila tribunal determines otherwise. The presumption and tribunal requirement are triggered, however, only if there is‘any doubt’ as to a prisoner’s Article 4 status.”) (amendments in original).
537

Refer to § 4.6.1.1 (GPW 4A(2) Conditions Required on a Group Basis).

538

See, e.g., 1997 MULTI-SERVICE DETENTION REGULATION § 1-6.e.(10) (boards making determinations pursuant to
Article 5 of GPW may make, in addition to a determination that someone is an enemy prisoner of war, also
determinations that an individuals is retained personnel, an “innocent civilian,” or a civilian internee “who forreasons of operational security, or probable cause incident to criminal investigation, should be detained.”).
539

In Viet Nam, the U.S. Army used panels of three officers assisted by a judge advocate advisor to assess the status
of detainees. See, e.g., U.S. MILITARY ASSISTANCE COMMAND VIETNAM DIRECTIVE 381-46, Military Intelligence:
Combined Screening of Detainees (Dec. 27, 1967); U.S. MILITARY ASSISTANCE COMMAND VIETNAM DIRECTIVE 205, Prisoners of War -- Determination of Eligibility (Mar. 15, 1968); Fred K. Green, The Concept of “War” and the182Afghanistan, 543 and Guantanamo. 544

Concept of “Combatant” in Modern Conflicts, 10 THE MILITARY LAW AND THE LAW OF WAR REVIEW 267, 285(1971) (discussing detainee status classifications under Military Assistance Command Vietnam Directive 20-5).
540

See FRED BORCH, JUDGE ADVOCATES IN COMBAT 103-06 (2001) (describing detainee screening procedures in
1989-1990 Operation JUST CAUSE in Panama).
541

See FINAL REPORT ON THE PERSIAN GULF WAR 577-78 (describing article 5 tribunals during Operation DESERTSTORM).
542

See, e.g., CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER &SCHOOL, U.S. ARMY, I LEGAL LESSONS LEARNED FROM AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS(11 SEPTEMBER 2001 - 1 MAY 2003) 41-47 (2004) (describing Article 5 tribunals conducted during Operation IRAQIFREEDOM in 2003).
543

See Al Maqaleh v. Gates, 604 F. Supp. 2d 205, 227 (D.D.C., 2009) (describing detainee review procedures in
Afghanistan); Detainee Review Procedures At Bagram Theater Internment, enclosed in Phillip Carter, Deputy
Assistant Secretary of Defense for Detainee Policy, Letter to Senator Carl Levin, Jul. 14, 2009 (describing modified
detainee review procedures in Afghanistan).
544

See, e.g., Executive Order 13567, Periodic Review of Individuals Detained at Guantanamo Bay Naval Station
Pursuant to the Authorization for Use of Military Force, 76 FEDERAL REGISTER 13277 (Mar. 7, 2011) (establishinga process to review on a periodic basis the continued discretionary exercise of existing detention authority for certain
individuals detained at Guantanamo Bay, Cuba); Paul Wolfowitz, Deputy Secretary of Defense, Order Establishing
Combatant Status Review Tribunal, Jul. 7, 2004, as amended 2006 (establishing an administrative process to review
the detention of foreign nationals held as enemy combatants at Guantanamo Bay, Cuba).

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V – The Conduct of Hostilities
Chapter Contents
5.1 Introduction
5.2 Overview of Rules for the Protection of Civilians
5.3 Assessing Information Under the Law of War
5.4 Rules on Conducting Assaults, Bombardments, and Other Attacks
5.5 Discrimination in Conducting Attacks
5.6 Military Objectives
5.7 Combatants
5.8 Civilians Taking a Direct Part in Hostilities
5.9 Persons Placed Hors de Combat
5.10 Proportionality in Conducting Attacks
5.11 Proportionality – Feasible Precautions in Planning and Conducting Attacks
to Reduce the Risk of Harm to Protected Persons and Objects
5.12 Proportionality – Prohibition on Attacks Expected to Cause Excessive
Incidental Harm
5.13 Attacks on Facilities, Works, or Installations Containing Dangerous Forces
5.14 Feasible Precautions to Reduce the Risk of Harm to Protected Persons andObjects by the Party Subject to Attack
5.15 Undefended Cities, Towns, and Villages
5.16 Prohibition on Using Protected Persons and Objects to Shield, Favor, or
Impede Military Operations
5.17 Seizure and Destruction of Enemy Property
5.18 Protection of Cultural Property During Hostilities
5.19 Sieges and Encircled Areas
5.20 Starvation
5.21 Overview of Good Faith, Perfidy, and Ruses
5.22 Treachery or Perfidy Used to Kill or Wound
5.23 Use of Enemy Flags, Insignia, and Military Uniforms
5.24 Improper Use of Certain Signs
5.25 Ruses of War and Other Lawful Deceptions
5.26 Non-Forcible Means and Methods of Warfare
5.27 Prohibition Against Compelling Enemy Nationals to Take Part in the
Operations of War Directed Against Their Own Country
5.1 INTRODUCTION
The right of States engaged in armed conflict to adopt means and methods of warfare is
not unlimited. 1 This Chapter addresses the law of war rules on the conduct of hostilities during
international armed conflict, such as the rules applicable to conducting attacks, the seizure anddestruction of enemy property, and deception.
1

Refer to § 2.6.2.1 (Acceptance That Belligerent Rights Are Not Unlimited).

184

This Chapter, however, does not address all rules related to the conduct of hostilities. For
example, rules on the use of certain types of weapons are addressed in Chapter VI. 2 In addition,
later chapters address conduct of hostilities rules and issues specific to the Naval (Chapter XIII),Air (Chapter XIV), Space (Chapter XIV), and Cyber (Chapter XVI) domains, and Chapter XVIII
addresses non-international armed conflict. 3
Violations of the rules in the conduct of hostilities may be violations of criminal law,although it is not a purpose of this Chapter to address liability under criminal law.
5.1.1 Notes on Terminology – “Means and Methods of Warfare”. In general, method of
warfare has referred to how warfare is conducted, while means of warfare has referred toweapons or devices used to conduct warfare. 4
For example, an analysis of a method of warfare might consider the way in which an
artillery projectile may be employed, particularly where employment could have an adverse
effect on the civilian population. On the other hand, an analysis of the legality of the means of
warfare might consider the legality of the way in which the artillery projectile is designed to killor injure enemy combatants. 5
Although the terms means of warfare and methods of warfare lack an established,specific meaning, in some cases, the phrase “method of warfare” may be a term of art in a legal
instrument that has been specifically interpreted by the United States. For example, theChemical Weapons Convention obligates Parties to undertake not to use riot control agents as a“method of warfare,” and the United States has interpreted that prohibition not to include certain
uses of riot control agents. 6
5.1.2 Implementation of Law of War Obligations in the Conduct of Hostilities During
2

Refer to § 6.5.1 (Certain Types of Weapons With Specific Rules on Use).

3

Refer to § 13.3 (Overview of Rules for Naval Engagements); § 14.8 (Attacks Against Military Objectives in theAir); § 14.9 (Air Attacks Against Military Objectives on the Ground); § 16.5 (Cyber Operations and Jus in Bello); §17.7 (Rules on Conducting Attacks in NIAC).
4

See, e.g., W. Hays Parks, Special Assistant to The Judge Advocate General of the Army for Law of War Matters,
Memorandum of Law: Travaux Preparatoires and Legal Analysis of Blinding Laser Weapons Protocol, reprinted in
THE ARMY LAWYER 33, 34-35 (Jun. 1997) (“Method of warfare is one of two historic phrases in the law of war.
Although neither phrase has an agreed definition, means of warfare traditionally has been understood to refer to theeffect of weapons in their use against combatants, while method of warfare refers to the way weapons are used in a
broader sense.”); ICRC AP COMMENTARY 621 (¶1957) (“The term ‘means of combat’ or ‘means of warfare’ (cf.
Article 35 – Basic rules) generally refers to the weapons being used, while the expression ‘methods of combat’generally refers to the way in which such weapons are used.”).
5

See W. Hays Parks, Special Assistant to The Judge Advocate General of the Army for Law of War Matters,
Memorandum of Law: Travaux Preparatoires and Legal Analysis of Blinding Laser Weapons Protocol, reprinted in
THE ARMY LAWYER 33, 35 (Jun. 1997) (“Thus, means considers the legality of the way in which a projectile or its
fragments, for example, kill or injure combatants. As an illustration, Protocol I of the UNCCW makes the use offragments not detectable by X-ray a prohibited means of warfare. In contrast, method weighs the way in which
weapons may be employed, particularly where employment may have an adverse effect on civilians not taking a
direct part in the hostilities.”).
6Refer to § 6.16.2 (Prohibition on Use of Riot Control Agents as a Method of Warfare).

185

Military Operations. The law of war rules for the conduct of hostilities have been implemented
during military operations through rules of engagement and other military orders. 7
5.1.2.1 Applying Standards in the Conduct of Hostilities That Pose More
Restrictions on Military Operations and That Are More Protective of Civilians Than Required
By the Law of War. U.S. military operations are routinely subject to more restrictions and apply
standards that are more protective of civilians than required by the law of war. 8 For example,
military commanders often seek to reduce the risk of civilian casualties by taking additional
precautions even when such measures are not required by the law of war. 9 Similarly, there arecases in which, for military or policy reasons, an attack is not conducted, even though the attack
would be legally permissible. 10
As with other cases in which a higher standard is applied as a matter of policy, violationsof such standards are not necessarily violations of the law of war. 11
5.1.2.2 Applicability of International Obligations to Persons With the Domestic
Authority to Implement the Obligations. As with other aspects of the law of war, the persons

7

Refer to § 1.6.5 (Rules of Engagement (ROE)); § 18.7 (Instructions, Regulations, and Procedures to Implement andEnforce the Law of War).
8

For example, Executive Order 13732, United States Policy on Pre- and Post-Strike Measures To Address Civilian
Casualties in U.S. Operations Involving the Use of Force, 81 FEDERAL REGISTER 44485, § 1 (Jul. 1, 2016) (“Theprotection of civilians is fundamentally consistent with the effective, efficient, and decisive use of force in pursuit ofU.S. national interests. Minimizing civilian casualties can further mission objectives; help maintain the support ofpartner governments and vulnerable populations, especially in the conduct of counterterrorism andcounterinsurgency operations; and enhance the legitimacy and sustainability of U.S. operations critical to ournational security. As a matter of policy, the United States therefore routinely imposes certain heightened policy
standards that are more protective than the requirements of the law of armed conflict that relate to the protection ofcivilians.”).
9

For example, Brian Egan, Legal Adviser, Department of State, Remarks to the American Society of International
Law: International Law, Legal Diplomacy, and the Counter-ISIL Campaign, Apr. 1, 2016 (“As a matter ofinternational law, the United States is bound to adhere to the law of armed conflict. In many cases, the United States
imposes standards on its direct action operations that go beyond the requirements of the law of armed conflict. For
example, the U.S. military may impose an upper limit as a matter of policy on the anticipated number of noncombatant casualties that is much lower than that which would be lawful under the rule that prohibits attacks that are
expected to cause excessive incidental harm.”).
10

For example, FINAL REPORT ON THE PERSIAN GULF WAR 615 (“Similar actions were taken by the Government of
Iraq to use cultural property to protect legitimate targets from attack; a classic example was the positioning of two
fighter aircraft adjacent to the ancient temple of Ur (as depicted in the photograph in Volume II, Chapter VI, ‘Off
Limits Targets’ section) on the theory that Coalition respect for the protection of cultural property would preclude
the attack of those aircraft. While the law of war permits the attack of the two fighter aircraft, with Iraq bearing
responsibility for any damage to the temple, Commander-in-Chief, Central Command (CINCCENT) elected not toattack the aircraft on the basis of respect for cultural property and the belief that positioning of the aircraft adjacentto Ur (without servicing equipment or a runway nearby) effectively had placed each out of action, thereby limiting
the value of their destruction by Coalition air forces when weighed against the risk of damage to the temple. Other
cultural property similarly remained on the Coalition no-attack list, despite Iraqi placement of valuable militaryequipment in or near those sites.”).
11

Refer to § 18.7.2.3 (Setting Higher Standards as a Matter of Policy).

186

within a party to a conflict who are responsible for implementing an obligation, are those persons
with the authority to make the decisions and judgments required by the law of war. 12
For example, the decisions and judgments required by the principle of proportionality
normally require authority over military operations, and ordinarily would not require military
personnel to take actions, such as providing warnings, when a superior commander has alreadydetermined that such actions are not feasible. 13 As another example, a pilot generally would beentitled to rely on the determination by headquarters that a given target is, in fact, a military
objective. 14
5.1.3 Principles for the Conduct of Hostilities. The principles that provide the foundation
for the law of war are discussed in Chapter II, and these principles apply to the conduct ofhostilities. As noted in Chapter II, specific rules on the conduct of hostilities are derived from,and must be interpreted consistent with, the basic principles that underlie the law of war. 15
Moreover, where no specific rule applies, law of war principles provide a general guide for
conduct during war, including the conduct of hostilities. 16
5.2 OVERVIEW OF RULES FOR THE PROTECTION OF CIVILIANS
The protection of civilians 17 against the harmful effects of hostilities is one of the main
purposes of the law of war. 18 Many of the rules for the protection of civilians are derived fromthe principles of distinction and proportionality. 19 Specific rules for the protection of civilians
may be grouped into two categories: (1) essentially negative duties to respect civilians and torefrain from directing military operations against them; and (2) affirmative duties to take feasible
precautions to protect civilians and other protected persons and objects.
5.2.1 Responsibility of the Party Controlling Civilian Persons and Objects. The party
controlling civilians and civilian objects has the primary responsibility for the protection ofcivilians and civilian objects. 20 The party controlling the civilian population generally has the12

Refer to § 18.3.1.1 (Implementation of International Obligations by Persons With the Authority to Make theNecessary Decisions and Judgments Required by International Law).
13

Refer to § 5.10.2 (Responsibility of Commanders for Implementing the Principle of Proportionality in Conducting
Attacks).
14

ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign
Against the Federal Republic of Yugoslavia, ¶84 (Jun. 13, 2000) (“The building hit was clearly a civilian object andnot a legitimate military objective. … It is the opinion of the committee that the aircrew involved in the attack
should not be assigned any responsibility for the fact they were given the wrong target … .”).
15

Refer to § 2.1.2.1 (Law of War Principles as an Aid in Interpreting and Applying Law of War Rules).

16

Refer to § 2.1.2.2 (Law of War Principles as a General Guide).

17

Refer to § 4.8.1.5 (General Usage of “Civilian” in This Manual).

18

Refer to § 1.3.4 (Purposes of the Law of War).

19

Refer to § 2.5 (Distinction); § 2.4 (Proportionality).

20

See J. Fred Buzhardt, General Counsel, Department of Defense, Letter to Senator Edward Kennedy, Sept. 22,
1972, reprinted in 67 AJIL 122 (1973) (“A summary of the laws of armed conflict, in the broadest terms, reveals
certain general principles including the following: … (c). That a distinction must be made at all times between

187

greater opportunity to minimize risk to civilians. 21 Civilians also may share in the responsibility
to take precautions for their own protection. 22 For example, civilians may decide to takemeasures for their own protection upon receiving a warning to stay away from military
objectives. 23
5.2.2 Essentially Negative Duties to Respect Civilians and to Refrain From Directing
Military Operations Against Them. In general, military operations must not be directed against
enemy civilians. 24 In particular:•

Civilians must not be made the object of attack; 25•

Military objectives may not be attacked when the expected incidental loss of civilian life,

persons taking part in the hostilities and members of the civilian population to the effect that the civilians be sparedas much as possible. … The principle in (c) addresses primarily the Party exercising control over members of thecivilian population.”); BOTHE, PARTSCH, & SOLF, NEW RULES 284 (AP I art. 48, ¶2.2) (explaining that “an important
share of the responsibility for implementing the principle of distinction rests on the Party which controls the civilian
population.”); United States, Statement on Ratification of the 1954 Hague Cultural Property Convention, Mar. 13,
2009, 2575 UNTS 7, 8 (“It is the understanding of the United States of America that, as is true for all civilian
objects, the primary responsibility for protection of cultural objects rests with the party controlling that property, toensure that it is properly identified and that it is not used for an unlawful purpose.”).
21

FINAL REPORT ON THE PERSIAN GULF WAR 614 (“In the effort to minimize collateral civilian casualties, asubstantial responsibility for protection of the civilian population rests with the party controlling the civilian
population. Historically, and from a common sense standpoint, the party controlling the civilian population has theopportunity and the responsibility to minimize the risk to the civilian population through the separation of military
objects from the civilian population, evacuation of the civilian population from near immovable military objects, anddevelopment of air raid precautions. Throughout World War II, for example, both Axis and Allied nations took eachof these steps to protect their respective civilian populations from the effects of military operations.”).

22

U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability ofInternational Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 1991-1999 2057, 2063 (“The obligation of distinguishing combatants and military objectives
from civilians and civilian objects is a shared responsibility of the attacker, defender, and the civilian population as
such. An attacker must exercise reasonable precautions to minimize incidental or collateral injury to the civilian
population, consistent with mission accomplishment and allowable risk to the attacking force. A defender must
exercise reasonable precaution to separate the civilian population and civilian objects from military objectives.
Civilians must exercise reasonable precaution to remove themselves from the vicinity of military objectives or
military operations. The force that has control over the civilians has an obligation to place them in a safe place.”);Brigadier General George B. Davis, Working Memoranda (Confidential for the United States Delegates): The
Second Peace Conference (Paragraph 2 of Programme), The Rules of War on Land, 28 (1907) (“It seems hardly
necessary to say, however, that if any defense is attempted or if a town is occupied or held by the armed forces ofthe enemy, it ceases to be undefended and, for that reason, may be attacked or fired upon. The inhabitants of such aplace, so soon as a garrison is established or military defense is attempted, become charged with the knowledge thatthe town is defended and, as such, liable to attack, and, if they desire to secure an immunity from acts of war, should
remove their families and belongings from the zone of active military operations.”).
23

Refer to § 5.11.5 (Effective Advance Warning Before an Attack That May Affect the Civilian Population).

24

Consider AP I art. 48 (“In order to ensure respect for and protection of the civilian population and civilian objects,
the Parties 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.”).

25

Refer to § 5.5.2 (Persons, Objects, and Locations That Are Protected From Being Made the Object of Attack).

188

injury to civilians, and damage to civilian objects would be excessive in relation to theconcrete and direct military advantage expected to be gained; 26•

Civilians must not be used as shields or as hostages; 27 and•Measures of intimidation or terrorism against the civilian population are prohibited,
including acts or threats of violence, the primary purpose of which is to spread terror
among the civilian population. 28

5.2.2.1 Non-Violent Measures That Are Militarily Necessary. The principle thatmilitary operations must not be directed against civilians does not prohibit military operations
short of violence that are militarily necessary. For example, such operations may include:26•

stopping and searching civilians for weapons and to verify that they are civilians; 29•

temporarily detaining civilians for reasons of mission accomplishment, self-defense, orfor their own safety; 30

Refer to § 5.12 (Proportionality – Prohibition on Attacks Expected to Cause Excessive Incidental Harm).

27

Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military
Operations).
28

Refer to § 10.5.3.2 (Collective Penalties and Measures of Intimidation or Terrorism).

29

For example, 101st Airborne ROE Card, Iraq (2003), reprinted in CENTER FOR LAW AND MILITARY OPERATIONS,THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, I LEGAL LESSONS LEARNED FROM
AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS (11 SEPTEMBER 2001 - 1 MAY 2003) 315 (2004) (“You may
stop civilians and check their identities, search for weapons and seize any found.”). Compare § 10.6.1 (General
Authority of a Belligerent to Search and Secure Protected Persons and Their Property).
30

For example, Detainee Review Procedures at Bagram Theater Internment Facility (BTIF), Afghanistan, enclosure
to Phillip Carter, Deputy Assistant Secretary of Defense for Detainee Policy, Letter to Chairman Carl Levin, Jul. 14,
2009 (“(U) U.S. Forces operating under Operation Enduring Freedom (OEF) authority are authorized to detain
persons temporarily, consistent with the laws and customs of war (e.g., in self-defense or for force protection).”);
Coalition Forces Land Component Command (CFLCC) Rules of Engagement (ROE) Card, Iraq (2003), reprinted in
CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S.
ARMY, I LEGAL LESSONS LEARNED FROM AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS (11 SEPTEMBER
2001 - 1 MAY 2003) 314 (2004) (“Detain civilians if they interfere with mission accomplishment or if required for
self-defense.”); 101st Airborne ROE Card, Iraq (2003), reprinted in CENTER FOR LAW AND MILITARY OPERATIONS,THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, I LEGAL LESSONS LEARNED FROM
AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS (11 SEPTEMBER 2001 - 1 MAY 2003) 315 (2004) (“Detain
civilians when necessary to accomplish your mission or for their own safety.”); CENTER FOR LAW AND MILITARYOPERATIONS, THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, LAW AND MILITARYOPERATIONS IN KOSOVO, 1999-2001: LESSONS LEARNED FOR JUDGE ADVOCATES 102-03 (2001) (“Based on the
KFOR [Kosovo Force] guidance, Task Force Falcon instructed U.S. soldiers and Marines to detain persons who
committed criminal misconduct under a familiar standard, the Uniform Code of Military Justice (UCMJ). This was
the standard to be applied during each of the 1,300 patrols that U.S. soldiers conducted per week in Kosovo. Ifsoldiers or Marines witnessed an act that would be a crime under the UCMJ, they arrested the wrongdoer.
COMKFOR and the SRSG augmented crimes under the military code with mission-specific unauthorized acts, suchas weapons, uniform, and curfew violations. Soldiers were also authorized to detain local citizens who wereconsidered a threat to the military or to the overall mission.”).

189

•

collecting intelligence from civilians, including interrogating civilians; 31•

restricting the movement of civilians or directing their movement away from military
operations for their own protection; 32 or•

seeking to influence enemy civilians with propaganda. 33

5.2.2.2 Military Operations Intended to Benefit Civilians. The principle thatmilitary operations not be directed against civilians does not preclude military operations
intended to benefit civilians. Such operations may include humanitarian assistance operations,noncombatant evacuation operations, civil affairs operations, or civil-military operations.
During counter-insurgency operations, military operations to protect civilians and to help obtain
their support may be particularly important. 34
5.2.3 Affirmative Duties to Take Feasible Precautions for the Protection of Civilians andOther Protected Persons and Objects. Parties to a conflict must take feasible precautions to
reduce the risk of harm to the civilian population and other protected persons and objects. 35
Feasible precautions to reduce the risk of harm to civilians and civilian objects must be taken
when planning and conducting attacks. 36 Feasible precautions should be taken to mitigate theburden on civilians when seizing or destroying enemy property. 37 It is specifically provided thatfeasible precautions must be taken in connection with certain types of weapons. 38 Feasible
precautions to reduce the risk of harm to civilians must also be taken by the party subject to31

Refer to § 5.26.2 (Information Gathering).

32

Refer to § 5.14.2 (Removing Civilians and Civilian Objects From the Vicinity of Military Objectives).

33

Refer to § 5.26.1.2 (Propaganda Generally Permissible).

34

Refer to § 17.5.2.1 (Positioning Military Forces Near the Civilian Population to Win Their Support and to ProtectThem).
35

See, e.g., Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States
Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva
Conventions at the Sixth Annual American Red Cross-Washington College of Law Conference on International
Humanitarian Law (Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419,
426-27 (1987) (“We support the principle that all practicable precautions, taking into account military andhumanitarian considerations, be taken in the conduct of military operations to minimize incidental death, injury, anddamage to civilians and civilian objects, and that effective advance warning be given of attacks which may affect thecivilian population, unless circumstances do not permit.”); U.N. GENERAL ASSEMBLY RESOLUTION 2675, Basic
Principles for the Protection of Civilian Populations in Armed Conflict, U.N. Doc. A/8028 (Dec. 9, 1970) (“In the
conduct of military operations, every effort should be made to spare civilian populations from the ravages of war,
and all necessary precautions should be taken to avoid injury, loss or damage to civilian populations.”). Refer to §5.18.4 (Other Feasible Precautions to Reduce the Risk of Harm to Cultural Property).
36

Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk ofHarm to Protected Persons and Objects).
37

Refer to § 5.17.5 (Feasible Precautions Should Be Taken to Mitigate the Burden on Civilians).

38

Refer to § 5.2.3.4 (Requirements to Take Precautions Regarding Specific Weapons).

190

attack. 39
5.2.3.1 Feasible Precautions – Notes on Terminology. Although this manual
primarily uses “feasible,” other adjectives have been used to describe the obligation to takefeasible precautions during armed conflict. The words “practicable,” 40 “reasonable,” 41 “due,” 42
and “necessary” 43 have been used to describe this obligation.
Some sources may distinguish between whether a precaution is “feasible” or“reasonable” or “practical.” 44 It is also possible to use these words interchangeably with one
another, e.g., such that feasible precautions are reasonable precautions. 45

39

Refer to § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party
Subject to Attack).
40

Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on the
Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the
Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 426-27 (1987) (“Wesupport the principle that all practicable precautions, taking into account military and humanitarian considerations,be taken in the conduct of military operations to minimize incidental death, injury, and damage to civilians andcivilian objects, and that effective advance warning be given of attacks which may affect the civilian population,
unless circumstances do not permit.”).
41

See, e.g., U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability ofInternational Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 1991-1999 2057, 2063 (“A defender must exercise reasonable precaution to separate thecivilian population and civilian objects from military objectives.”); 1956 FM 27-10 (Change No. 1 1976) ¶41(“Those who plan or decide upon an attack, therefore, must take all reasonable steps to ensure not only that theobjectives are identified as military objectives or defended places within the meaning of the preceding paragraph but
also that these objectives may be attacked without probable losses in lives and damage to property disproportionate
to the military advantage anticipated.”); Neville Chamberlain, Prime Minster, United Kingdom, Statement before theHouse of Commons, Jun. 21, 1938, HANSARD, 337 HOUSE OF COMMONS DEBATES §§ 937 (“[R]easonable care must
be taken in attacking those military objectives so that by carelessness a civilian population in the neighbourhood is
not bombed.”).
42

United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065
UNTS 128, 129 (“The United States reserves the right to use other devices (as defined in Article 2(5) of theAmended Mines Protocol) to destroy any stock of food or drink that is judged likely to be used by an enemy militaryforce, if due precautions are taken for the safety of the civilian population.”).
43

U.N. GENERAL ASSEMBLY RESOLUTION 2675, Basic Principles for the Protection of Civilian Populations in
Armed Conflict, U.N. Doc. A/8028 (Dec. 9, 1970) (“In the conduct of military operations, every effort should bemade to spare civilian populations from the ravages of war, and all necessary precautions should be taken to avoid
injury, loss or damage to civilian populations.”); HAGUE IX art. 5 (“In bombardments by naval forces all thenecessary measures must be taken by the commander to spare as far as possible sacred edifices, buildings used for
artistic, scientific, or charitable purposes, historic monuments, hospitals, and places where the sick or wounded arecollected, on the understanding that they are not used at the same time for military purposes.”).
44

ICRC AP COMMENTARY 688 (¶2230) (“It should be noted that ‘all reasonable precautions’ must be taken, whichis undoubtedly slightly different from and a little less far-reaching than the expression ‘take all feasible
precautions’, used in paragraph 2. As the nuance is tenuous, the purpose of the provision appears to be to reaffirm
the rules that exist to protect civilians in such situations.”).

45

U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability ofInternational Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN

191

Insofar as these words are used to describe the legal obligation to take precautions, thesewords are used as terms of art that do not necessarily take their ordinary meaning and are subject
to a substantial degree of interpretation and discretion in their application to a given
circumstance.
Thus, this manual does not distinguish between, for example, the obligation to take“reasonable” precautions versus the obligation to take “feasible” precautions versus theobligation to take “practical” precautions. This manual uses “feasible” to mean the standard of
precautions that are required by the law of war, and that standard is explained in more detail inthis section.
Some sources describe the obligation to take precautions as one in which “all feasible”
precautions must be taken or that “everything feasible” must be done. Stating the requirement interms of “all feasible” precautions could entail articulating a narrower interpretation of what is
considered “feasible” rather than articulating a difference in what the law ultimately requires. In
any event, as discussed below, the obligation to take feasible precautions does not require
everything that is capable of being done – a standard that would be almost impossible to meet ifinterpreted literally and that is inconsistent with the definition of feasible precautions thatprovides for taking into account humanitarian and military considerations. In addition, the factthat a precaution was taken does not necessarily mean that taking the precaution was required asa matter of law.
5.2.3.2 What Precautions Are Feasible. The standard for what precautions must
be taken is one of due regard or diligence, not an absolute requirement to do everything
possible. 46 A wanton disregard for civilian casualties or harm to other protected persons andobjects is clearly prohibited. 47
Feasible precautions are those that are practicable or practically possible, taking into
account all circumstances ruling at the time, including humanitarian and military

INTERNATIONAL LAW 1991-1999 2057, 2063 (“‘Feasible precautions’ are reasonable precautions, consistent withmission accomplishment and allowable risk to attacking forces.”).
46

See also Neville Chamberlain, Prime Minster, United Kingdom, Statement before the House of Commons, Jun. 21,
1938, HANSARD, 337 HOUSE OF COMMONS DEBATES §§ 937-939 (“[R]easonable care must be taken in attacking
those military objectives so that by carelessness a civilian population in the neighbourhood is not bombed. … I say
that reasonable care must be taken, in attacking military objectives, not to go outside those objectives, but it isextremely difficult in practice to determine whether in fact the dropping of bombs which have killed civilians in theneighbourhood of military objectives is the result of want of care or not. Suppose a man makes a bad shot, which is
not at all unlikely when machines are going at over 300 miles an hour and when, as I am informed, in taking aim
you have to release the bomb miles away from its objective—it seems to me that it is extremely difficult to lay down
exactly the point at which reasonable care turns into unreasonable want of care.”).
47

U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability ofInternational Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 1991-1999 2057, 2064 (“While it is difficult to weigh the possibility of collateral civilian
casualties on a target-by-target basis, minimization of collateral civilian casualties is a continuing responsibility at
all levels of the targeting process. Combat is a give-and-take between attacker and defender, and collateral civilian
casualties are likely to occur notwithstanding the best efforts of either party. What is prohibited is wanton disregard
for possible civilian casualties.”).

192

considerations. 48 These circumstances may include:•

the effect of taking the precaution on mission accomplishment; 49•

whether taking the precaution poses a risk to one’s own forces or presents other security
risks;•

the likelihood and degree of humanitarian benefit from taking the precaution;•

the cost of taking the precaution, in terms of time, money, or other resources; or•whether taking the precaution forecloses alternative courses of action.

For example, a commander may determine that a precaution would not be feasible
because it would result in increased operational risk (i.e., a risk of failing to accomplish the48

See CCW PROTOCOL III ON INCENDIARY WEAPONS art. 1(5) (“‘Feasible precautions’ are those precautions which
are practicable or practically possible taking into account all circumstances ruling at the time, including
humanitarian and military considerations.”); CCW AMENDED MINES PROTOCOL art. 3(10) (“Feasible precautions arethose precautions which are practicable or practically possible taking into account all circumstances ruling at thetime, including humanitarian and military considerations.”); CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR
art. 5(1) (“Feasible precautions are those precautions which are practicable or practicably possible, taking into
account all circumstances ruling at the time, including humanitarian and military considerations.”). Cf. United
Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 76 (“The United Kingdom understands
the term ‘feasible’ as used in the Protocol to mean that which is practicable or practically possible, taking into
account all circumstances ruling at the time, including humanitarian and military considerations.”); Canada,
Statement on Ratification of AP I, Nov. 20, 1990, 1591 UNTS 462, 464 (“It is the understanding of the Governmentof Canada that, in relation to Articles 41, 56, 57, 58, 78 and 86 the [word] ‘feasible’ means that which is practicableor practically possible, taking into account all circumstances ruling at the time, including humanitarian and militaryconsiderations.”); Germany, Statement on Ratification of AP I, Feb. 14, 1991, 1607 UNTS 526, 529 (“The Federal
Republic of Germany understands the word ‘feasible’ in Articles 41, 56, 57, 58, 78 and 86 of Additional Protocol I
to mean that which is practicable or practically possible, taking into account all circumstances ruling at the time
including humanitarian and military considerations.”); Netherlands, Statement on Ratification of AP I, Jun. 26, 1987,
1477 UNTS 300 (“With regard to Article 41, paragraph 3, Article 56, paragraph 2, Article 57, paragraph 2, Article
58, Article 78, paragraph 1, and Article 86, paragraph 2 of Protocol I: It is the understanding of the Government of
the Kingdom of the Netherlands that the word ‘feasible’ means that which is practicable or practically possible,
taking into account all circumstances ruling at the time, including humanitarian and military considerations.”).
49

VI OFFICIAL RECORDS OF THE CDDH 241 (CDDH/SR.42, Explanations of Vote: United States) (“It is theunderstanding of the United States Government that the word ‘feasible’ when used in draft Protocol I, for example
in Articles 50 and 51, refers to that which is practicable or practically possible, taking into account all circumstancesat the time, including those relevant to the success of military operations.”); VI OFFICIAL RECORDS OF THE CDDH
226 (CDDH/SR.42, Explanations of Vote: Germany) (“Finally, we interpret the word ‘feasible’ [in draft article 50
of Protocol I] as meaning what is practicable or practically possible, taking into account all circumstances at thetime, including those relevant to the success of military operations.”); VI OFFICIAL RECORDS OF THE CDDH 211(CDDH/SR.42, ¶41) (“Mr. Soysal (Turkey) said that as far as his delegation was concerned, the word ‘feasible’ in
Article 50 and other articles should be interpreted as related to what was practicable, taking into account all thecircumstances at the time and those relevant to the success of military operations.”); VI OFFICIAL RECORDS OF THE
CDDH 224 (CDDH/SR.42, Explanations of Vote: Canada) (“It is the understanding of the Canadian delegation thatthe word ‘feasible’, when used in this Protocol, for example, in Articles 50 and 51, refers to that which is practicableor practically possible, taking into account all circumstances existing at the relevant time, including thosecircumstances relevant to the success of military operations.”).

193

mission) or an increased risk of harm to his or her forces. 50
Similarly, taking a precaution would not be required if it is assessed not to yield ahumanitarian benefit. For example, issuing a warning before an attack would not be required
when only military objectives are expected to be harmed and civilians are not present. 51
Moreover, it would not be required to use distinctive emblems to identify civilians and civilian
objects as such, if enemy forces are likely to use that information to direct attacks against thosecivilians and civilian objects. 52
Since what precautions are feasible depends greatly on the context and other militaryconsiderations, 53 it would be inaccurate to conclude that specific precautions are required as a
general rule. For example, there is not a general requirement to use precision-guided
munitions. 54 Nonetheless, military commanders must make reasonable efforts to reduce the riskof harm to civilians and civilian objects.
5.2.3.3 The Taking of Precautions and Law, Policy, and Practice. There may bequestions about the extent to which precautions are legally required or are instead policy
decisions.
The obligation to take feasible precautions is a legal requirement. However, thedetermination of whether a precaution is feasible involves significant policy, practical, andmilitary judgments, which are committed to the responsible commander to make in good faith
based on the available information. In assessing whether the obligation to take feasible
precautions has been satisfied after the fact, it will be important to assess the situation that thecommander confronted at the time of the decision and not to rely on hindsight.
As discussed above, it is not the case that the legal requirement to take feasible
precautions requires whatever may be done. Rather, it is possible for precautions to be taken, asa matter of practice or policy, that are not required as a matter of law, and the U.S. military
frequently has done so.
50

U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability ofInternational Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 1991-1999 2057, 2063 (“‘Feasible precautions’ are reasonable precautions, consistent withmission accomplishment and allowable risk to attacking forces. While collateral damage to civilian objects should
be minimized, consistent with the above, collateral damage to civilian objects should not be given the same level ofconcern as incidental injury to civilians. Measures to minimize collateral damage to civilian objects should notinclude steps that will place U.S. and allied lives at greater or unnecessary risk.”).
51

Refer to § 5.11.5 (Effective Advance Warning Before an Attack That May Affect the Civilian Population).

52

Refer to § 5.14.4 (Using Distinctive and Visible Signs to Identify Protected Persons and Objects as Such).

53

See, e.g., VI OFFICIAL RECORDS OF THE CDDH 231 (CDDH/SR.42, Explanations of Vote: Italy) (“In several
places Article 50 speaks of taking all ‘feasible’ precautions. This term is basic to the whole structure of Article 50.
It indicates that the obligations it imposes are conditional on the actual circumstances really allowing the proposed
precautions to be taken, on the basis of the available information and the imperative needs of national defence. I
would like to emphasize that all the foregoing comments relate to all the articles in the section of the Protocol
concerned, in particular Article 46 as regards the military advantage expected and Articles 46 and 51 as regards themeaning of the word ‘feasible’.”).
54

Refer to § 5.11.6 (Weaponeering (E.g., Selecting Appropriate Weapons, Aim Points)).

194

In this connection, it should also be noted that mere poor military judgment (such as
mistakes or accidents in conducting attacks that result in civilian casualties) is not by itself aviolation of the obligation to take precautions.
5.2.3.4 Requirements to Take Precautions Regarding Specific Weapons. In
addition to the general obligation to take feasible precautions to reduce the risk of harm to thecivilian population and other protected persons and objects, it is specifically provided that
precautions be taken in connection with certain types of weapons:•mines, booby-traps, or other devices; 55•

incendiary weapons; 56•

laser systems; 57 and•explosive ordnance. 58

5.2.3.5 AP I Obligation to Take Constant Care to Spare Civilians and Civilian
Objects. Parties to AP I have agreed that “[i]n the conduct of military operations, constant careshall be taken to spare the civilian population, civilians and civilian objects.” 59 Although thisobligation is susceptible to a range of interpretations, Parties to AP I may also interpret it in amanner that is consistent with the discussion in this section.
5.3 ASSESSING INFORMATION UNDER THE LAW OF WAR
Commanders and other decision-makers must make decisions in good faith and based on
the information available to them. Even when information is imperfect or lacking (as will
frequently be the case during armed conflict), commanders and other decision-makers may direct
and conduct military operations, so long as they make a good faith assessment of the informationthat is available to them at that time. 60
5.3.1 Law of War Rules Often Depend on Difficult Factual Assessments. Many of therules for the conduct of hostilities require determinations of fact that may be difficult to make.
The special circumstances of armed conflict often make an accurate determination of55

Refer to § 6.12.5.3 (Obligation to Take Feasible Precautions to Protect Civilians From the Effects of Mines,
Booby-Traps, and Other Devices).
56

Refer to § 6.14.3 (Restrictions on the Use of Incendiary Weapons).

57

Refer to § 6.15.2 (Feasible Precautions in the Employment of Laser Systems to Avoid the Incident of Permanent
Blindness).
58

Refer to § 6.19.2 (Using Explosive Ordnance); § 6.19.3 (Abandoning Explosive Ordnance).

59

AP I art. 57(1).

60
APPENDIX TO 1985 CJCS MEMO ON AP I 52 (“Commanders and other military personnel who make decisions in
the fog of war must do so in good faith and on the basis of whatever information they have available at the time.
Such decisions will almost never be free of ‘doubt,’ either subjective or objective.”).

195

facts very difficult. 61 For example, combatants must make decisions while enemy forces areattempting to attack them 62 and while enemy forces are seeking to deceive them. 63 In addition,
the importance of prevailing during armed conflict 64 often justifies taking actions based upon
limited information that would be considered unreasonable outside armed conflict. 65
Thus, for example, it may be difficult to discern whether a person is a combatant, acivilian, or a civilian taking a direct part in hostilities. Similarly, it may be difficult to assess thedegree to which an object makes an effective contribution to the adversary’s military action or toassess the concrete and direct military advantage anticipated from an attack.
5.3.2 Decisions Must Be Made in Good Faith and Based on Information Available at theTime. Decisions by military commanders or other persons responsible for planning, authorizing,or executing military action must be made in good faith and based on their assessment of theinformation available to them at the time. 66 A large number of States have recognized thisprinciple. 67 This principle has also been reflected in the decisions of courts assessing individual
61

Refer to § 1.4.2.2 (Nature of War – Limited and Unreliable Information – “Fog of War”).

62

Cf. Brown v. United States, 256 U.S. 335, 343 (1921) (“Detached reflection cannot be demanded in the presenceof an uplifted knife. Therefore in this Court, at least, it is not a condition of immunity that one in that situation
should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his
assailant rather than to kill him.”).

63

Refer to § 5.25 (Ruses of War and Other Lawful Deceptions).

64

Refer to § 1.4.1 (Object of War).

65

Korematsu v. United States, 323 U.S. 214, 244 (1944) (Jackson, J., dissenting) (“The very essence of the military
job is to marshal physical force, to remove every obstacle to its effectiveness, to give it every strategic advantage.
Defense measures will not, and often should not, be held within the limits that bind civil authority in peace. No
court can require such a commander in such circumstances to act as a reasonable man; he may be unreasonably
cautious and exacting. Perhaps he should be.”).
66

See United States, Statement on Consent to Be Bound by CCW Protocol III on Incendiary Weapons, Jan. 21, 2009,
2562 UNTS 36, 37 (“[A]ny decision by any military commander, military personnel, or any other person responsible
for planning, authorizing or executing military action shall only be judged on the basis of that person’s assessmentof the information reasonably available to the person at the time the person planned, authorized, or executed theaction under review, and shall not be judged on the basis of information that comes to light after the action underreview was taken.”).

67

See, e.g., Australia, Statement on Ratification of AP I, Jun. 21, 1991, 1642 UNTS 473 (“In relation to Articles 51
to 58 inclusive it is the understanding of Australia that military commanders and others responsible for planning,
deciding upon, or executing attacks, necessarily have to reach their decisions on the basis of their assessment of theinformation from all sources, which is available to them at the relevant time.”); Austria, Statement on Ratification of
AP I, Feb. 13, 1983, 1289 UNTS 303 (“Article 57, paragraph 2, of Protocol I shall be applied to the extent that, forany decision taken by a military commander, the information actually available at the time of the decision is thedetermining factor.”); Canada, Statement on Ratification of AP I, Nov. 20, 1990, 1591 UNTS 462, 464 (“It is theunderstanding of the Government of Canada that, in relation to Articles 48, 51 to 60 inclusive, 62 and 67, militarycommanders and others responsible for planning, deciding upon or executing attacks have to reach decisions on thebasis of their assessment of the information reasonably available to them at the relevant time and that such decisions
cannot be judged on the basis of information which has subsequently come to light.”); Italy, Statement on
Ratification of AP I, Feb. 27, 1986, 1425 UNTS 438, 439 (“In relation to Articles 51 to 58 inclusive, the ItalianGovernment understands that military commanders and others responsible for planning, deciding upon or executing
attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources whichis available to them at the relevant time.”); Netherlands, Statement on Ratification of AP I, Jun. 26, 1987, 1477
UNTS 300 (“With regard to Articles 51 to 58 inclusive of Protocol I: It is the understanding of the Government of196

responsibility under the law of war, which have declined to second-guess military decisions withthe benefit of hindsight. 68
The requirement that military commanders and other decision-makers make decisions ingood faith based on the information available to them recognizes that decisions may be madewhen information is imperfect or lacking, which will often be the case during armed conflict.
5.4 RULES ON CONDUCTING ASSAULTS, BOMBARDMENTS, AND OTHER ATTACKS
Combatants may conduct assaults, bombardments, and other attacks, but a number ofrules apply to these operations.
5.4.1 Notes on Terminology – Protection From “Attack As Such,” “Being Made the
Object of Attack,” “Direct Attack,” and “Intentional Attack” Versus Protection From“Incidental” or “Collateral” Harm. A variety of formulations have been commonly used to
distinguish between: (1) the protection from being made the object of attack (i.e., the attack is
purposefully directed against that person or object) and (2) the protection from the incidental
effects of an attack (i.e., the object or person is not the object of the attack, but is collaterally
harmed by the attack).
These situations are treated quite differently under the law of war. 69 In the former case, it
the Kingdom of the Netherlands that military commanders and others responsible for planning, deciding upon or
executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all
sources which is available to them at the relevant time;”); Spain, Statement on Ratification of AP I, Apr. 21, 1989,
1537 UNTS 389, 392 (“It is understood that decisions by military authorities or others with legal powers to plan or
carry out attacks which might affect civilian personnel goods or other effects, necessarily shall not be made on any
basis other than that of relevant information available at the time in question and obtained for that purpose.”);Switzerland, Statement on Ratification of AP I, Feb. 17, 1982, 1271 UNTS 409 (“The provisions of article 57,
paragraph 2, create obligations only for battalion or group commanders and higher-echelon commanders. The
information available to the commanders at the time of the decision shall be the determining factor.”); United
Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 76 (“Military commanders and others
responsible for planning, deciding upon, or executing attacks necessarily have to reach decisions on the basis of theirassessment of the information from all sources which is reasonably available to them at the relevant time.”).
68

United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1295-96 (“Itwas with this situation confronting him that he [the defendant, Rendulic] carried out the ‘scorched earth’ policy in
the Norwegian province of Finmark which provided the basis for this charge [of wanton destruction of property] of
the indictment. … There is evidence in the record that there was no military necessity for this destruction anddevastation. An examination of the facts in restrospect can well sustain this conclusion. But we are obliged to judge
the situation as it appeared to the defendant at the time. If the facts were such as would justify the action by theexercise of judgment, after giving consideration to all the factors and existing possibilities, even though theconclusion reached may have been faulty, it cannot be said to be criminal.”).
69

See, e.g., United States v. Ohlendorf, et al. (The Einsatzgruppen Case), IV TRIALS OF WAR CRIMINALS BEFORE
THE NMT 411, 467 (“A city is bombed for tactical purposes; communications are to be destroyed, railroads wrecked,
ammunition plants demolished, factories razed, all for the purpose of impeding the military. In these operations it
inevitably happens that nonmilitary persons are killed. This is an incident, a grave incident to be sure, but an
unavoidable corollary of battle action. The civilians are not individualized. The bomb falls, it is aimed at therailroad yards, houses along the tracks are hit and many of their occupants killed. But that is entirely different, bothin fact and in law, from an armed force marching up to these same railroad tracks, entering those houses abutting
thereon, dragging out the men, women, and children and shooting them.”).

197

is often said that protected persons and objects are protected “as such,” 70 from “direct attack,” 71from “intentional attack,” 72 “from attack directed exclusively against them,” 73 or from being
made the “object of attack.” 74 Sometimes a combination of these formulations has been used.
In some cases, a text may not use any qualification (e.g., “direct attack” or “as such,”),but is understood to refer only to the first category of protection. For example, Article 52 of AP
I provides that “[a]ttacks shall be limited strictly to military objectives.” 75 However, this article
has been understood to comprise only an obligation not to direct attacks against civilian objects
and not to address the question of incidental harm resulting from attacks directed against military
objectives. 76
This manual generally uses the phrase “object of attack” to convey the idea that the attack
is being purposefully directed against that person or object.
This manual generally uses the term “incidental harm” to refer to the death or injury tocivilians, or the destruction of or damage to civilian objects, that is incidentally (but potentiallyknowingly) caused as a collateral consequence of an attack directed against a military
objective. 77
5.4.2 Overview of Rules in Conducting Attacks. Parties to a conflict must conductattacks in accordance with the principles of distinction and proportionality. In particular, thefollowing rules must be observed:

70

See, e.g., 1956 FM 27-10 (Change No. 1 1976) ¶40a (“Customary international law prohibits the launching of
attacks (including bombardment) against either the civilian population as such or individual civilians as such.”)(emphasis added).
71

2004 UK MANUAL ¶5.3.2 (“A civilian is a non-combatant. He is protected from direct attack and is to beprotected against dangers arising from military operations.”) (emphasis added).
72

Department of Defense, Report to the Senate and House Appropriations Committees regarding international
policies and procedures regarding the protection of natural and cultural resources during times of war, Jan. 19,
1993, reprinted as Appendix VIII in Patrick J. Boylan, Review of the Convention for the Protection of Cultural
Property in the Event of Armed Conflict (The Hague Convention of 1954) 201, 204 (1993) (“Like any civilian
object, cultural property is protected from intentional attack so long as it is not used for military purposes, or toshield military objectives from attack.”).
73

See, e.g., 1956 FM 27-10 (Change No. 1 1976) ¶25 (“However, it is a generally recognized rule of international
law that civilians must not be made the object of attack directed exclusively against them.”) (emphasis added).
74

AP I art. 51(2) (“The civilian population as such, as well as individual civilians, shall not be the object of attack.”)(emphasis added).
75

AP I art. 52(2).

76See, e.g., United Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 77 (“The first
sentence of paragraph 2 prohibits only such attacks as may be directed against non-military objectives; it does notdeal with the question of collateral damage resulting from attacks directed against military objectives.”); Canada,
Statement on Ratification of AP I, Nov. 20, 1990, 1591 UNTS 462, 465 (“The first sentence of paragraph 2 of the
Article is not intended to, nor does it, deal with the question of incidental or collateral damage resulting from anattack directed against a military objective.”).
77

Refer to § 5.12 (Proportionality – Prohibition on Attacks Expected to Cause Excessive Incidental Harm).

198

•

Combatants may make military objectives the object of attack, but may not direct attacks
against civilians, civilian objects, or other protected persons and objects. 78•

Combatants must refrain from attacks in which the expected loss of life or injury tocivilians, and damage to civilian objects incidental to the attack, would be excessive in
relation to the concrete and direct military advantage expected to be gained. 79•

Combatants must take feasible precautions in planning and conducting attacks to reduce
the risk of harm to civilians and other persons and objects protected from being made theobject of attack. 80•

In conducting attacks, combatants must assess in good faith the information that isavailable to them. 81•

Combatants may not kill or wound the enemy by resort to perfidy. 82•

Specific rules apply to the use of certain types of weapons. 83

5.4.3 Assessing Information in Conducting Attacks. Persons who plan, authorize, ormake other decisions in conducting attacks must make the judgments required by the law of war
in good faith and on the basis of information available to them at the time. 84 For example, acommander must, on the basis of available information, determine in good faith that a target is amilitary objective before authorizing an attack against that target. Similarly, the expected
incidental damage to civilians or civilian objects must be assessed in good faith, given theinformation available to the commander at the time.
In making the judgments that are required by the law of war rules governing attacks,
persons may rely on information obtained from other sources, including human intelligence orother sources of information. 85 For example, in a long-distance attack, a commander may rely
on information obtained from aerial reconnaissance and intelligence units in determining

78

Refer to § 5.5 (Discrimination in Conducting Attacks).

79

Refer to § 5.12 (Proportionality – Prohibition on Attacks Expected to Cause Excessive Incidental Harm).

80

Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk ofHarm to Protected Persons and Objects).
81

Refer to § 5.4.3 (Assessing Information in Conducting Attacks).

82

Refer to § 5.22 (Treachery or Perfidy Used to Kill or Wound).

83

Refer to § 6.5.1 (Certain Types of Weapons With Specific Rules on Use).

84

Refer to § 5.3 (Assessing Information Under the Law of War).

85

ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign
Against the Federal Republic of Yugoslavia, ¶84 (Jun. 13, 2000) (“The building hit was clearly a civilian object andnot a legitimate military objective. … It is the opinion of the committee … that it is inappropriate to attempt toassign criminal responsibility for the incident to senior leaders because they were provided with wrong information
by officials of another agency.”).

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whether to conduct an attack. 86
5.4.3.1 Heightened Identification Requirements in Conducting Attacks. Although
doing so would impose greater restrictions than the requirements of the law of war, applying
heightened standards of identification may be a policy choice to reduce the risk of incidental
harm in conducting an attack. 87
5.4.3.2 AP I Presumptions in Favor of Civilian Status in Conducting Attacks. In
the context of conducting attacks, certain provisions of AP I reflect a presumption in favor ofcivilian status in cases of doubt. Article 52(3) of AP I provides that “[i]n case of doubt whether
an object which is normally dedicated to civilian purposes, such as a place of worship, a house orother dwelling or a school, is being used to make an effective contribution to military actions, it
shall be presumed not to be so used.” 88 Article 50(1) of AP I provides that “[i]n case of doubt
whether a person is a civilian, that person shall be considered to be a civilian.”
Under customary international law, no legal presumption of civilian status exists for
persons or objects, nor is there any rule inhibiting commanders or other military personnel from86

ICRC AP COMMENTARY 681 (¶2195) (“In the case of long-distance attacks, information will be obtained inparticular from aerial reconnaissance and from intelligence units, which will of course attempt to gather information
about enemy military objectives by various means.”).

87

For example, The White House, Office of the Press Secretary, Fact Sheet: U.S. Policy Standards and Proceduresfor the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities, May
23, 2013 (In counterterrorism operations, “lethal force will be used outside areas of active hostilities only when thefollowing preconditions are met: … Third, the following criteria must be met before lethal action may be taken: 1)
Near certainty that the terrorist target is present; 2) Near certainty that non-combatants will not be injured or
killed;”); Coalition Forces Land Component Command (CFLCC) Rules of Engagement (ROE) Card, Iraq (2003),
reprinted in CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER &SCHOOL, U.S. ARMY, I LEGAL LESSONS LEARNED FROM AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS(11 SEPTEMBER 2001 - 1 MAY 2003) 314 (2004) (“1. On order, enemy military and paramilitary forces are declared
hostile and may be attacked subject to the following instructions: a. Positive Identification (PID) is required prior to
engagement. PID is a reasonable certainty that the proposed target is a legitimate military target. If no PID, contact
your next higher commander for decision.”); FINAL REPORT ON THE PERSIAN GULF WAR 177 (“Attack procedures
specified that if the pilot could not positively identify his target or was not confident the weapon would guide
properly (because of clouds, for example), he could not deliver that weapon. Several attack sorties were forced toreturn with their bombs for this reason.”); U.S. MILITARY ASSISTANCE COMMAND VIET-NAM DIRECTIVE 525-13,
Military Operations: Rules of Engagement for the Employment of Firepower in the Republic of Vietnam, ¶6a (May1971), reprinted in 1975 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 814, 815 (“All possiblemeans will be employed to limit the risk to the lives and property of friendly forces and civilians. In this respect, atarget must be clearly identified as hostile prior to making a decision to place fire on it.”) (“All possible means will
be employed to limit the risk to the lives and property of friendly forces and civilians. In this respect, a target must
be clearly identified as hostile prior to making a decision to place fire on it.”).
88

AP I art. 52(3). See also BOTHE, PARTSCH, & SOLF, NEW RULES 326 (AP I art. 52, ¶2.5.1) (“It should be notedthat the presumption applies only as to objects which normally do not have any significant military use or purpose.
The committee deleted from the illustrative list proposed by the ICRC in draft Art. 47, the phrase ‘installations andmeans of transport’, thus indicating an intent by the Conference that the presumption should not apply to objects
which are of such a nature that their value to military action in combat situations is probable. Means of transportand of communication fall into a category where their use for military purposes cannot be excluded through apresumption.”).

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acting based on the information available to him or her in doubtful cases. 89 Attacks, however,
may not be directed against civilians or civilian objects based on merely hypothetical or
speculative considerations regarding their possible current status as a military objective. In
assessing whether a person or object that normally does not have any military purpose or use is amilitary objective, commanders and other decision-makers must make the decision in good faith
based on the information available to them in light of the circumstances ruling at the time.
A legal presumption of civilian status in cases of doubt may demand a degree of certainty
that would not account for the realities of war. 90 Affording such a presumption could also
encourage a defender to ignore its obligation to separate military objectives from civilians andcivilian objects. 91 For example, unprivileged belligerents may seek to take advantage of a legal
presumption of civilian status. 92 Thus, there is concern that affording such a presumption likely
would increase the risk of harm to the civilian population and tend to undermine respect for thelaw of war.
In applying AP I rules on “doubt,” some Parties to AP I have interpreted these rules in amore limited way (e.g., applying a “substantial doubt” standard) than AP I’s text would
suggest. 93
5.4.4 Failure by the Defender to Separate or Distinguish Does Not Relieve the Attackerof the Duty to Discriminate in Conducting Attacks. A party that is subject to attack might fail totake feasible precautions to reduce the risk of harm to civilians, such as by separating the civilian
population from military objectives. 94 Moreover, in some cases, a party to a conflict might
89

See, e.g., Christopher Greenwood, Customary international law and the First Geneva Protocol of 1977 in the Gulf
conflict, in PETER ROWE, THE GULF WAR 1990-91 IN INTERNATIONAL AND ENGLISH LAW 63, 75 (1993) (“[I]t is very
doubtful that Article 52(3) represents customary international law.”); BOTHE, PARTSCH, & SOLF, NEW RULES 327(AP I art. 52, ¶2.5.2) (quoting a Rapporteur’s observation at the Diplomatic Conference that a presumption “will bea significant new addition to the law”).
90

Refer to § 1.4.2.2 (Nature of War – Limited and Unreliable Information – “Fog of War”).

91

See FINAL REPORT ON THE PERSIAN GULF WAR 616 (“This language, which is not a codification of the customary
practice of nations, causes several things to occur that are contrary to the traditional law of war. It shifts the burden
for determining the precise use of an object from the party controlling that object (and therefore in possession of thefacts as to its use) to the party lacking such control and facts, i.e., from defender to attacker. This imbalance ignores
the realities of war in demanding a degree of certainty of an attacker that seldom exists in combat. It also
encourages a defender to ignore its obligation to separate the civilian population, individual civilians and civilian
objects from military objectives, as the Government of Iraq illustrated during the Persian Gulf War.”).

92

See APPENDIX TO 1985 CJCS MEMO ON AP I 53 (rejecting the presumption of civilian status in AP I because“[t]his presumption also provides an additional protection for guerillas and other irregulars who may find it
advantageous to be presumed to be a civilian rather than a combatant.”).
93

See, e.g., 2004 UK MANUAL ¶5.3.4 (“In the practical application of the principle of civilian immunity and the ruleof doubt, (a) commanders and others responsible for planning, deciding upon, or executing attacks necessarily haveto reach decisions on the basis of their assessment of the information from all sources which is available to them at
the relevant time, (b) it is only in cases of substantial doubt, after this assessment about the status of the individual inquestion, that the latter should be given the benefit of the doubt and treated as a civilian, and (c) the rule of doubt
does not override the commander’s duty to protect the safety of troops under his command or to preserve themilitary situation.”).

94

Refer to § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party
Subject to Attack).

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attempt to use the presence or movement of the civilian population or individual civilians inorder to shield military objectives from seizure or attack. 95
When enemy persons engage in such behavior, commanders should continue to seek todiscriminate in conducting attacks and to take feasible precautions to reduce the risk of harm tothe civilian population and civilian objects. 96 However, the ability to discriminate and to reduce
the risk of harm to the civilian population likely will be diminished by such enemy conduct. In
addition, such conduct by the adversary does not increase the legal obligations of the attacking
party to discriminate in conducting attacks against the enemy. 97 Violations by the defending
party are not a basis for that party to assert additional legal rights against the attacking party. 98
5.4.5 Permissible Location of Attacks. In general, attacks may be conducted against
military objectives wherever located, outside neutral territory. 99 Attacks, however, may not be
conducted in special zones established by agreement between the belligerents, such as hospital,
safety, or neutralized zones. 100
Attacks on military objectives in the enemy rear or diversionary attacks away from thecurrent theaters or zones of active military operations are lawful. 101 The law of war does not
require that attacks on enemy military personnel or objectives be conducted near ongoingfighting, in a theater of active military operations, or in a theater of active armed conflict. 102

95

Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military
Operations).
96

See FINAL REPORT ON THE PERSIAN GULF WAR 615 (“As correctly stated in Article 51(8) of Protocol I, a nation
confronted with callous actions by its opponent (such as the use of ‘human shields’) is not released from its
obligation to exercise reasonable precaution to minimize collateral injury to the civilian population or damage tocivilian objects. This obligation was recognized by Coalition forces in the conduct of their operations.”).
97

See W. Hays Parks, Air War and the Law of War, 32 AIR FORCE LAW REVIEW 1, 163 (1990) (“While an attacker
facing a target shielded from attack by civilians is not relieved from his duty to exercise reasonable precautions tominimize the loss of civilian life, neither is he obligated to assume any additional responsibility as a result of theillegal acts of the defender. Were an attacker to do so, his erroneous assumption of additional responsibility withregard to protecting the civilians shielding a lawful target would serve as an incentive for a defender to continue toviolate the law of war by exposing other innocent civilians to similar risk.”).

98

See, e.g., Charles J. Dunlap Jr., The DoD Law of War Manual and its Critics: Some Observations, 92 U.S. NAVALWAR COLLEGE INTERNATIONAL LAW STUDIES 99-100 (2016) (“To reward a belligerent for flaunting the LoW [lawof war] in that way is flatly contrary to the principle of international law expressed in the axiom ex injuria non jus
oritur or ‘legal rights should not be understood to result from the commission of wrongful acts.’ … Given that thelaw has proven almost totally impotent in restraining today’s adversaries who routinely violate LoW in exquisitely
barbaric ways, we should be very sensitive to—and resistant of—any reading of the LoW that seems to result inprivileging such lawbreakers because of their lawbreaking.”).
99

Refer to § 15.3.1.2 (Inviolability of Neutral Territory - Prohibition on Hostile Acts or Other Violations of
Neutrality).
100

Refer to § 5.14.3 (Establishing Areas Where Civilians or the Wounded and Sick Are Protected).

101

Refer to § 5.6.7.3 (Definite Military Advantage).

102

John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, Speech at the Wilson
Center: The Ethics and Efficacy of the President’s Counterterrorism Strategy, Apr. 30, 2012, 2012 DIGEST OF
UNITED STATES PRACTICE IN INTERNATIONAL LAW 584, 585 (“There is nothing in international law … that prohibits

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There are many examples of lawful attacks taking place far from where the fighting waspreviously taking place. 103
For policy or operational reasons, military orders, such as applicable rules ofengagement, may limit the locations where attacks on otherwise lawful military objectives may
be conducted.
5.4.6 Force That May Be Applied Against Military Objectives. In the absence of
expected harm to civilians and civilian objects or of wanton destruction that is not justified bymilitary necessity, the law of war imposes no limit on the degree of force that may be directedagainst enemy military objectives, including enemy military personnel (but not including enemy
personnel who are placed hors de combat). 104 For example, the principle of military necessity
does not require that only the minimum force that is actually necessary in a specific situation
may be used against military objectives. 105 Instead, the broader imperatives of winning the war
may be considered, and overwhelming force may be used against enemy military objectives. 106
In addition, combatants need not offer opponents an opportunity to surrender before
us from using lethal force against our enemies outside of an active battlefield, at least when the country involved
consents or is unable or unwilling to take action against the threat.”).
103

For example, John D. Negroponte, Letter dated 7 October 2001 from the Permanent Representative of the UnitedStates of America to the United Nations addressed to the President of the Security Council, U.N. Doc. No.
S/2001/946 (Oct. 7, 2001) (informing the U.N. Security Council that “the United States of America, together withother States, has initiated actions in the exercise of its inherent right of individual and collective self-defence
following the armed attacks that were carried out against the United States on 11 September 2001” including U.S.
military operations against al-Qaida and the Taliban in Afghanistan); LOUIS MORTON, UNITED STATES ARMY IN
WORLD WAR II, THE WAR IN THE PACIFIC, STRATEGY AND COMMAND: THE FIRST TWO YEARS, 269-74 (1962)(describing U.S. bombing raid led by Lt. Col. James H. Doolittle on April 18, 1942, against military objectives inTokyo).
104

See Refresher Course for Battalion and Brigade Commanders, ¶11, Appendix B in DEPARTMENT OF THE ARMY
SUBJECT SCHEDULE 27-1, The Geneva Conventions of 1949 and Hague Convention No. IV of 1907, 16 (Aug. 29,
1975) (“Nowhere in the law of war will you find a prohibition on shooting—and shooting to kill—the enemy in a
firefight. On the battlefield the regrettable but necessary reality is kill or be killed. Once the enemy has
surrendered, however, or otherwise fallen into your hands, there is no need to kill him.”); J. Fred Buzhardt, GeneralCounsel, Department of Defense, Letter to Senator Edward Kennedy, Sept. 22, 1972, reprinted in 67 AJIL 122, 124(1973) (“I would like to reiterate that it is recognized by all states that they may not lawfully use their weapons
against civilian population or civilians as such, but there is no rule of international law that restrains them fromusing weapons against enemy armed forces or military targets. The correct rule of international law which has
applied in the past and continued to apply to the conduct of our military operations in Southeast Asia is that ‘the lossof life and damage to property must not be out of proportion to the military advantage to be gained.’”); ICRC AP
COMMENTARY 620 (¶1953) (“The armed forces and their installations are objectives that may be attacked wherever
they are, except when the attack could incidentally result in loss of human life among the civilian population,
injuries to civilians, and damage to civilian objects which would be excessive in relation to the expected direct andspecific military advantage.”).
105

Refer to § 2.2.3.1 (Consideration of the Broader Imperatives of Winning the War).

106

See, e.g., 2007 NWP 1-14M ¶5.3.1 (“It is important to note that the principle of military necessity does notprohibit the application of overwhelming force against enemy combatants, units and material consistent with theprinciples of distinction and proportionality.”); AIR FORCE OPERATIONS & THE LAW 16 (2009) (“The prohibition of
unnecessary suffering does not limit the bringing of overwhelming firepower on an opposing military force in orderto subdue or destroy it.”).

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carrying out an attack. 107
In particular, the following practices are not prohibited: (1) surprise attacks; (2) attacks
on retreating forces; (3) harassing fires; and (4) attacks on specific individuals.
5.4.6.1 Surprise Attacks. The law of war does not prohibit the use of surprise to
conduct attacks, such as the use of surprise in ambushes, sniper attacks, air raids, and attacks by
special operations forces carried out behind enemy lines. 108 There is no requirement that an
enemy combatant must be warned before being attacked. 109 Rather, warning requirements apply
only with respect to the civilian population and certain other protected units, vessels, andfacilities, such as military medical units and facilities. 110
5.4.6.2 Attacks on Retreating Forces. Enemy combatants remain liable to attack
when retreating. 111 Retreat is not the same as surrender. Retreating forces remain dangerous as
the enemy force may recover to counterattack, consolidate a new defensive position, or assist the
war effort in other ways. 112 Retreat may also be a ruse. 113 Retreating enemy combatants may
107

See FINAL REPORT ON THE PERSIAN GULF WAR 629 (“A combatant force involved in an armed conflict is not
obligated to offer its opponent an opportunity to surrender before carrying out an attack.”).
108

For example, 1958 UK MANUAL ¶115 note 2 (“It is not forbidden to send a detachment or individual members of
the armed forces to kill, by sudden attack, members or a member of the enemy armed forces. Thus, for instance, theraid by a British commando party on the headquarters of General Rommel’s African Army at Beda Littoria in 1943
was not contrary to the provisions of the Hague Rules. The operation was carried out by military personnel in
uniform; it had as part of its objective the seizure of Rommel’s operational headquarters, including his own
residence, and the capture or killing of enemy personnel therein, … .”); SPAIGHT, WAR RIGHTS ON LAND 87-88 (“Asurprise attack is a very different thing [from a treacherous one]. When a body of Federal cavalrymen made asudden descent on ‘Hickory Hill’ farm, in which the young Confederate General, W. F. H. Lee (son of the greatcommander, R. E. Lee), was convalescing from a wound, and carried him off as a prisoner of war to Fortress
Munroe, they were guilty of no treachery under the laws of war. It was a fair and open raid.”).
109

See, e.g., W. Hays Parks, Special Assistant for Law of War Matters, Office of the Judge Advocate General, U.S.
Army, Memorandum re: Legality of Silencers/Suppressors 6 (Jun. 9, 1995) (“There is no law of war requirementthat a combatant must be ‘warned’ before he or she is subject to the application of lawful, lethal force. A landmine
provides no warning; neither does an ambush, a sniper, a machinegun in a concealed defensive position, a Claymore
munition in a defensive perimeter, a delayed action munition, a naval mine, or many other means or methods of
warfare. A sentry or personnel in a listening or observation post lawfully may be killed quietly, preferably throughsurprise, by garrote or knife attack. A surface-to-air missile undetected by its targeted aircraft likewise kills by
surprise.”); W. Hays Parks, Special Assistant for Law of War Matters, Memorandum of Law—Legality of Snipers(Sept. 29, 1992), reprinted in THE ARMY LAWYER 3 (Dec. 1992) (“The element of surprise is a fundamental
principle of war, and does not make an otherwise legitimate act of violence unlawful.”).
110

Refer to § 5.11.5.3 (That May Affect the Civilian Population); § 5.11.5.1 (Other Warning Requirements).

111

FINAL REPORT ON THE PERSIAN GULF WAR 632 (“The law of war permits the attack of enemy combatants andenemy equipment at any time, wherever located, whether advancing, retreating, or standing still. Retreat does notprevent further attack. At the small-unit level, for example, once an objective has been seized and the position
consolidated, an attacking force is trained to fire upon the retreating enemy to discourage or prevent a
counterattack.”).
112

See FINAL REPORT ON THE PERSIAN GULF WAR 622 (“It is recognized by military professionals that a retreating
force remains dangerous. The First Marine Division and its 4,000 attached U.S. Army forces and British Royal
Marines, in the famous 1950 march out of the Chosin Reservoir in North Korea, fighting outnumbered by a 4:1
margin, turned its ‘retreat’ into a battle in which it defeated the 20th and 26th Chinese Armies trying to annihilate it,… .”).

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have the same amount of force brought to bear upon them as an attacking military force, and a
military commander is under no obligation to limit force directed against enemy combatantsbecause they are, or appear to be, in retreat.
5.4.6.3 Harassing Fires. Harassing fires against enemy combatants are notprohibited. (Such action is clearly distinguishable from attacks to terrorize or otherwise harm thecivilian population, which are, of course, prohibited.) Harassing fires are delivered on enemy
locations for the purpose of disturbing enemy forces’ rest, curtailing their movement, or lowering
their morale. 114
5.4.6.4 Attacks on Specific Individuals. Military operations may be directedagainst specific enemy combatants. 115 U.S. forces have often conducted such operations. 116
5.4.7 Prohibition Against Declaring That No Quarter Be Given. It is forbidden to declarethat no quarter will be given. 117 This means that it is prohibited to order that legitimate offers ofsurrender will be refused or that detainees, such as unprivileged belligerents, will be summarily

113

Refer to § 5.25.2 (Examples of Ruses).

114

APPENDIX TO 1985 CJCS MEMO ON AP I 47 (“Harassing fires are delivered on enemy locations for the purpose of
disturbing the rest, curtailing the movement, or lowering the morale of troops.”).

115

See, e.g., Harold Hongju Koh, Legal Adviser, Department of State, Address at the Annual Meeting of theAmerican Society of International Law: The Obama Administration and International Law, Mar. 25, 2010, 2010
DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 718 (“First, some have suggested that the very act oftargeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals
who are part of such an armed group are belligerents and, therefore, lawful targets under international law. …
Indeed, targeting particular individuals serves to narrow the focus when force is employed and to avoid broader
harm to civilians and civilian objects.”); 1956 FM 27-10 (Change No. 1 1976) ¶31 (“[The prohibition on killing or
wounding treacherously reflected the Hague IV Regulations] does not, however, preclude attacks on individual
soldiers or officers of the enemy whether in the zone of hostilities, occupied territory, or elsewhere.”).
116

For example, Barack Obama, Remarks by the President on Osama Bin Laden (May 2, 2011) (“Today, at mydirection, the United States launched a targeted operation against that compound [suspected of housing Osama Bin
Laden] in Abbottabad, Pakistan. A small team of Americans carried out the operation with extraordinary courageand capability. No Americans were harmed. They took care to avoid civilian casualties. After a firefight, they
killed Osama bin Laden and took custody of his body.”); George W. Bush, Remarks on the Death of Senior Al
Qaeda Associate Abu Musab Al Zarqawi, Jun. 8, 2006, 2006-I PUBLIC PAPERS OF THE PRESIDENTS 1099 (describing
how after “work[ing] tirelessly with their Iraqi counterparts to track down this brutal terrorist,” U.S. “special
operation forces, acting on tips and intelligence from Iraqis, confirmed Zarqawi’s location” and killed him); JOHNMILLER, CARTWHEEL: THE REDUCTION OF RABAUL 44 (Office of the Chief of Military History, Department of the
Army 1959) (“American intelligence officers had discovered the exact time on 18 April [Admiral] Yamamoto[,
Commander-in-Chief of the Japanese Combined Fleet,] was due to reach the Buin area … . [D]isposing of
Yamamoto would advance the Allied cause, so the Commander, Aircraft, Solomons, was told to shoot him down
[and did so successfully].”); Henry Pinckney McCain, Adjutant General of the U.S. Army, Telegram to General
Frederick Funston (Mar. 10, 1916), reprinted in PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITEDSTATES WITH THE ADDRESS OF THE PRESIDENT TO CONGRESS DECEMBER 5, 1916 (Department of State 1925)(relaying that the “President has directed that an armed force be sent into Mexico with the sole object of capturing[Pancho] Villa and preventing any further raids by his band”).
117

HAGUE IV REG. art. 23(d) (noting that it is especially forbidden “[t]o declare that no quarter will be given;”).
Consider AP I art. 40 (“It is prohibited to order that there shall be no survivors, to threaten an adversary therewith orto conduct hostilities on this basis.”).

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executed. 118 Moreover, it is also prohibited to conduct hostilities on the basis that there shall be
no survivors, or to threaten the adversary with the denial of quarter. 119
This rule is based on both humanitarian and military considerations. 120 This rule also
applies during non-international armed conflict. 121
5.4.8 Obligation of Combatants to Distinguish Themselves When Conducting Attacks.
Combatants have certain obligations to distinguish themselves that include, but are not limited
to, those times when they conduct attacks. 122 For example, militia and volunteer corps mustwear fixed, distinctive insignia, including when they are conducting attacks. 123 In addition,
combatants may not kill or wound by resort to perfidy. 124 Combatants may not fight in theenemy’s uniform. 125 Lastly, persons engaging in spying or sabotage risk additional penalties
under the domestic law of enemy States. 126
5.4.8.1 Fighting Out of Uniform. Although military operations generally are
conducted while wearing a uniform or other distinctive emblems, there may be occasions, suchas a surprise attack by enemy forces, when military personnel are unable to dress in theiruniforms before resisting the enemy’s assault. 127
Military personnel not in uniform may resist an attack, so long as they are not wearing

118

ICRC AP COMMENTARY 476 (¶1595) (“[A]ny order of ‘liquidation’ is prohibited, whether it concerns
commandos, political or any other kind of commissars, irregular troops or so-called irregular troops, saboteurs,
parachutists, mercenaries or persons considered to be mercenaries, or other cases.”).
119

ICRC AP COMMENTARY 476 (¶1595) (“It is not only the order to put them to death that is prohibited, but also thethreat and the execution, with or without orders.”).

120

BOTHE, PARTSCH, & SOLF, NEW RULES 217 (AP I art. 40, ¶2.1) (“A declaration or order that there shall be no
survivors, or that no prisoners shall be taken, tends to stiffen the adversary’s will to resist and is therefore
counterproductive to the achievement of the legitimate objectives of a military operations. Moreover, it incites theadversary to adopt a similar policy thus causing the conflict to degenerate into unrestrained savagery.”).

121

Refer to § 17.6.1 (Prohibition on Declaring That No Quarter Be Given).

122

See also ALLAN ROSAS, THE LEGAL STATUS OF PRISONERS OF WAR: A STUDY IN INTERNATIONALHUMANITARIAN LAW APPLICABLE IN ARMED CONFLICTS 351 (1976) (“What such proposals and statements [made in
the context of the negotiations for the 1949 Geneva Conventions] do seem to imply, however, is that in areas where
enemy forces are present (notably in occupied territory) members of independent (or of regular) forces are notallowed to appear as part of the peaceful civilian population (e.g., as peasants or workers) while occasionallycommitting hostile acts against the enemy (the ‘day-time civilian, night-time combatant’ -situation).”).
123

Refer to § 4.6.4 (Having a Fixed Distinctive Sign Recognizable at a Distance).

124

Refer to § 5.22 (Treachery or Perfidy Used to Kill or Wound).

125

Refer to § 5.23 (Use of Enemy Flags, Insignia, and Military Uniforms).

126

Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).

127

For example, SPAIGHT, AIR POWER AND WAR RIGHTS 101 (“In the second world war, too, there were instances inwhich pilots fought en dishabille. For example, in Kenya a pilot of the South African Air Force happened to bewearing nothing but a singlet when Italian bombers approached, and so clad (or unclad) he dashed to his aircraft andjoined in the fight.”).

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the enemy’s uniform and do not kill or wound treacherously. 128 For example, military personnel
not in uniform who resist an attack, and who do not purposefully seek to conceal their status ascombatants, commit no violation of the law of war and remain entitled to the privileges ofcombatant status. The normal wearing of uniforms or other distinctive emblems, however,should resume as soon as practicable because such wear helps protect the civilian populationfrom erroneous attack by helping to distinguish military forces from the civilian population. 129
5.4.8.2 AP I Obligation for Combatants to Distinguish Themselves During Attacks
or Military Operations Preparatory to an Attack. AP I provides that: “combatants are obliged to
distinguish themselves from the civilian population while they are engaged in an attack or in a
military operation preparatory to an attack.” 130
The AP I provision only partially describes the obligation under customary internationallaw of combatants to distinguish themselves from the civilian population. Under customaryinternational law, the obligation of combatants to distinguish themselves is a general obligationthat the armed forces have as a group and is not limited to times when they are engaged in an
attack or in a military operation preparatory to an attack. 131 Moreover, measures such as wearing
insignia or other distinctive emblems may be of less practical significance during an attack.
During an attack, combatants are likely to be distinguishable based on their activities more than
any insignia or devices they are wearing.
5.5 DISCRIMINATION IN CONDUCTING ATTACKS
Under the principle of distinction, combatants may make enemy combatants and othermilitary objectives the object of attack, but may not make the civilian population and otherprotected persons and objects the object of attack. 132
5.5.1 Persons, Objects, and Locations That Are Not Protected From Being Made the
Object of Attack. Combatants may make enemy combatants and other military objectives theobject of attack. 133
5.5.2 Persons, Objects, and Locations That Are Protected From Being Made the Object ofAttack. Persons, objects, and locations that are not military objectives may not be made theobject of attack. In particular, the following persons and objects may not be made the object of
attack, unless that protection is specifically forfeited under the circumstances:•

Persons, such as

128

Refer to § 5.23 (Use of Enemy Flags, Insignia, and Military Uniforms); § 5.22 (Treachery or Perfidy Used to Kill
or Wound).
129

Refer to § 5.14.5 (Carrying Arms Openly and Wearing of Distinctive Emblems by the Armed Forces toDistinguish Themselves From the Civilian Population).
130

AP I art. 44(3).

131Refer to § 4.6.1.1 (GPW 4A(2) Conditions Required on a Group Basis).

132

Refer to § 2.5.2 (Discriminating in Conducting Attacks Against the Enemy).

133

Refer to § 5.6 (Military Objectives).

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o individual civilians and the civilian population; 134o military medical and religious personnel, including military medical units; 135
o combatants placed hors de combat; 136 ando parlementaires; 137 and•Objects and locations, provided they are not military objectives, such aso military medical transport, facilities, and equipment; 138o cultural property; 139o historic monuments, museums, scientific, artistic, educational and cultural
institutions; 140o places of worship;o undefended villages, towns, or cities; 141o hospital and safety zones, and persons and objects within these zones; 142 ando neutralized zones, and persons and objects within neutralized zones. 143

5.6 MILITARY OBJECTIVES
Military objectives refers to persons and objects that may be made the object of attack.
Certain classes of persons and objects are categorically recognized as military objectives. Apartfrom these classes that are categorically military objectives, other objects are assessed as to134

Refer to § 4.8.2 (Civilians – Conduct of Hostilities).

135

Refer to § 4.10.1 (Military Medical and Religious Personnel - Conduct of Hostilities); § 7.8 (Respect andProtection of Categories of Medical and Religious Personnel); § 7.10 (Military Medical Units and Facilities).
136

Refer to § 5.9 (Persons Placed Hors de Combat).

137

Refer to § 12.5.4 (Rights of Inviolability of the Parlementaire).

138

Refer to § 7.10 (Military Medical Units and Facilities).

139

Refer to § 5.18 (Protection of Cultural Property During Hostilities).

140

ROERICH PACT art. 1 (“The historic monuments, museums, scientific, artistic, educational and cultural institutions
shall be considered as neutral and as such respected and protected by belligerents. The same respect and protection
shall be due to the personnel of the institutions mentioned above. The same respect and protection shall be accorded
to the historic monuments, museums, scientific, artistic, educational and cultural institutions in time of peace as wellas in war.”).
141

Refer to § 5.15 (Undefended Cities, Towns, and Villages).

142

Refer to § 5.14.3.1 (Civilian Hospital and Safety Zones and Localities).

143

Refer to § 5.14.3.3 (Neutralized Zones).

208

whether they meet the definition of “military objective.”
5.6.1 Military Objective – Notes on Terminology. The term military objective has beenused in various treaties as a term of art to mean a person or object that may lawfully be made theobject of attack. 144
5.6.1.1 Persons and Objects as Military Objectives. Although enemy combatants
may be made the object of attack, some sources do not classify persons as military objectives,and limit the term military objective to objects.
Definitions of military objectives in treaties have defined the term military objective
insofar as objects (rather than persons) are concerned. 145 In addition, the treaty definitions havebeen written with the purpose of explaining when objects that normally are civilian objects havebecome military objectives under the circumstances.
This manual uses the term military objective to include persons who may be made theobject of attack. 146
5.6.1.2 Dual-Use Objects. Sometimes, “dual-use” is used to describe objects thatare used by both the armed forces and the civilian population, such as power stations orcommunications facilities. However, from the legal perspective, such objects are either military
objectives or they are not; there is no intermediate legal category. 147 If an object is a military
objective, it is not a civilian object and may be made the object of attack. 148 However, it will beappropriate to consider in applying the principle of proportionality the harm to the civilian
population that is expected to result from the attack on such a military objective. 149
5.6.2 Persons Who Are Military Objectives. Certain classes of persons are military

144

See, e.g., CCW PROTOCOL III ON INCENDIARY WEAPONS art. 2(4) (referring to “combatants or other military
objectives”); 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8(1) (referring to “any important military
objective constituting a vulnerable point”); GC art. 18 (“In view of the dangers to which hospitals may be exposedby being close to military objectives, it is recommended that such [civilian] hospitals be situated as far as possible
from such objectives.”).
145

See CCW PROTOCOL III ON INCENDIARY WEAPONS art. 1(3) (“‘Military objective’ means, so far as objects areconcerned, any object which … .”); CCW AMENDED MINES PROTOCOL art. 2(6) (“‘Military objective’ means, so far
as objects are concerned, any object which … .”). Consider AP I art. 52(2) (“Attacks shall be limited strictly to
military objectives. In so far as objects are concerned, military objectives are limited to those objects which … .”).

146

Refer to § 5.6.2 (Persons Who Are Military Objectives).

147

Christopher Greenwood, Customary international law and the First Geneva Protocol of 1977 in the Gulf conflict,in PETER ROWE, THE GULF WAR 1990-91 IN INTERNATIONAL AND ENGLISH LAW 63, 73 (1993) (“If an object is amilitary objective, it may be attacked (subject to the requirements of the principle of proportionality which are
discussed in the next section), while if it is a civilian object, it may not be attacked. There is no intermediate
category of ‘dual use’ objects: either something is a military objective or it is not.”).
148

CCW AMENDED MINES PROTOCOL art. 2(7) (“‘Civilian objects’ are all objects which are not military objectives
as defined in paragraph 6 of this Article.”).
149

Refer to § 5.10 (Proportionality in Conducting Attacks).

209

objectives and may be made the object of attack. 150 These classes of persons include:•

combatants, such as military ground, air, and naval units, or unprivileged belligerents; 151
and•civilians taking a direct part in hostilities. 152

However, the following classes of persons are not military objectives:•

military medical and religious personnel, unless they commit acts harmful to theenemy; 153•

military medical units, unless they have forfeited their protected status; 154•

combatants placed hors de combat; 155 and•parlementaires. 156

5.6.3 Objects That Are Military Objectives. Military objectives, insofar as objects areconcerned, include “any object which by its nature, location, purpose or use makes an effective
contribution to military action and whose total or partial destruction, capture or neutralization, inthe circumstances ruling at the time, offers a definite military advantage.” 157
This definition of military objective may be viewed as a way of evaluating whether
military necessity exists to attack an object. 158 It may also be applied outside the context of
conducting attacks to assess whether the seizure or destruction of an object is justified by150

See CCW PROTOCOL III ON INCENDIARY WEAPONS art. 2(4) (referring to “combatants or other military
objectives”); ICRC AP COMMENTARY 635 (¶2017) (“It should be noted that the definition [of military objective in
AP I] is limited to objects but it is clear that members of the armed forces are military objectives, … .”).
151

Refer to § 5.7 (Combatants).

152

Refer to § 5.8 (Civilians Taking a Direct Part in Hostilities).

153

Refer to § 7.8.3 (Loss of Protection for Medical and Religious Personnel From Being Made the Object of Attack).

154

Refer to § 7.10.3 (Loss of Protection of Military Medical Units and Facilities From Being Made the Object ofAttack).
155

Refer to § 5.9 (Persons Placed Hors de Combat).

156

Refer to § 12.5.4 (Rights of Inviolability of the Parlementaire).

157

CCW AMENDED MINES PROTOCOL art. 2(6). See also CCW PROTOCOL III ON INCENDIARY WEAPONS art. 1(3)(same); 10 U.S.C. § 950p(a)(1) (“The term ‘military objective’ means combatants and those objects duringhostilities which, by their nature, location, purpose, or use, effectively contribute to the war-fighting or warsustaining capability of an opposing force and whose total or partial destruction, capture, or neutralization would
constitute a definite military advantage to the attacker under the circumstances at the time of an attack.”). Consider
AP I art. 52(2) (“In so far as objects are concerned, military objectives are limited to those objects which by theirnature, location, purpose or use make an effective contribution to military action and whose total or partial
destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”).

158

Refer to § 2.2 (Military Necessity).

210

military necessity. 159
5.6.4 Objects Categorically Recognized as Military Objectives. Two types of objects are
categorically recognized as military objectives. In other words, the definition of military
objective is always considered to be met as a matter of law with regard to these objects. Thus,
these objects may be made the object of attack without specifically applying the analysis
discussed in § 5.6.5 (Definition of Military Objective for Objects: A Two-Part Test).
5.6.4.1 Military Equipment and Bases. First, certain objects belonging to thearmed forces and used in military operations are recognized as military objectives. 160 This
includes:•Military ground, air, and naval equipment (other than identifiable medical equipment ortransport), 161 including vehicles, ships, weapons, munitions, and supplies, such aso strategic and tactical integrated air defense systems;
o missile launching equipment and positions; ando command and control equipment.

•

Military bases, such as army, air, and naval bases (other than military medical facilities,
POW camps, and civilian internee camps), whether used for training, billeting, or staging,or offensive or defensive purposes, such aso headquarters or command and control facilities;
o defense ministries; ando intelligence facilities.

5.6.4.2 Objects Containing Military Objectives. Second, objects that containmilitary objectives are military objectives. 162 For example,

159

Refer to § 5.17 (Seizure and Destruction of Enemy Property); § 5.17.2.1 (Using the Military Objective Definition
to Assess Whether the Seizure or Destruction of Enemy Property Is Justified by Military Necessity).
160

2004 UK MANUAL ¶5.4.1 (“The term ‘military objective’ includes combatant members of the enemy armed
forces and their military weapons, vehicles, equipment, and installations.”); 2006 AUSTRALIAN MANUAL ¶5.27(“The term ‘military objective’ includes combatant members of the enemy armed forces and their military weapons,vehicles, equipment and installations.”); 2001 CANADIAN MANUAL ¶407(1) (“The following are generally accepted
as being military objectives: a. military bases, warehouses, petroleum storage areas, ports and airfields; and b.
military aircraft, weapons, ammunition, buildings and objects that provide administrative and logistical support for
military operations.”).
161

For devices to facilitate identification of military medical units, transport, and equipment, refer to § 7.15 (Displayof the Distinctive Emblem to Facilitate Identification).
162

ROGERS, LAW ON THE BATTLEFIELD 36 (“A civilian object which contains military personnel or things of military
significance is considered a military objective.”); 2001 CANADIAN MANUAL ¶407(2) (“Civilian vessels, aircraft,vehicles and buildings are military objectives if they contain combatants, military equipment or supplies.”). Cf.

211

•

Storage and production sites for military equipment, includingo missile production and storage facilities; ando nuclear, biological, and chemical weapons research and production facilities; and•Facilities in which combatants are sheltering or billeting. 163

5.6.5 Definition of Military Objective for Objects: A Two-Part Test. The definition of
military objective insofar as objects are concerned may be divided into two parts, both of whichmust be met for the object to be considered a military objective: (1) that the object somehow
makes an effective contribution to military action; and (2) attacking, capturing, or neutralizing
the object, in the circumstances, offers a definite military advantage. 164
Generally, the reason why the object meets the first part of the definition also satisfies thesecond part of the definition. In other words, attacking the object in the circumstances will offer
a definite military advantage because it seeks to preclude the object from effectively contributing
to the enemy’s military action. Moreover, the two parts are not necessarily connected because
the concept of definite military advantage is broader than simply denying the adversary thebenefit of an object’s effective contribution to its military operations. 165 These broader aspectsof “military advantage” may also be relevant in evaluating whether an attack is expected to be
excessive under the principle of proportionality. 166
The following discussion elaborates upon the definition of military objective.
5.6.6 By Its Nature, Location, Purpose, or Use Makes an Effective Contribution to
Military Action. The first part of the test is whether the object, by its nature, location, purpose,or use makes an effective contribution to the enemy’s military action.
5.6.6.1 Nature, Location, Purpose, or Use. The nature, location, purpose, or useof the object may contribute to the object making an effective contribution to the enemy’s
military action. The issue is whether, in total, an effective contribution is made; one factor alone
CCW PROTOCOL III ON INCENDIARY WEAPONS art. 2(4) (plants “used to cover, conceal, or camouflage combatants
or other military objectives,” may be attacked with incendiary weapons).
163

1956 FM 27-10 (Change No. 1 1976) ¶40 (giving as examples of legitimate objects of attack “a place which is
occupied by a combatant military force or through which such a force is passing,” as well as “[f]actories producing
munitions and military supplies, military camps, warehouses storing munitions and military supplies, ports andrailroads being used for the transportation of military supplies, and other places devoted to the support of military
operations or the accommodation of troops”); ICRC AP COMMENTARY 701 (¶2265) (“If combat is taking place
within a city or a town, and there is fighting from house to house, which is frequently the case, it is clear that thesituation becomes very different and that any building sheltering combatants becomes a military objective.”).
164

ICRC AP COMMENTARY 635 (¶2018) (“The definition comprises two elements: a) the nature, location, purpose
or use which makes an effective contribution to military action; b) the total or partial destruction, capture or
neutralization which in the circumstances ruling at the time offers a definite military advantage. Whenever these
two elements are simultaneously present, there is a military objective in the sense of the Protocol.”).
165

Refer to § 5.6.7.3 (Definite Military Advantage).

166

Refer to § 5.12.2 (Concrete and Direct Military Advantage Expected to Be Gained).

212need not provide the effective contribution. In addition, nature, location, purpose, or use neednot be viewed as mutually exclusive concepts; rather, these concepts may be understood tooverlap.
“Nature” refers to the type of object and may be understood to refer to objects that are
per se military objectives. For example, military equipment and facilities, by their nature, makean effective contribution to military action. 167 On the other hand, “nature” can also be
understood to refer to objects that may be used for military purposes as discussed below.
The location of an object may provide an effective contribution to military action. For
example, during military operations in urban areas, a house or other structure that would
ordinarily be a civilian object may be located such that it provides cover to enemy forces orwould provide a vantage point from which attacks could be launched or directed. The word“location” also helps clarify that an area of land can be militarily important and therefore amilitary objective. 168“Use” refers to the object’s present function. For example, using an otherwise civilianbuilding to billet combatant forces makes the building a military objective. 169 Similarly, using
equipment and facilities for military purposes, such as using them as a command and control
center or a communications station, would result in such objects providing an effective
contribution to the enemy’s military action.
“Purpose” means the intended or possible use in the future. 170 For example, runways at a
civilian airport could qualify as military objectives because they may be subject to immediate
military use in the event that runways at military air bases have been rendered unserviceable orinoperable. 171 Similarly, the possibility that bridges or tunnels would be used to assist in theadversary’s military operations in the future could result in such objects providing an effective
contribution to the enemy’s military action, even though they are not being used at that moment
for such purposes.
5.6.6.2 Make an Effective Contribution to Military Action. The object must makeor be intended to make an effective contribution to military action; however, this contribution
need not be “direct” or “proximate.” 172 For example, an object might make an effective, but
167

ICRC AP COMMENTARY 636 (¶2020) (“A closer look at the various criteria used [i.e., nature, purpose, location,or use] reveals that the first refers to objects which, by their nature, make an effective contribution to military
action. This category comprises all objects directly used by the armed forces: weapons, equipment, transports,
fortifications, depots, buildings occupied by armed forces, staff headquarters, communications centres etc.”). Referto § 5.6.4 (Objects Categorically Recognized as Military Objectives).

168

Refer to § 5.6.8.4 (Examples of Military Objectives – Places of Military Significance).

169

Refer to § 5.6.4.2 (Objects Containing Military Objectives).

170

See, e.g., 2006 AUSTRALIAN MANUAL ¶5.29 (“Purpose means the future intended use of an object while ‘use’
means its present function.”); 2004 UK MANUAL ¶5.4.4 (“e. ‘Purpose’ means the future intended use of an object
while ‘use’ means its present function.”).
171

Refer to § 5.6.8.3 (Examples of Military Objectives – Transportation Objects).

172

Cf. BOTHE, PARTSCH, & SOLF, NEW RULES 324 (AP I art. 52, ¶2.4.3) (noting that “[m]ilitary objectives must
make an ‘effective contribution to military action’ … does not require a direct connection with combat operations”

213

remote, contribution to the enemy’s military action and nonetheless meet this aspect of thedefinition. Similarly, an object might be geographically distant from most of the fighting andnonetheless satisfy this element.
Military action has a broad meaning and is understood to mean the general prosecution of
the war. 173 It is not necessary that the object provide immediate tactical or operational gains orthat the object make an effective contribution to a specific military operation. Rather, theobject’s effective contribution to the war-fighting or war-sustaining capability of an opposing
force is sufficient. 174 Although terms such as “war-fighting,” “war-supporting,” and “warsustaining” are not explicitly reflected in the treaty definitions of military objective, the UnitedStates has interpreted the military objective definition to include these concepts. 175
5.6.7 Whose Total or Partial Destruction, Capture, or Neutralization, in the
Circumstances Ruling at the Time, Offers a Definite Military Advantage. In addition to making
an effective contribution to the adversary’s military action, the attack of the object must also, inthe circumstances ruling at the time, offer a definite military advantage for the object to beconsidered a “military objective.”
5.6.7.1 Capture or Neutralization. The definition of military objective
incorporates considerations beyond whether an object’s destruction is justified. It also
incorporates considerations of whether the object’s capture and neutralization would offer aand that “a civilian object may become a military objective and thereby lose its immunity from deliberate attack
through use which is only indirectly related to combat action, but which nevertheless provides an effective
contribution to the military phase of a Party’s overall war effort.”).
173

ROGERS, LAW ON THE BATTLEFIELD 36 (“The term military action appears to have a wide meaning equating to
the general prosecution of the war.”).
174

See APPENDIX TO 1985 CJCS MEMO ON AP I 51 (“Under this definition [of military objective in AP I], an area ofland could, for example, be a military objective, as could political and economic activities that support the enemy’s
war effort.”); BOTHE, PARTSCH, & SOLF, NEW RULES 324 (AP I art. 52, ¶2.4.2) (noting that military objectives may
include “activities providing administrative and logistical support to military operations such as transportation andcommunications systems, railroads, airfields and port facilities and industries of fundamental importance for the
conduct of the armed conflict.”). Cf. 10 U.S.C. § 950p(a)(1) (“The term ‘military objective’ means … those objects
during hostilities which, by their nature, location, purpose, or use, effectively contribute to the war-fighting or warsustaining capability of an opposing force.”) (emphasis added).
175

Brian Egan, Legal Adviser, Department of State, Remarks to the American Society of International Law:
International Law, Legal Diplomacy, and the Counter-ISIL Campaign, Apr. 1, 2016 (“In particular, I’d like to spend
a few minutes walking through some of the targeting rules that the United States regards as customary internationallaw applicable to all parties in a NIAC: … Insofar as objects are concerned, military objectives are those objects
which by their nature, location, purpose or use make an effective contribution to military action and whose total orpartial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite militaryadvantage. The United States has interpreted this definition to include objects that make an effective contribution to
the enemy’s war-fighting or war-sustaining capabilities.”). See also W. Hays Parks, Asymmetries and theIdentification of Legitimate Military Objectives, in INTERNATIONAL HUMANITARIAN LAW FACING NEW
CHALLENGES 100 (2007) (“War-sustaining and/or war-fighting reflect State practice. Historical evidence and thedescription of the target sets agreed upon by NATO governments in ALLIED FORCE support the idea that nations
have, do, and will attack not only an enemy’s war-fighting capability, but also his capacity to sustain the conflict.”);Horace B. Robertson, The Principle of the Military Objective in the Law of Armed Conflict, 8 UNITED STATES AIR
FORCE ACADEMY JOURNAL OF LEGAL STUDIES 35, 50-51 (1997) (comparing the definition of military objective inthe 1995 Commander’s Handbook on the Law of Naval Operations to the definition of military objective in AP I).

214

military advantage.
Capture refers to the possibility of seizure (rather than destruction), which would confer amilitary advantage. For example, the seizure of a city may be a military objective because of its
strategic location. 176
Neutralization refers to a military action that denies an object to the enemy without
capturing or destroying it. For example, a specific area of land may be neutralized by planting
landmines on or around it, and thus denying it to the enemy. 177
5.6.7.2 In the Circumstances Ruling at the Time. The attack of the object must,“in the circumstances ruling at the time,” offer a definite military advantage for the object to beconsidered a military objective.
Nonetheless, the purpose (i.e., future use) of the object can be considered in whether an
object provides an effective contribution to the adversary’s military action. 178 In addition, thedefinite military advantage offered by the attack need not be immediate, but may be assessed in
the full context of the war strategy. 179
5.6.7.3 Definite Military Advantage. “Definite” means a concrete and perceptible
military advantage, rather than one that is merely hypothetical or speculative. 180
The advantage need not be immediate. 181 For example, the military advantage in theattack of an individual bridge may not be seen immediately (particularly if, at the time of theattack, there is no military traffic in the area), but can be established by the overall effort toisolate enemy military forces on the battlefield through the destruction of bridges.
“Military advantage” refers to the advantage anticipated from an attack when considered
as a whole, and not only from its isolated or particular parts. 182 Similarly, “military advantage”
176

Refer to § 5.6.8.4 (Examples of Military Objectives – Places of Military Significance).

177

Refer to § 5.6.8.4 (Examples of Military Objectives – Places of Military Significance).

178

Refer to § 5.6.6.1 (Nature, Location, Purpose, or Use).

179

Refer to § 5.6.7.3 (Definite Military Advantage).

180

For example, W. Hays Parks, Asymmetries and the Identification of Legitimate Military Objectives, in
INTERNATIONAL HUMANITARIAN LAW FACING NEW CHALLENGES footnotes 88 and 170 and accompanying text
(2007) (giving an example of a case in which objects did not meet this standard, “the 25 February 1991
recommendation by the U.S. Air Force component of US Central Command for an air attack on a Baghdad statue of
Saddam Hussayn and another statue, consisting of matching sets of arms with crossed swords (modeled on the armsof Saddam Hussayn), called the Victory Arch or Crossed Swords Monument,” because the military assessment wasthat such targets were worthless and any value from attacking them was too speculative).
181

See J. Fred Buzhardt, General Counsel, Department of Defense, Letter to Senator Edward Kennedy, Sept. 22,
1972, reprinted in 67 AJIL 122, 124 (1973) (“Turning to the deficiencies in the Resolutions of the Institut de Droit
International, and with the foregoing in view, it cannot be said that Paragraph 2, which refers to legal restraints that
there must be an ‘immediate’ military advantage, reflects the law of armed conflict that has been adopted in thepractices of States.”).
182

See, e.g., France, Statement on Ratification of AP I, translated in SCHINDLER & TOMAN, THE LAWS OF ARMED
CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 800 (2004) (“It is the215

is not restricted to immediate tactical gains, but may be assessed in the full context of the war
strategy. 183
The definite military advantage offered by damaging, destroying, or neutralizing theobject may result from denying the enemy the ability to use this object in its military operations(i.e., to benefit from the object’s effective contribution to the military action). For example, theattack or seizure of objects with a common military purpose, such as bridges used, or potentiallyavailable to be used, in lines of communication would offer a definite military advantage.
The military advantage from an attack is not limited to denying the enemy the benefit ofthat object’s contribution to its military action. For example, in a diversionary attack, themilitary advantage to be gained from attacking an object would result from diverting enemy
forces’ resources and attention. 184 The military advantage from an attack may involve a variety
of other considerations, including improving the security of the attacking force.
The military advantage from an attack may result from harm to the morale of enemy
forces. 185 Diminishing the morale of the civilian population and their support for the war effort
does not provide a definite military advantage. 186 However, attacks that are otherwise lawful areunderstanding of the Government of the French Republic that the expression ‘military advantage’ contained inparagraphs 5(b) of Article 51, 2 of Article 52 and 2(a)(iii) of Article 57, is intended to refer to the advantage
anticipated from the attack considered as a whole and not from isolated or particular parts of the attack.”); Spain,
Statement on Ratification of AP I, Apr. 21, 1989, 1537 UNTS 389, 392 (“Articles 51, 52 and 57. It is understoodthat the words ‘military advantage’ in these articles refer to the advantage expected from the attack as a whole andnot from isolated parts of it.”).
183

See FINAL REPORT ON THE PERSIAN GULF WAR 613 (“‘Military advantage’ is not restricted to tactical gains, but
is linked to the full context of a war strategy, in this instance, the execution of the Coalition war plan for liberationof Kuwait.”). See also Eritrea Ethiopia Claims Commission, Partial Award: Western Front, Aerial Bombardment
and Related Claims, Eritrea’s Claims 1, 3, 5, 9-13, 14, 21, 25 & 26, ¶113 (Dec. 19, 2005) (“The Commission is of
the view that the term ‘military advantage’ can only properly be understood in the context of the military operations
between the Parties taken as a whole, not simply in the context of a specific attack. Thus, with respect to the present
claim, whether the attack on the power station offered a definite military advantage must be considered in thecontext of its relation to the armed conflict as a whole at the time of the attack.”).
184

For example, BOTHE, PARTSCH, & SOLF, NEW RULES 325 (AP I art. 52, ¶2.4.4) (“Thus, prior to the 1944 crosschannel operation, the Allies attacked a large number of bridges, fuel dumps, airfields and other targets in the Pas deCalais. These targets made an effective contribution to German military action in that area. The primary militaryadvantage of these attacks anticipated by the Allies, however, was not to reduce German military strength in thatarea, but to deceive the Germans into believing that the Allied amphibious assault would occur in the Pas de Calais
instead of the beaches of Normandy.”); MILITARY ANALYSIS DIVISION, THE UNITED STATES STRATEGIC BOMBINGSURVEY (PACIFIC): JAPANESE AIR POWER 10 (1946) (“The [Doolittle] raid was too small to do substantial physicaldamage, but its repercussions on the planning level of the high command were considerable. ... [A]ttention was
focused on the eastern approaches to the home islands, and additional impetus given the prewar plan to attack
Midway and the Aleutians. ... [T]he Japanese began to implement their plans for air defense of Japan which before
that time had received scant consideration. ... A total of four Army fighter groups were held in Japan throughout
1942 and 1943 for the defense of the homeland when the Japanese Navy was urgently demanding that the Army
send reinforcements to the Solomons.”).
185

Refer to § 5.4.6.3 (Harassing Fires).

186

Cf. LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 528-29 (§214eb) (“It is also probable that till the end of
the War the aerial bombardment by the Allies did not assume the complexion of bombing for the exclusive purposeof spreading terror and shattering the morale of the population at large—though this was the inevitable concomitant216

not rendered unlawful if they happen to result in diminished civilian morale. 187
The military advantage expected to be gained from an attack might not be readily
apparent to the enemy or to outside observers because, for example, the expected militaryadvantage might depend on the commander’s strategy or assessments of classified information.
5.6.8 Examples of Objects Often Regarded as Military Objectives. The following typesof objects generally have met the definition of “military objective” in past conflicts, but may not
be military objectives in all circumstances: (1) leadership facilities; (2) communications objects;(3) transportation objects; (4) places of military significance; and (5) economic objects
associated with military operations or with war-supporting or war-sustaining industries.
This list of examples is not exclusive (i.e., an object could fall in more than one category
in this list), and this list is not exhaustive (i.e., an object outside these categories may nonethelessmeet the definition of military objective). Lastly, this list is not conclusive, i.e., whether an
example is, in fact, a military objective, must be assessed according to the definition of military
objective.
5.6.8.1 Examples of Military Objectives – Leadership Facilities. Facilities usedby enemy leaders as headquarters for military operations or otherwise to command military
operations have often been regarded as military objectives. 188 In some cases, enemy leaders
themselves may be made the object of attack. 189
5.6.8.2 Examples of Military Objectives – Communications Objects.
Communications objects, such as facilities, networks, and equipment that could be used forcommand and control of military operations or intelligence gathering, have often been regardedof strategic target-bombing. Thus what remained of the protection afforded by International Law to the civilian
population in the matter of aerial bombardment was the principle—generally acknowledged by the Allies, though
not always capable of being adhered to in practice—that the bombing of towns or purely residential parts of towns
which were not in any way related to the war efforts of the enemy was unlawful. At the same time abstention fromsuch bombing could also be explained by reference to considerations of economy militating against costly
operations for the sake of achieving purely psychological effect—considerations the disregard of which rendered theuse by Germany of the flying bomb and long-range projectiles not only unlawful but, in the judgment of many, also
detrimental to her own war effort.”).
187

For example, Judith A. Miller, Commentary, 78 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 107,110 (2002) (“I will readily admit that, aside from directly damaging the military electrical power infrastructure,
NATO wanted the civilian population to experience discomfort, so that the population would pressure Milosevic and
the Serbian leadership to accede to UN Security Council Resolution 1244, but the intended effects on the civilian
population were secondary to the military advantage gained by attacking the electrical power infrastructure.”). Referto § 5.2.2 (Essentially Negative Duties to Respect Civilians and to Refrain From Directing Military Operations
Against Them).
188

For example, 2006 AUSTRALIAN MANUAL ¶2.8, at 2-5 (“HISTORICAL EXAMPLE—AVOIDINGCOLLATERAL DAMAGE, AFGHANISTAN 2002-2003 … A major focus in Afghanistan was the leadership.
This meant targeting residences and road convoys, with difficulties of identification and the consequent acceptanceof non-combatant casualties as a necessary proportionate risk to achieve the military objective.”).
189

Refer to § 5.7.4 (Leaders).

217

as military objectives. 190
5.6.8.3 Examples of Military Objectives – Transportation Objects. Transportation
objects, including facilities (e.g., port facilities and airfields) and equipment that could be part oflines of communication (e.g., highways, railroads, waterways, and bridges connecting militaryforces with logistics depots and storage areas), have often been regarded as military
objectives. 191
5.6.8.4 Examples of Military Objectives – Places of Military Significance. Areasof land that are militarily significant may constitute military objectives. 192 For example, anti-

190

For example, ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing
Campaign Against the Federal Republic of Yugoslavia, ¶¶71-72 (Jun. 13, 2000) (“On 23 April 1999, at 0220,
NATO intentionally bombed the central studio of the RTS (state-owned) broadcasting corporation at 1 Aberdareva
Street in the centre of Belgrade. … The bombing of the TV studio was part of a planned attack aimed at disrupting
and degrading the C3 (Command, Control and Communications) network. In co-ordinated attacks, on the samenight, radio relay buildings and towers were hit along with electrical power transformer stations.”).
191

For example, DoD statement, Dec. 26, 1966, X WHITEMAN’S DIGEST 427 (“U.S. policy is to target military
targets only, particularly those which have a direct impact on the movement of men and supplies into South
Vietnam. These targets include but are not limited to roads, railroads, bridges, road junctions, POL facilities,
barracks and supply depots. … In the specific case of Nam Dinh and Phu Li, targets have been limited to railroad
and highway bridges, railroad yards, POL dumps and air defense sites.”); Report of the United Nations Command
Operations in Korea for the Period 1 to 15 August 1950, enclosure to Note Dated 2 September 1950 From thePermanent Representative of the United States of America to the President of the Security Council Transmitting theThird Report of the United Nations Command in Korea in Accordance with the Security Council Resolution of 7
July 1950 (S/1588), U.N. Doc. S/1756 (Sept. 2, 1950) (“United States Far East Air Force medium bombers struck
heavy blows at north Korean industrial targets of military significance and at the north Korean transportation
system. The Korean manufacturing complex, the largest in the Far East, and the oil refinery at Wonsan, have been
extensively damaged by successive attacks. The marshalling yards in Pyongyang, Wonsan, and Seoul have been
repeatedly attacked, as have yards of less consequence. A general transportation interdiction program continues
with destruction of rail and highway bridges along principal lines of communication. The rail and port
transportation center at Najin-dong was also bombed.”).

192

See, e.g., Canada, Statement on Ratification of AP I, Nov. 20, 1990, 1591 UNTS 462, 465 (“It is theunderstanding of the Government of Canada in relation to Article 52 that: a. A specific area of land may be amilitary objective if, because of its location or other reasons specified in the Article as to what constitutes a military
objective, its total or partial destruction, capture or neutralization in the circumstances governing at the time offers adefinite military advantage, … .”); Germany, Statement on Ratification of AP I, Feb. 14, 1991, 1607 UNTS 526, 529(“Article 52 of Additional Protocol I is understood by the Federal Republic of Germany to mean that a specific areaof land may also be a military objective if it meets all requirements of Article 52, paragraph 2.”); Netherlands,
Statement on Ratification of AP I, Jun. 26, 1987, 1477 UNTS 300 (“It is the understanding of the Government of theKingdom of the Netherlands that a specific area of land may also be a military objective if, because of its location orother reasons specified in paragraph 2, its total or partial destruction, capture, or neutralization in the circumstancesruling at the time, offers a definite military advantage;”); New Zealand, Statement on Ratification of AP I, Feb. 8,
1988, 1499 UNTS 358 (“In relation to Article 52, it is the understanding of the Government of New Zealand that a
specific area of land may be a military objective if, because of its location or other reasons specified in the Article,
its total or partial destruction, capture or neutralisation in the circumstances ruling at the time offers a definite
military advantage.”); United Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 77 (“Re:Article 52 It is the understanding of the United Kingdom that: A specific area of land may be a military objective if,
because of its location or other reasons specified in this Article, its total or partial destruction, capture or
neutralization in the circumstances ruling at the time offers definite military advantage; … .”).

218

tank mines may be laid on such areas in order to block enemy forces’ tanks. 193 Areas of landthat have been regarded as military objectives have included, for example:•

road networks; 194•

known or suspected enemy avenues of approach or withdrawal;•

mountain passes, hills, defiles, and bridgeheads; 195 and•villages, towns, or cities whose seizure is militarily important. 196

5.6.8.5 Examples of Military Objectives – Economic Objects Associated With
Military Operations. Economic objects associated with military operations or with warsupporting or war-sustaining industries have been regarded as military objectives.
Electric power stations are generally recognized to be of sufficient importance to a
State’s capacity to meet its wartime needs of communication, transport, and industry so as
usually to qualify as military objectives during armed conflicts. 197
193

United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065
UNTS 128, 130 (“The United States understands that an area of land itself can be a legitimate military objective forthe purpose of the use of landmines, if its neutralization or denial, in the circumstances applicable at the time, offersa military advantage.”).
194

See FINAL REPORT ON THE PERSIAN GULF WAR 612 (“A bridge or highway vital to daily commuter and businesstraffic can be equally crucial to military traffic, or support for a nation’s war effort. Railroads, airports, seaports,
and the interstate highway system in the United States have been funded by the Congress in part because of US
national security concerns, for example; each proved invaluable to the movement of US military units to various
ports for deployment to Southwest Asia (SWA) for Operations Desert Shield and Desert Storm. Destruction of abridge, airport, or port facility, or interdiction of a highway can be equally important in impeding an enemy’s war
effort.”).
195

ROGERS, LAW ON THE BATTLEFIELD 37.

196

For example, MILAN N. VEGO, JOINT OPERATIONAL WARFARE: THEORY AND PRACTICE II-34-II-35 (Reprint of
1st ed., 2009) (“In purely military terms, a capital is normally an operational objective to be seized or defended. The
reason is that no enemy’s capital can possibly physically include the enemy’s entire armed forces, or even most of
the ground forces. Therefore, the defeat of enemy forces defending the capital (and most other large cities as well)would normally amount to the accomplishment of an operational objective that in some situations could havestrategic consequences for the war’s outcome. … General Mark Clark, the Fifth Army’s commander, was directedby President Franklin D. Roosevelt and General George Marshall to take Rome as quickly as possible, and in any
event before the planned Normandy landing. The Allied troops entered Rome on 6 June 1944, the same day the
Allied forces landed in Normandy.”).
197

Eritrea Ethiopia Claims Commission, Partial Award: Western Front, Aerial Bombardment and Related Claims,
Eritrea’s Claims 1, 3, 5, 9-13, 14, 21, 25 & 26, ¶117 (Dec. 19, 2005) (“The Commission agrees with Ethiopia thatelectric power stations are generally recognized to be of sufficient importance to a State’s capacity to meet its
wartime needs of communication, transport and industry so as usually to qualify as military objectives during armed
conflicts. The Commission also recognizes that not all such power stations would qualify as military objectives, forexample, power stations that are known, or should be known, to be segregated from a general power grid and arelimited to supplying power for humanitarian purposes, such as medical facilities, or other uses that could have noeffect on the State’s ability to wage war.”). For example, W. Hays Parks, Air War and the Law of War, 32 AIR
FORCE LAW REVIEW 1, 168-69 (1990) (“In selecting North Vietnamese power sources for attack, target intelligenceauthorities identified the Lang Chi hydroelectric facility, a Soviet-built, 122,500-kilowatt electric generating plant219

Oil refining and distribution facilities and objects associated with petroleum, oil, andlubricant products (including production, transportation, storage, and distribution facilities) havealso been regarded as military objectives. 198
5.7 COMBATANTS
In general, combatants, whether privileged or unprivileged, may be made the object of
attack, provided they have not been placed hors de combat.
5.7.1 Armed Forces and Groups and Liability to Being Made the Object of Attack.
Membership in the armed forces or belonging to an armed group makes a person liable to being
made the object of attack regardless of whether he or she is taking a direct part in hostilities. 199
This is because the organization’s hostile intent may be imputed to an individual through his or
her association with the organization. Moreover, the individual, as an agent of the group, can be
assigned a combat role at any time, even if the individual normally performs other functions forthe group. 200
Thus, combatants may be made the object of attack at all times, regardless of theactivities in which they are engaged at the time of attack. 201 For example, combatants who are
63 miles up the Red River Valley from Hanoi that was capable of supplying seventy-five percent of the electricity
for Hanoi’s industrial and defense needs. Without question, it was a valuable target. … The Lang Chi hydroelectricfacility was attacked by Air Force F-4 Phantoms using LGB [laser-guided bombs] on 10 June 1972. They placed
twelve 2000-pound LGB through the roof of the 50-by-100-foot building, thereby destroying the electric generating
plant without breach of the dam, despite the fact that the roof of the power plant was 100 feet below the top of thedam.”).
198

For example, Department of Defense, Report to Congress: Kosovo/Operation Allied Force, After-Action Report,
82 (Jan. 31, 2000) (“Following the end of Operation Allied Force, NATO released an initial assessment of their
attack effectiveness against a number of targets. These targets destroyed or significantly damaged include: … •Fifty-seven percent of petroleum reserves; • All Yugoslav oil refineries … .”); Department of Defense, Report to the
Senate and House Appropriations Committees regarding international policies and procedures regarding theprotection of natural and cultural resources during times of war, Jan. 19, 1993, reprinted as Appendix VIII in
Patrick J. Boylan, Review of the Convention for the Protection of Cultural Property in the Event of Armed Conflict(The Hague Convention of 1954) 201, 204 (1993) (“Similarly, natural resources that may be of value to an enemy in
his war effort are legitimate targets. The 1943 air raids on the Ploesti oil fields in Romania, and the Combined
Bomber Offensive campaign against Nazi oil, were critical to allied defeat of Germany in World War II, forexample. What is prohibited is unnecessary destruction, that is, destruction of natural resources that has no or
limited military value.”).
199

See, e.g., ICRC AP COMMENTARY 1453 (¶4789) (“Those who belong to armed forces or armed groups may be
attacked at any time.”); GREENSPAN, MODERN LAW OF LAND WARFARE 57 (explaining that “as members of thearmed forces [non-combat military personnel except for medical personnel and chaplains] are legitimate objects ofattack by the enemy,”).
200

Gherebi v. Obama, 609 F. Supp. 2d 43, 69 (D.D.C. 2009) (noting that “many members of the armed forces who,
under different circumstances, would be ‘fighters’ may be assigned to non-combat roles at the time of theirapprehension” and that “[t]hese individuals are no less a part of the military command structure of the enemy, andmay assume (or resume) a combat role at any time because of their integration into that structure.”), abrogated on
different grounds by Uthman v. Obama, 637 F.3d 400, 403 (D.C. Cir. 2011).
201

W. Hays Parks, Chief, International Law Branch, Office of the Judge Advocate General, Department of theArmy, Executive Order 12333 and Assassination, Nov. 2, 1989, III CUMULATIVE DIGEST OF UNITED STATESPRACTICE IN INTERNATIONAL LAW 1981-1988 3411, 3413 (“Combatants are liable to attack at any time or place,220standing in a mess line, engaging in recreational activities, or sleeping remain the lawful objectof attack, provided they are not placed hors de combat. 202
5.7.1.1 U.S. Practice in Declaring Forces Hostile. In DoD practice, an armed
force or group may be designated as hostile (also known as declaring the force hostile) in rules ofengagement. This means that personnel to whom such rules of engagement apply are authorized
to attack the members of the group. In DoD practice, the authority to designate a group as
hostile has been limited to only certain officials. 203
5.7.2 Categories of Persons Who Are Combatants for the Purpose of Assessing Their
Liability to Attack. The following categories of persons are combatants who may be made theobject of attack because they are sufficiently associated with armed forces or armed groups:•

members of the armed forces of a State; 204•members of militia and volunteer corps; 205

regardless of their activity when attacked. Nor is a distinction made between combat and combat service support
personnel with regard to the right to be attacked as combatants; combatants are subject to attack if they areparticipating in hostilities through fire, maneuver, and assault; providing logistic, communications, administrative,or other support; or functioning as staff planners. An individual combatant’s vulnerability to lawful targeting (asopposed to assassination) is not dependent upon his or her military duties, or proximity to combat as such.”)(citations omitted).
202

For example, 101st Airborne ROE Card, Iraq (2003), reprinted in CENTER FOR LAW AND MILITARY OPERATIONS,THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, I LEGAL LESSONS LEARNED FROM
AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS (11 SEPTEMBER 2001 - 1 MAY 2003) 315-16 (2004) (“1.
Fire at all members of forces DECLARED HOSTILE. You may immediately fire upon any force that you know to
be hostile. … 1. Facts: An enemy unit maneuvers within your weapon range. Response: Shoot to eliminate thethreat and accomplish the mission. 2. Facts: An unarmed enemy soldier sees you and does nothing but stare at you.
Response: Shoot to eliminate the threat. The soldier is a member of a Hostile Force and is lawful target.”).
203

For example, CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION 3121.01B, Standing Rules ofEngagement/Standing Rules for the Use of Force for U.S. Forces, A-2, ¶2(b) (June 13, 2005), reprinted in
INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT, THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER &SCHOOL, U.S. ARMY, OPERATIONAL LAW HANDBOOK 94 (2014) (“Once a force is declared hostile by appropriate
authority, U.S. forces need not observe a hostile act or demonstrated hostile intent before engaging the declared
hostile force. Policy and procedures regarding the authority to declare forces hostile are provided in Appendix A to
Enclosure A, paragraph 3.”); CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION 3121.01A, Standing Rules ofEngagement for US Forces, A-12, ¶6 (Jan. 15, 2000), reprinted in CENTER FOR LAW AND MILITARY OPERATIONS,THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, Rules of Engagement (ROE) Handbook
for Judge Advocates 96 (May 1, 2000) (“6. Declaring Forces Hostile. Once a force is declared hostile byappropriate authority, US units need not observe a hostile act or a demonstration of hostile intent before engaging
that force. The responsibility for exercising the right and obligation of national self-defense and as necessary
declaring a force hostile is a matter of the utmost importance. All available intelligence, the status of international
relationships, the requirements of international law, an appreciation of the political situation, and the potential
consequences for the United States must be carefully weighed. The exercise of the right and obligation of national
self-defense by competent authority is separate from and in no way limits the commander's right and obligation to
exercise unit self-defense. The authority to declare a force hostile is limited as amplified in Appendix A of thisEnclosure.”).
204

Refer to § 4.5 (Armed Forces of a State).

205

Refer to § 4.6 (Other Militia and Volunteer Corps).

221

•

participants in a levée en masse; 206•

persons belonging to non-State armed groups; 207 and•leaders whose responsibilities include the operational command and control of the armed
forces or of a non-State armed group. 208

5.7.3 Persons Belonging to Non-State Armed Groups. Like members of an enemy
State’s armed forces, individuals who are formally or functionally part of a non-State armed
group that is engaged in hostilities may be made the object of attack because they likewise sharein their group’s hostile intent. 209
5.7.3.1 Formal Membership. Formal membership in an armed group might beindicated by formal or direct information or by other types of information.
In some cases, there might be formal or direct information indicating membership in thegroup. This might include:•

using a rank, title, or style of communication;•

taking an oath of loyalty to the group or the group’s leader;•wearing a uniform or other clothing, adornments, or body markings that identify
members of the group; or•

documents issued or belonging to the group that identify the person as a member, such as
membership lists, identity cards, or membership applications. 210

Although in some cases this type of formal or direct information might be available, inmany cases it will not be available because members of these groups seek to conceal theirassociation with that group. In such cases, the following types of information might indicate thata person is a member of a non-State armed group:

206

Refer to § 4.7 (Levée en Masse).

207

Refer to § 5.7.3 (Persons Belonging to Non-State Armed Groups).

208

Refer to § 5.7.4 (Leaders).

209

Cf. Al-Adahi v. Obama, 613 F.3d 1102, 1108 (D.C. Cir. 2010) (“The district court seemed to think it important todetermine Al-Adahi’s motive for attending the al-Qaida training camp. We do not understand why. Whatever his
motive, the significant points are that al-Qaida was intent on attacking the United States and its allies, that bin Laden
had issued a fatwa announcing that every Muslim had a duty to kill Americans, and that Al-Adahi voluntarily
affiliated himself with al-Qaida.”).
210

Cf. Alsabri v. Obama, 684 F.3d 1298, 1304-05 (D.C. Cir. 2012) (upholding a district court’s determination that
petitioner was part of the Taliban, al-Qaida, or associated forces, including by considering “an English translation ofa document appearing to be Alsabri’s application to attend an al Qaeda training camp” and “an English-languagetranslation of a 92-page collection of documents that the government maintains were internal Taliban or al Qaeda
records” that “were captured by Coalition forces from the ‘Director of Al-Qa’ida Security Training Office,’”).

222

•

acting at the direction of the group or within its command structure;•

performing a function for the group that is analogous to a function normally performed
by a member of a State’s armed forces;•

taking a direct part in hostilities, including consideration of the frequency, intensity, andduration of such participation; 211•

accessing facilities, such as safehouses, training camps, or bases used by the group thatoutsiders would not be permitted to access; 212•

traveling along specific clandestine routes used by those groups; 213 or•

traveling with members of the group in remote locations or while the group conducts
operations. 214

5.7.3.2 Functional Membership. Some non-State armed groups might not be
organized in a formal command structure, as generally is required for POW status during
international armed conflict. 215 Such groups might lack a formal distinction between those

211

Refer to § 5.8.3 (“Taking a Direct Part in in Hostilities”).

212

Cf. Alsabri v. Obama, 684 F.3d 1298, 1306 (D.C. Cir. 2012) (“[I]t is difficult to believe that ‘Taliban fighters
would allow an individual to infiltrate their posts near a battle zone unless that person was understood to be a part of
the Taliban.’”) (quoting Alsabri v. Obama, 764 F.Supp.2d 60, 94 (D.D.C. 2011)); Uthman v. Obama, 637 F.3d 400,406 (D.C. Cir. 2011) (“In two prior cases, this Court has stated that staying at an al Qaeda guesthouse is ‘powerful—indeed ‘overwhelming’—evidence’ that an individual is part of al Qaeda. Al–Adahi, 613 F.3d at 1108 (quoting Al–
Bihani v. Obama, 590 F.3d 866, 873 footnote 2 (D.C. Cir. 2010)) (alterations omitted). The reason for thatassessment is plain: It is highly unlikely that a visitor to Afghanistan would end up at an al Qaeda guesthouse by
mistake, either by the guest or by the host.”).
213

Cf. Suleiman v. Obama, 670 F.3d 1311, 1314 (D.C. Cir. 2012) (“There is no dispute that Suleiman’s travel was
initiated at the suggestion of and facilitated by a Taliban recruiter, and that he traveled a well-worn path to
Afghanistan frequently used by Taliban recruits. We have stated that such travel may indicate that an individual
traveled to Afghanistan to join the Taliban.”) (citing Al Odah v. United States, 611 F.3d 8, 14 (D.C. Cir. 2010));
Uthman v. Obama, 637 F.3d 400, 405 (D.C. Cir. 2011) (“[T]raveling to Afghanistan along a distinctive path used by
al Qaeda members can be probative evidence that the traveler was part of al Qaeda.”); Al Odah v. United States, 611
F.3d 8, 16 (D.C. Cir. 2010) (finding it significant that “Al Odah traveled to Afghanistan on a series of one-way planetickets purchased with cash in a manner consistent with travel patterns of those going to Afghanistan to join the
Taliban and al Qaeda”).
214

Cf. Hussain v. Obama, 718 F.3d 964, 968-69 (D.C. Cir. 2013) (“Evidence that Hussain bore a weapon of war
while living side-by-side with enemy forces on the front lines of a battlefield at least invites — and may very wellcompel — the conclusion that he was loyal to those forces. We have repeatedly affirmed the propriety of thiscommon-sense inference.”); Uthman v. Obama, 637 F.3d 400, 405 (D.C. Cir. 2011) (“Being captured in thecompany of a Taliban fighter and two al Qaeda members and Osama bin Laden bodyguards 12 miles from Tora
Bora in December 2001 might not be precisely the same as being captured in a German uniform 12 miles from theNormandy beaches in June 1944. But it is still, at a minimum, highly significant. And absent a credible alternative
explanation, the location and date of Uthman’s capture, together with the company he was keeping, strongly suggestthat he was part of al Qaeda.”).
215

Refer to § 4.6.3 (Being Commanded by a Person Responsible for His or Her Subordinates).

223

members and non-members who nonetheless participate in the hostile activities of the group. 216
An individual who is integrated into the group such that the group’s hostile intent may be
imputed to him or her may be deemed to be functionally (i.e., constructively) part of the group,
even if not formally a member of the group. The integration of the person into the non-State
armed group and the inference that the individual shares the group’s intention to commit hostileacts distinguish such an individual from persons who are merely sympathetic to the group’s
goals. 217
The following may indicate that a person is functionally a member of a non-State armed
group:•

following directions issued by the group or its leaders; 218•

taking a direct part in hostilities on behalf of the group on a sufficiently frequent or
intensive basis; 219 or•

performing tasks on behalf of the group similar to those provided in a combat, combat
support, or combat service support role in the armed forces of a State.

5.7.3.3 Dissociation or Renunciation. A person may not be made the object of
attack based on his or her association with a non-State armed group if that association has clearly
been severed. Relevant factors in determining when an individual has unambiguously ceased to
be a member of a non-State armed group may include:•

whether the individual has formally ceased to be a member of the group, such as by filingrelevant paperwork or by otherwise formally renouncing any allegiance to the group;•

whether there are concrete and verifiable facts or persuasive indicia that he or she has
affirmatively returned to peaceful pursuits, such as by participating in a reconciliation
program and swearing an oath of loyalty to the government; and•the amount of time that has passed since the person participated in the activities of thegroup in question, if coupled with other indicia of dissociation or renunciation. 220

216

Compare § 4.7 (Levée en Masse).

217

Compare § 5.8.3.2 (Examples of Acts Not Considered Taking a Direct Part in Hostilities).

218

Cf. Uthman v. Obama, 637 F.3d 400, 403 (D.C. Cir. 2011) (“[D]emonstrating that someone is part of al Qaeda’s
command structure is sufficient to show that person is part of al Qaeda.”); Al-Adahi v. Obama, 613 F.3d 1102, 1109
(D.C. Cir. 2010) (“When the government shows that an individual received and executed orders from al-Qaida
members in a training camp, that evidence is sufficient (but not necessary) to prove that the individual has affiliatedhimself with al-Qaida.”); Salahi v. Obama, 625 F.3d 745, 752 (D.C. Cir. 2010) (“Evidence that an individual
operated within al-Qaida’s command structure is ‘sufficient but is not necessary to show he is ‘part of’ theorganization.’” (quoting Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010))).
219

Refer to § 5.8.3 (“Taking a Direct Part in in Hostilities”).

220

Stephen Pomper, Assistant Legal Adviser for Political-Military Affairs, Department of State, Toward a Limited
Consensus on the Loss of Civilian Immunity in Non-International Armed Conflict: Making Progress Through224

The onus is on the person having belonged to the armed group to demonstrate clearly andaffirmatively to the opposing forces that he or she will no longer participate in the activities of
the group. 221 Moreover, if persons who have dissociated from an armed group rejoin the groupor fail to cease permanently their participation in hostilities, they may be made the object of
attack. 222
5.7.4 Leaders. Military leaders are subject to attack on the same basis as other membersof the armed forces. Similarly, leaders of non-State armed groups are also subject to attack on
the same basis as other members of the group. There is no objection to making a specific enemy
leader who is a combatant the object of attack. 223
Leaders who are not members of an armed force or armed group (including heads ofState, civilian officials, and political leaders) may be made the object of attack if their
responsibilities include the operational command or control of the armed forces. For example, as
the commander-in-chief of the U.S. armed forces, the President would be a legitimate target inwartime, as would, for example, the Prime Minister of a constitutional monarchy. In contrast,
the reigning monarch of a constitutional monarchy with an essentially ceremonial role in Stateaffairs may not be made the object of attack.
In addition to leaders who have a role in the operational chain of command, leaders
taking a direct part in hostilities may also be made the object of attack. 224 Planning or
authorizing a combat operation is an example of taking a direct part in hostilities. 225
As a matter of practice, attacks on the national leadership of an enemy State have often
been avoided on the basis of comity and to help ensure that authorities exist with whom peaceagreements may be concluded.

Practice, 88 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 181, 189 (2012) (“Relevant factors indetermining that an individual has ceased to be a member of an organized armed group include the amount of timethat has passed since that individual has taken relevant action on behalf of the group in question, and whether he or
she affirmatively has disassociated himself or herself from the organized armed group.”).
221

Wolff Heintschel von Heinegg & Peter Dreist, The 2009 Kunduz Air Attack: The Decision of the Federal
Prosecutor-General on the Dismissal of Criminal Proceedings Against Members of the German Armed Forces, 53
GERMAN YEARBOOK OF INTERNATIONAL LAW 833, 844-45 (2010) (“Here, the Prosecutor-General takes theopportunity to identify different categories of lawful targets under the law of non-international armed conflict. As
regards fighters belonging to a non-State party to the conflict, their qualification as lawful targets is not based onsome form of legal status but on the mere fact of their functional integration into an organized armed group. If they
are so integrated, they do not qualify as civilians even though they may eventually pursue civilian occupation. They
only regain their civilian status if they clearly and irrevocably renounce their function in the organized armed group.
Hence, the Prosecutor-General is not prepared to consider Taliban fighters to be lawful targets only insofar and forsuch time as they take a direct part in armed hostilities.”). Compare § 5.9.3 (Persons Who Have Surrendered).
222

Refer to § 5.8.4.2 (No “Revolving Door” Protection); § 5.8.4.1 (Permanently Ceased Participation in Hostilities).

223

Refer to § 5.4.6.4 (Attacks on Specific Individuals).

224

Refer to § 5.8.3 (“Taking a Direct Part in in Hostilities”).

225

Refer to § 5.8.3.1 (Examples of Taking a Direct Part in Hostilities).

225

5.8 CIVILIANS TAKING A DIRECT PART IN HOSTILITIES
Civilians who take a direct part in hostilities forfeit protection from being made the objectof attack.
5.8.1 Civilians Taking a Direct Part in Hostilities – Notes on Terminology. This manual
uses the phrase “direct part in hostilities” to indicate what activities cause a civilian to forfeit hisor her protection from being made the object of attack. This usage does not mean that the UnitedStates has adopted the direct participation in hostilities rule that is expressed in Article 51 of API.
5.8.1.1 “Active” Versus “Direct”. The phrases “active part in hostilities” and“direct part in hostilities” have been used to describe when civilians forfeit their protection frombeing made the object of attack. As noted above, this manual uses “direct” rather than “active”
in this context, although as discussed below, this usage should not be regarded as indicating asubstantive difference between “active” and “direct.”
Common Article 3 of the 1949 Geneva Conventions refers to “[p]ersons taking no active
part in the hostilities.” AP I and AP II use the phrase “direct part in hostilities.” 226 In addition,
AP I uses the phrase “direct part in hostilities” to address other situations apart from theprotection of civilians. 227
Although the words active and direct can mean different things in the English language,
the terms have sometimes been treated as the same for the purpose of applying the direct
participation in hostilities rule. 228 One of the reasons for treating the terms the same is that
although the English language version of the 1949 Geneva Conventions uses “active,” and theEnglish language versions of AP I and AP II use “direct,” the French language versions of thesetreaties use the same word, “directement.” 229 Because the English and French language versions
226

AP I art. 51(3) (“Civilians shall enjoy the protection [from being made the object of attack], unless and for suchtime as they take a direct part in hostilities.”); AP II art. 13(3) (“Civilians shall enjoy the protection [from being
made the object of attack], unless and for such time as they take a direct part in hostilities.”).
227

See, e.g., AP I art. 43(2) (“Members of the armed forces of a Party to a conflict (other than medical personnel andchaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right toparticipate directly in hostilities”); AP I art. 47(2) (“A mercenary is any person who ... [inter alia] (b) Does, in fact,take a direct part in the hostilities … .”).
See, e.g., Prosecutor v. Tadić, ICTY Trial Chamber, IT-94-1-T, Judgment, ¶¶614-15 (May 7, 1997) (“The rules
contained in paragraph 1 of Common Article 3 proscribe a number of acts which: ... (iii) are committed against
persons taking no active part in hostilities ... the test the Trial Chamber has applied is to ask whether, at the time of
the alleged offence, the alleged victim of the proscribed acts was directly taking part in hostilities, being thosehostilities in the context of which the alleged offences are said to have been committed. If the answer to thatquestion is negative, the victim will enjoy the protection of the proscriptions contained in Common Article 3.”);
Prosecutor v. Akayesu, ICTR Trial Chamber, ICTR-96-4-T, Judgment, ¶629 (Sept. 2, 1998) (“‘The victims referred
to in this Indictment were, at all relevant times, persons not taking an active part in the hostilities’. This is a material
averment for charges involving Article 4 inasmuch as Common Article 3 is for the protection of ‘persons taking noactive part in the hostilities’ (Common Article 3(1)), and Article 4 of Additional Protocol II is for the protection of,‘all persons who do not take a direct part or who have ceased to take part in hostilities.’ These phrases are so similar
that, for the Chamber’s purposes, they may be treated as synonymous.”).
228

229

GC art. 3, 973 UNTS 289 (“ne participant pas directement aux hostilitiés”).

226

of the 1949 Geneva Conventions, AP I, and AP II are equally authentic, States negotiating thesetreaties may not have intended a difference between “active” and “direct.” 230
Another reason for treating the terms “active” and “direct” the same in this context is thatthey are understood to be terms of art addressing a particular legal standard, and there are a rangeof views as to what that legal standard means. Thus, there may be different views about what theunderlying standard means, even when there is agreement on the appropriate term to describethat standard. Accordingly, there seems to be little value in distinguishing between the twoterms for the purposes of applying this legal rule.
5.8.1.2 AP I, Article 51(3) Provision on Direct Participation in Hostilities.
Although, as drafted, Article 51(3) of AP I does not reflect customary international law, theUnited States supports the customary principle on which Article 51(3) is based. 231 Similarly,
although parts of the ICRC’s interpretive guidance on the meaning of direct participation in
hostilities are consistent with customary international law, the United States has not acceptedsignificant parts of the ICRC’s interpretive guidance as accurately reflecting customaryinternational law. 232 But some States that are Parties to AP I may interpret and apply Article
51(3) of AP I consistent with the customary international law standard.
5.8.2 Persons to Whom This Rule Applies. For the purpose of applying the rule
discussed in this section, “civilians” are persons who do not fall within the categories ofcombatants listed in § 5.7.2 (Categories of Persons Who Are Combatants for the Purpose ofAssessing Their Liability to Attack). Accordingly, for the purposes of this section, “civilians”
include:230

See, e.g., GC art. 150 (“The present Convention is established in English and in French. Both texts are equallyauthentic.”); AP I art. 102 (“The original of this Protocol, of which the Arabic, Chinese, English, French, Russianand Spanish texts are equally authentic, shall be deposited with the depositary, which shall transmit certified truecopies thereof to all the Parties to the Conventions.”); AP II art. 28 (same).
231

See John B. Bellinger, III, Legal Adviser, Department of State, Unlawful Enemy Combatants, Jan.17, 2007,
DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 915-16 (“While we agree that there is a generalprinciple of international law that civilians lose their immunity from attack when they engage in hostilities, wedisagree with the contention that the provision as drafted in AP I [Article 51(3)] is customary international law.”);
Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on the
Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the
Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 426 (1987) (“Wealso support the principle that the civilian population not be used to shield military objectives or operations fromattack, and that immunity not be extended to civilians who are taking part in hostilities. This corresponds toprovisions in articles 51 and 52[ of AP I].”).
232

See, e.g., Stephen Pomper, Assistant Legal Adviser for Political-Military Affairs, Department of State, Toward a
Limited Consensus on the Loss of Civilian Immunity in Non-International Armed Conflict: Making ProgressThrough Practice, 88 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 181, 186 (2012) (“From theoperational perspective, the feedback [on the ICRC’s interpretive guidance] was that the report was too rigid andcomplex, and did not give an accurate picture of State practice or (in some respects) of a practice to which States
could realistically aspire.”); Al-Bihani v. Obama, 590 F.3d 866, 885 (D.C. Cir. 2010) (Williams, J., concurring)(“The work itself explicitly disclaims that it should be read to have the force of law. … Even to the extent that Al
Bihani’s reading of the Guidance is correct, then, the best he can do is suggest that we should follow it on the basisof its persuasive force. As against the binding language of the AUMF and its necessary implications, however, thatforce is insubstantial.”).

227

•

members of the civilian population; 233•

persons authorized to accompany the armed forces; 234 and•members of the merchant marine and civil aircraft of parties to a conflict. 235

5.8.2.1 Persons Belonging to Hostile, Non-State Armed Groups. Some States
may choose to characterize persons who belong to hostile, non-State armed groups that do not
qualify for status as lawful combatants as “civilians” who may not be attacked unless they aretaking a direct part in hostilities. However, these States may also characterize the act of joining
and remaining a member of an armed group that is engaged in hostilities as a form of taking a
direct part in hostilities that continuously deprives these individuals of their protection frombeing made the object of attack. 236
The U.S. approach has generally been to refrain from classifying those belonging to nonState armed groups as “civilians” to whom this rule would apply. The U.S. approach has been totreat the status of belonging to a hostile, non-State armed group as a separate basis upon which aperson is liable to attack, apart from whether he or she has taken a direct part in hostilities. 237
Either approach may yield the same result: members of hostile, non-State armed groups may bemade the object of attack unless they are placed hors de combat. However, practitioners,
especially when working with coalition partners, should understand that different legal reasoning
is sometimes applied in reaching that result.
5.8.3 “Taking a Direct Part in in Hostilities”. Unlike the treaty definition of “military
objective” for objects, 238 the United States is not a Party to a treaty with a comparable provision
defining taking a direct part in hostilities for the purpose of assessing what conduct renders
civilians liable to being made the object of attack.
At a minimum, taking a direct part in hostilities includes actions that are, by their natureand purpose, intended to cause actual harm to the enemy. 239 Taking a direct part in hostilities
extends beyond merely engaging in combat and also includes certain acts that are an integral partof combat operations or that effectively and substantially contribute to an adversary’s ability to
233

Refer to § 4.8.1.5 (General Usage of “Civilian” in This Manual).

234

Refer to § 4.15 (Persons Authorized to Accompany the Armed Forces).

235

Refer to § 4.16 (Crews of Merchant Marine Vessels or Civil Aircraft).

236

Stephen Pomper, Assistant Legal Adviser for Political-Military Affairs, Department of State, Toward a Limited
Consensus on the Loss of Civilian Immunity in Non-International Armed Conflict: Making Progress ThroughPractice, 88 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 181, 193 endnote 22 (2012) (“As discussed
below, there is a range of views on whether individuals who pass the membership threshold lose their civilian status(and are therefore unprivileged belligerents) or remain civilians but are deemed to be continuously taking a directpart in hostilities and accordingly continuously lose their protections from being made the object of attack.”).
237

Refer to § 5.7.3 (Persons Belonging to Non-State Armed Groups).

238

Refer to § 5.6.3 (Objects That Are Military Objectives).

239

ICRC AP COMMENTARY 619 (“Thus ‘direct’ participation means acts of war which by their nature or purpose arelikely to cause actual harm to the personnel and equipment of the enemy armed forces.”).

228

conduct or sustain combat operations. 240 However, taking a direct part in hostilities does notencompass the general support that members of the civilian population provide to their State’s
war effort, such as by buying war bonds. 241
Whether an act by a civilian constitutes taking a direct part in hostilities is likely todepend highly on the context, such as the weapon systems or methods of warfare employed by
the civilian’s side in the conflict. 242 For example, in some contexts, training and logisticalsupport may be viewed as taking a direct part in hostilities, while in other contexts it mightnot. 243 The following considerations may be relevant: 244

240

See GUENTER LEWY, AMERICA IN VIETNAM 232 (1978) (“We know that on occasion in Vietnam women andchildren placed mines and booby traps, and that villagers of all ages and sexes, willingly or under duress, served as
porters, built fortifications, or engaged in other acts helping the communist forces. It is well established that once
civilians act as support personnel they cease to be noncombatants and are subject to attack.”).

241

Stephen Pomper, Assistant Legal Adviser for Political-Military Affairs, Department of State, Toward a Limited
Consensus on the Loss of Civilian Immunity in Non-International Armed Conflict: Making Progress ThroughPractice, 88 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 181, 189 (2012) (“With respect todetermining what it means to take ‘direct part in hostilities,’ as a threshold matter there seems to be a common viewthat direct participation in hostilities stands in contrast to support by a general population to a nation’s war effort.
Civilians who are contributing to a nation’s war effort accordingly do not by dint of this alone lose theirprotection.”).
242

See Nils Melzer, Third Expert Meeting on the Notion of Direct Participation in Hostilities: Summary Report, 35(2005) (“Since, currently, the qualification of a particular act as direct participation in hostilities often depends on
the particular circumstances and the technology or weapons system employed, it is unlikely that an abstract
definition of direct participation in hostilities applicable to every situation can be found.”).
243

For example, Kenneth Watkin, Opportunity Lost: Organized Armed Groups and the ICRC “Direct Participationin Hostilities” Interpretive Guidance, 42 N.Y.U. JOURNAL OF INTERNATIONAL LAW AND POLITICS 641, 680-81(2010) (“For example in Iraq, it has been noted, ‘IED and suicide-bomber cells are essentially combatant units
themselves,’ where the most technically skilled bomb builder ‘also doubles as a training instructor.’ Further,‘bombers do not ‘just turn up to their target’. They need a logistical infrastructure, which consists of individuals ...
who provide everything from reconnaissance of the potential target ... to the provision of a safe house and food, andthe explosives-laden vehicle or suicide belt.’ … To limit direct participation to persons who place or detonate
explosives is an artificial division of what is fundamentally a group activity. … The person who is key in planningand facilitating such deadly attacks must be a valid target as a direct participant in hostilities …”) (first and second
ellipses in original).
244
Stephen Pomper, Assistant Legal Adviser for Political-Military Affairs, Department of State, Toward a Limited
Consensus on the Loss of Civilian Immunity in Non-International Armed Conflict: Making Progress ThroughPractice, 88 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 181, 189 (“Any determination that a civilian
is taking part in hostilities (and thus loses immunity from being made the object of attack) will be highly situationaland needs to be made by a decisionmaker taking the following considerations into account: • Nature of the harm: Is
the individual's activity directed at (i) adversely affecting one party's military capacity or operations or enhancing
the capacity/operations of the other, or (ii) killing, injuring or damaging civilian objects or persons?
• Causation/integration between action and harm: Is there a sufficiently direct causal link between the individual's
relevant act and the relevant harm, or does the act otherwise form an integral part of coordinated action resulting inthat harm? (Although it is not enough that the act merely occurs during hostilities, there is no requirement that theact be only a single causal step removed from the harm.) • Nexus to hostilities: Is the individual's activity linked toan ongoing armed conflict and is it intended either to disadvantage one party, or advance the interests of an opposing
party, in that conflict? … There is also a range of views about whether each of the foregoing three factors must bepresent in order to make a determination that an individual is directly participating in hostilities (or whether a‘totality of the circumstances’ approach should govern), … . Moreover, there is a range of views concerning the

229

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the degree to which the act causes harm to the opposing party’s persons or objects, suchaso whether the act is the proximate or “but for” cause of death, injury, or damage topersons or objects belonging to the opposing party; oro the degree to which the act is likely to affect adversely the military operations or
military capacity of the opposing party;•

the degree to which the act is connected to the hostilities, such aso the degree to which the act is temporally or geographically near the fighting; oro the degree to which the act is connected to military operations;•the specific purpose underlying the act, such aso whether the activity is intended to advance the war aims of one party to theconflict to the detriment of the opposing party;•

the military significance of the activity to the party’s war effort, such aso the degree to which the act contributes to a party’s military action against the
opposing party;o whether the act is of comparable or greater value to a party’s war effort than actsthat are commonly regarded as taking a direct part in hostilities; 245
o whether the act poses a significant threat to the opposing party;•

the degree to which the activity is viewed inherently or traditionally as a military one,such aso whether the act is traditionally performed by military forces in conducting
military operations against the enemy (including combat, combat support, andrelevance of geographic and temporal proximity of an individual's actions to particular hostile acts in ongoing
hostilities.”).
245

W. Hays Parks, Chief, International Law Branch, Office of the Judge Advocate General, Department of theArmy, Executive Order 12333 and Assassination, Nov. 2, 1989, III CUMULATIVE DIGEST OF UNITED STATESPRACTICE IN INTERNATIONAL LAW 1981-1988 3411, 3416 (“Finally, one rule of thumb with regard to the likelihoodthat an individual may be subject to lawful attack is his (or her) immunity from military service if continued service
in his (or her) civilian position is of greater value to a nation’s war effort than that person’s service in the military.
A prime example would be civilian scientists occupying key positions in a weapons program regarded as vital to anation’s national security or war aims. Thus, more than 900 of the World War II Project Manhattan personnel were
civilians, and their participation in the U.S. atomic weapons program was of such importance as to have made themliable to legitimate attack. Similarly, the September 1944 Allied bombing raids on the German rocket sites at
Peenemunde regarded the death of scientists involved in research and development at that facility to have been as
important as destruction of the missiles themselves.”).

230

combat service support functions); 246 oro whether the activity involves making decisions on the conduct of hostilities, suchas determining the use or application of combat power.
5.8.3.1 Examples of Taking a Direct Part in Hostilities. The following acts are
generally considered taking a direct part in hostilities that would deprive civilians who performthem of protection from being made the object of attack. These examples are illustrative and not
exhaustive:•

taking up or bearing arms against the opposing party, or otherwise personally trying tokill, injure, or capture personnel or damage material belonging to the opposing party, 247
such aso defending military objectives against enemy attack (e.g., manning an antiaircraft
gun, acting as a bodyguard for an enemy combatant); 248
o acting as a member of a weapons crew;o engaging in an act of sabotage; oro emplacing mines or improvised explosive devices;•

preparing for combat and returning from combat;•

planning, authorizing, or implementing a combat operation against the opposing party,
even if that person does not personally use weapons or otherwise employ destructive
force in connection with the operation; 249

246

Kenneth Watkin, Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed
Conflict, 98 AJIL 1, 17 (2004) (“The argument that civilians are protected unless engaged in overtly aggressive acts
like carrying weapons may be particularly difficult to maintain where armed groups are technically accorded civilian
status by virtue of not being considered lawful combatants. To the extent that civilians fulfill the same function as
combatants, either in the armed forces or as part of the organization of an ‘illegitimate’ nonstate actor, they are
logically subject to targeting under the same provisions of international humanitarian law.”).
247

2006 AUSTRALIAN MANUAL ¶5.36 (“Civilians are only protected as long as they refrain from taking a direct partin hostilities. … Civilians bearing arms and taking part in military operations are clearly taking part in hostilities;”);ICRC AP COMMENTARY 618-19 (¶1943) (“It seems that the word ‘hostilities’ covers not only the time that thecivilian actually makes use of a weapon, but also, for example, the time that he is carrying it, as well as situations inwhich he undertakes hostile acts without using a weapon.”).

248

2004 UK MANUAL ¶5.3.3 (“Whether civilians are taking a direct part in hostilities is a question of fact. Civilians
manning an anti-aircraft gun or engaging in sabotage of military installations are doing so.”).

249

See Public Committee against Torture in Israel, et al. v. Government of Israel, et al., HCJ 769/02, Israel Supreme
Court Sitting as the High Court of Justice, ¶37 (Dec. 11, 2005) (“We have seen that a civilian causing harm to thearmy is taking ‘a direct part’ in hostilities. What says the law about those who enlist him to take a direct part in the
hostilities, and those who send him to commit hostilities? Is there a difference between his direct commanders andthose responsible for them? Is the ‘direct’ part taken only by the last terrorist in the chain of command, or by theentire chain? In our opinion, the ‘direct’ character of the part taken should not be narrowed merely to the person
committing the physical act of attack. Those who have sent him, as well, take ‘a direct part’. The same goes for the

231

•

providing or relaying information of immediate use in combat operations, such aso acting as an artillery spotter or member of a ground observer corps or otherwise
relaying information to be used to direct an airstrike, mortar attack, or ambush; 250
ando acting as a guide or lookout for combatants conducting military operations; 251•

supplying weapons and ammunition, whether to conventional armed forces or non-statearmed groups, or assembling weapons (such as improvised explosive devices) in close
geographic or temporal proximity to their use, 252 such aso delivering ammunition to the front lines; oro outfitting and preparing a suicide bomber to conduct an attack.

5.8.3.2 Examples of Acts Not Considered Taking a Direct Part in Hostilities. The
following acts are generally not considered taking a direct part in hostilities that would deprive
civilians who perform them of protection from being made the object of attack. These examples
are illustrative and not exhaustive:•

mere sympathy or moral support for a party’s cause;•

general contributions made by citizens to their State’s war effort (e.g., buying war bonds
or paying taxes to the government that will ultimately be used to fund the armed forces);•

police services (e.g., police officers who maintain public order against common criminals

person who decided upon the act, and the person who planned it. It is not to be said about them that they are taking
an indirect part in the hostilities. Their contribution is direct (and active) (see Schmitt, at p. 529).”).
250

2013 GERMAN MANUAL ¶518 (“Accordingly, civilians who perform concrete actions that constitute direct
participation in hostilities (e.g. conducting military operations, transporting weapons and ammunition to combat
units, operating weapon systems, transmitting target data that leads immediately to the engagement of a military
objective, etc.) can be engaged as military objectives while performing such actions.”).
251

For example, 101st Airborne ROE Card, Iraq (2003), reprinted in CENTER FOR LAW AND MILITARY OPERATIONS,THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, I LEGAL LESSONS LEARNED FROM
AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS (11 SEPTEMBER 2001 - 1 MAY 2003) 315, 316 (2004) (“7.
Facts: Your unit comes under fire, you notice a young civilian woman who appears to be pointing to the location
where friendly troops are concealed, based on her actions, those locations are then targeted. Response: Shoot toeliminate the threat … .”).
252

See, e.g., United States v. Hamdan 6 (Dec. 19, 2007), reversed on different grounds, 696 F.3d 1238 (D.C. Cir.
2012) (“The Commission also finds that the accused directly participated in those hostilities by driving a vehicle
containing two surface-to-air missiles in both temporal and spatial proximity to both ongoing combat operations [inthe nearby town of Takta Pol and the more distant Kandahar]. … Although Kandahar was a short distance away, theaccused’s past history of delivering munitions to Taliban and al Qaeda fighters, his possession of a vehicle
containing surface to air missiles, and his capture while driving in the direction of a battle already underway,
satisfies the requirement of ‘direct participation.’”).

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during armed conflict); 253•

independent journalism or public advocacy (e.g., opinion journalists who write columns
supporting or criticizing a State’s war effort); 254•

working in a munitions factory or other factory that is not in geographic or temporalproximity to military operations but that is supplying weapons, materiel, and other goods
useful to the armed forces of a State; 255 or•providing medical care or impartial humanitarian assistance. 256

Although performing these activities does not make a person liable to being made the object of
attack, performing these activities also does not immunize a person from attack if that person
takes a direct part in hostilities or is otherwise lawfully made the object of attack.
5.8.3.3 Taking a Direct Part in Hostilities and Standards for the Use of Force in
Self-Defense. In the practice of the United States, the U.S. armed forces have been authorized touse necessary and proportional force in self-defense in response to hostile acts or demonstrated
hostile intent. 257
In some cases, hostile acts or demonstrated hostile intent may also constitute taking a253

Refer to § 4.23.1 (Police as Civilians).

254

Refer to § 4.24.1 (Status of Journalists – Generally Civilian). Cf. ICTY, Final Report to the Prosecutor by theCommittee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, ¶47(Jun. 13, 2000) (“Whether the media constitutes a legitimate target group is a debatable issue. If the media is used
to incite crimes, as in Rwanda, then it is a legitimate target. If it is merely disseminating propaganda to generate
support for the war effort, it is not a legitimate target.”).
255

BOTHE, PARTSCH, & SOLF, NEW RULES 303 (AP I art. 51, ¶2.4.2.2) (noting that during international armed
conflict, “workers in defense plants or those engaged in distribution or storage of military supplies in rear areas, do
not pose an immediate threat to the adversary and therefore would not be subject to deliberate individual attack”).
However, these individuals assume the risk of incidental injury as a result of attacks against those factories. Refer to§ 5.12.3.3 (Civilian Workers Who Support Military Operations In or On Military Objectives).

256

Principles Related to the Protection of Medical Care Provided by Impartial Humanitarian Organizations During
Armed Conflict, ¶I, attachment to Ash Carter, Secretary of Defense, Memorandum re: Principles Related to theProtection of Medical Care Provided by Impartial Humanitarian Organizations During Armed Conflict, Oct. 3,
2016 (“Medical care during armed conflict is an activity that is fundamentally of a neutral, humanitarian, and noncombatant character.”).
257

For example, CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION 3121.01B, Standing Rules ofEngagement/Standing Rules for the Use of Force for U.S. Forces, ¶6b(1) (June 13, 2005), reprinted in
INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT, THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER &SCHOOL, U.S. ARMY, OPERATIONAL LAW HANDBOOK 95 (2007) (“Unit commanders always retain the inherent rightand obligation to exercise unit self-defense in response to a hostile act or demonstrated hostile intent. Unlessotherwise directed by a unit commander as detailed below, military members may exercise individual self-defense in
response to a hostile act or demonstrated hostile intent.”); CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION
3121.01A, Standing Rules of Engagement for US Forces, Enclosure A, A-1 (Jan. 15, 2000), reprinted in
INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT, THE JUDGE ADVOCATE GENERAL'S SCHOOL, U.S. ARMY,
JA, OPERATIONAL LAW HANDBOOK 102 (2006) (“US forces always retain the right to use necessary andproportional force for unit and individual self-defense in response to a hostile act or demonstrated hostile intent.”).

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direct part in hostilities. However, hostile acts and demonstrated hostile intent in some respects
may be narrower than the concept of taking a direct part in hostilities. For example, althoughsupplying weapons and ammunition in close geographic or temporal proximity to their use is acommon example of taking a direct part in hostilities, it would not necessarily constitute a hostile
act or demonstrated hostile intent.
On the other hand, hostile acts and demonstrated hostile intent in some respects may bebroader than the concept of taking a direct part in hostilities. For example, the use of force in
response to hostile acts and demonstrated hostile intent applies outside hostilities, but taking a
direct part in hostilities is limited to acts that occur during hostilities. Thus, the concept of taking
a direct part hostilities must not be understood to limit the use of force in response to hostile acts
or demonstrated hostile intent.
In the practice of the United States, offensive combat operations against people who aretaking a direct part in hostilities have been authorized through specific rules of engagement.
5.8.4 Duration of Liability to Attack. There has been a range of views about the duration
for which civilians who have taken a direct part in hostilities forfeit protection from being madethe object of attack. 258
In the U.S. approach, civilians who have taken a direct part in hostilities must not bemade the object of attack after they have permanently ceased their participation because there
would be no military necessity for attacking them. Persons who take a direct part in hostilities,
however, do not benefit from a “revolving door” of protection. There may be difficult cases notclearly falling into either of these categories, and in such situations a case-by-case analysis of thespecific facts would be needed. 259
5.8.4.1 Permanently Ceased Participation in Hostilities. If a civilian has
permanently ceased participation in hostilities, then that person must not be made the object of
attack because there is no military necessity for doing so. 260 The assessment of whether a person
258

See, e.g., Nils Melzer, Background Paper – Direct Participation on Hostilities under International Humanitarian
Law – Expert Meeting of Oct. 25-26, 2004 34 (“At one end of the spectrum were experts who preferred narrowly
defining temporal scope and favoured strictly limiting loss of protection to the period where DPH is actually being
carried out. At the other end were experts who said that, once a person had undertaken an act constituting DPH, that
person must clearly express a will to definitively disengage and offer assurances that he or she will not resume
hostilities in order to regain protection against direct attack. However, opinions varied greatly and could not easily
be divided into two groups supporting distinct positions.”).
259

Public Committee against Torture in Israel, et al. v. Government of Israel, et al., HCJ 769/02, Israel Supreme
Court Sitting as the High Court of Justice, ¶40 (Dec. 11, 2005) (“These examples point out the dilemma which the‘for such time’ requirement presents before us. On the one hand, a civilian who took a direct part in hostilities once,or sporadically, but detached himself from them (entirely, or for a long period) is not to be harmed. On the other
hand, the ‘revolving door’ phenomenon, by which each terrorist has ‘horns of the alter’ (1 Kings 1:50) to grasp or a‘city of refuge’ (Numbers 35:11) to flee to, to which he turns in order to rest and prepare while they grant him
immunity from attack, is to be avoided (see Schmitt, at p. 536; Watkin, at p. 12; Kretzmer, at p. 193; DINSTEIN, at p.
29; and Parks, at p. 118). In the wide area between those two possibilities, one finds the ‘gray’ cases, about whichcustomary international law has not yet crystallized. There is thus no escaping examination of each and everycase.”).
260

Refer to § 2.3 (Humanity).

234

has permanently ceased participation in hostilities must be based on a good faith assessment of
the available information. 261
For example, a civilian might have engaged in an isolated instance of taking a direct partin hostilities. This isolated instance is likely to have involved multiple acts, because taking a
direct part in hostilities normally includes deploying or moving to a position of attack andexfiltrating from an attack. 262 However, if this participation was an isolated instance that will
not be repeated, then no military necessity for attacking that person exists after he or she hasceased taking a direct part in hostilities. Accordingly, the civilian must not be made the object of
attack after he or she has ceased taking a direct part in hostilities. However, there may be otherlegal consequences from this isolated instance of participation. For example, such civilians may,depending on the circumstances, be detained, interned, or prosecuted because of these actions. 263
5.8.4.2 No “Revolving Door” Protection. The law of war, as applied by theUnited States, gives no “revolving door” protection; that is, the off-and-on protection in a casewhere a civilian repeatedly forfeits and regains his or her protection from being made the objectof attack depending on whether or not the person is taking a direct part in hostilities at that exact
time. 264 Thus, for example, persons who are assessed to be engaged in a pattern of taking a
direct part in hostilities do not regain protection from being made the object of attack in the time
period between instances of taking a direct part in hostilities. 265

261

Refer to § 5.3 (Assessing Information Under the Law of War).

262

Refer to § 5.8.3.1 (Examples of Taking a Direct Part in Hostilities).

263

Refer to § 4.18 (Private Persons Who Engage in Hostilities).

264

See also Kenneth Watkin, Opportunity Lost: Organized Armed Groups and the ICRC ‘Direct Participation in
Hostilities’ Interpretive Guidance, 42 NEW YORK UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLITICS
641, 689 (2010) (“Further, on one level the term ‘revolving door’ evokes the idea of a form of carnival shooting
gallery, where soldiers must wait until an opponent pops out from behind a door to be shot at. At some point, thecredibility of the law begins to be undermined by suggesting an opponent can repeatedly avail themselves of suchprotection.”).
265

Kenneth Watkin, Opportunity Lost: Organized Armed Groups and the ICRC ‘Direct Participation in Hostilities’
Interpretive Guidance, 42 NEW YORK UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLITICS 641, 692 (2010)(“However, given the lack of credibility associated with the term, there can be no ‘revolving door’ of protection.
After the first involvement, any subsequent act demonstrating direct participation would start to provide the basis tobelieve that there is the beginning of a pattern of conduct that reflects an intention to regularly engage in the
hostilities. Repetitious participation can be considered in determining if such persons are in reality continuously
engaged in hostilities. When such participation occurs, affirmative disengagement would be required in order toestablish that such persons are no longer direct participants in hostilities.”). Cf. Bill Boothby, “And For Such TimeAs”: The Time Dimension to Direct Participation in Hostilities, 42 NEW YORK UNIVERSITY JOURNAL OF
INTERNATIONAL LAW AND POLITICS 741, 765-66 (2010) (“In my view, an alternative interpretation of the treaty
language is equally valid. According to this alternative view, the temporal element in the provision lies both in thephrase ‘unless and for such time’ and in the word ‘participates.’ … If, however, a person engages in repeated acts of
DPH, there is an evident artificiality in regarding that individual as having protected status during the intervals in
between. Experience shows that during those periods a further act of direct participation by the persistentparticipator is likely to be in prospect, and the likelihood is that during those intervals he will be preparing himself
for the next act, checking his equipment, obtaining any additional equipment or stores he may require,communicating with like-minded or otherwise involved individuals, refining his plan and so on. While some suchactivities may be DP in their own right, the more important point is that a person who is so engaged cannot be235

A “revolving door” of protection would place these civilians who take a direct part inhostilities on a better footing than lawful combatants, who may be made the object of attack evenwhen not taking a direct part in hostilities. 266 The United States has strongly disagreed withposited rules of international law that, if accepted, would operate to give the so-called “farmer byday, guerilla by night” greater protections than lawful combatants. 267 Adoption of such a rulewould risk diminishing the protection of the civilian population.
5.8.5 Civilians Who Take a Direct Part in Hostilities and the Law of War. Although theconcept of direct participation in hostilities may be discussed in contexts besides targeting, suchas in the context of criminal liability or detention, there are often significant differences between“taking a direct part in hostilities” for targeting purposes and the standards used for assessing
whether a civilian may be detained or prosecuted.
For example, whether someone may be made the object of attack for taking a direct partin hostilities is different from whether he or she may be prosecuted for his or her actions. In
some cases, domestic criminal liability for support to enemy armed groups is much broader thanwhat acts constitute “taking a direct part in hostilities.”
Similarly, the authority to detain enemy persons during wartime extends beyond
detaining those who have taken a direct part in hostilities. 268
5.9 PERSONS PLACED HORS DE COMBATPersons, including combatants, placed hors de combat may not be made the object of
attack. Persons placed hors de combat include the following categories of persons, provided
they abstain from any hostile act and do not attempt to escape:•persons in the power of an adverse party;•

persons not yet in custody, who have surrendered;•persons who have been rendered unconscious or otherwise incapacitated by wounds,
sickness, or shipwreck; and•persons parachuting from aircraft in distress.

5.9.1 Hors de Combat – Notes on Terminology. Hors de combat is a French phrase thatmeans “out of the battle.” It is generally used as a term of art to mean persons who may not bemade the object of attack because they are out of the fighting and who therefore must be treatedhumanely.

equated with a civilian who remains uninvolved in the conflict. To do so is to place at risk the respect, based onlaw, to be accorded to the civilian population.”).
266

Refer to § 5.7.1 (Armed Forces and Groups and Liability to Being Made the Object of Attack).

267

Refer to § 4.18.3 (Private Persons Who Engage in Hostilities – Lack of the Privileges of Combatant Status).

268

Refer to § 4.8.3 (Civilians – Detention); § 4.4.2 (Combatants – POW Status During Detention).

236

Hors de combat is used in Common Article 3 of the 1949 Geneva Conventions 269 and has
been defined in Article 41 of AP I. 270
5.9.2 Persons in the Power of an Adverse Party. Persons in the power of an adverse party
include all persons detained by an adverse party, such as POWs, unprivileged belligerents,
retained personnel, and civilian internees. As with other categories of persons hors de combat,
detainees must refrain from hostile acts or attempts to escape in order to be considered hors decombat. 271
5.9.3 Persons Who Have Surrendered. Persons who are not in custody but who havesurrendered are hors de combat and may not be made the object of attack. 272 In order to make aperson hors de combat, the surrender must be (1) genuine; (2) clear and unconditional; and (3)under circumstances where it is feasible for the opposing party to accept the surrender. 273
5.9.3.1 Genuine. The offer to surrender must be genuine. In addition to being
legally ineffective, feigning the intent to surrender can constitute perfidy. 274
5.9.3.2 Clear and Unconditional. The offer to surrender must be clear andunconditional.
Any arms being carried should be laid down. All hostile acts or resistance, ormanifestations of hostile intent, including efforts to escape or to destroy items, documents, or
equipment to prevent their capture by the enemy, would need to cease immediately for the offer
to be clear and unconditional. Raising one’s hands above one’s head to show that one is notpreparing to fire a weapon or engage in combat is often a sign of surrender. Waving a white flag
269

GWS art. 3(1) (requiring humane treatment for “[p]ersons taking no active part in the hostilities, including
members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds,
detention, or any other cause”); GWS-SEA art. 3(1) (same); GPW art. 3(1) (same); GC art. 3(1) (same).
270

AP I art. 41(2) (“A person is hors de combat if: (a) He is in the power of an adverse Party; (b) He clearly
expresses an intention to surrender; or (c) He has been rendered unconscious or is otherwise incapacitated bywounds or sickness, and therefore is incapable of defending himself; provided that in any of these cases he abstains
from any hostile act and does not attempt to escape.”).
271

Consider AP I art. 41(2) (“A person is hors de combat if: (a) He is in the power of an adverse Party; … provided
that in any of these cases he abstains from any hostile act and does not attempt to escape.”).

272

HAGUE IV REG. art. 23(c) (it is especially forbidden “[t]o kill or wound an enemy who, having laid down his
arms, or having no longer means of defence, has surrendered at discretion;”). Consider AP I art. 41(2) (“A person ishors de combat if: … (b) He clearly expresses an intention to surrender; … provided that in any of these cases heabstains from any hostile act and does not attempt to escape.”).
273

Harold Hongju Koh, Legal Adviser, Department of State, The Lawfulness of the U.S. Operation Against Osamabin Laden, May 19, 2011, 2011 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 558-59 (“Finally,
consistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin
Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptanceof a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing
force, under circumstances where it is feasible for the opposing force to accept that offer of surrender. But wherethat is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstancespresented here.”).
274

Refer to § 5.22.3 (Examples of Killing or Wounding by Resort to Perfidy).

237

technically is not a sign of surrender, but signals a desire to negotiate. 275
The surrender must be “at discretion,” i.e., unconditional. 276 A person who offers tosurrender only if certain demands are met would not be hors de combat until that offer has been
accepted.
5.9.3.3 Under Circumstances in Which It Is Feasible to Accept. For an offer ofsurrender to render a person hors de combat, it must be feasible for the opposing party to accept
the offer. 277 By way of comparison, a city may not be declared “undefended” (and thus
essentially surrendered) if it is not open for immediate physical occupation by opposing militaryforces. 278
The feasibility of accepting the surrender refers to whether it is practical and safe for the
opposing force to take custody of the surrendering persons in the circumstances. For example,
consider the situation of enemy soldiers who man an antiaircraft gun and shoot at an enemy
aircraft, and then who raise their hands as if to surrender seconds before a second aircraft attacks
their position. In the circumstances, it would not be feasible for the crew of the attacking aircraftto land and accept their surrender. 279 Similarly, a soldier fifty meters from an enemy defensive
position in the midst of an infantry assault by his unit could not throw down his weapon and raise
his arms (as if to indicate his desire to surrender) and reasonably expect that the defending unit
will be able to accept and accomplish his surrender while resisting the ongoing assault by his
unit. 280
Although the feasibility of accepting surrender includes consideration of whether it isfeasible to take custody of the persons offering to surrender, this does not include considerationof whether it is feasible to care for detainees after taking custody. Offers to surrender may not berefused because it would be militarily inconvenient or impractical to guard or care fordetainees. 281
5.9.4 Persons Rendered Unconscious or Otherwise Incapacitated by Wounds, Sickness,
275

Refer to § 12.4 (The White Flag of Truce to Initiate Negotiations).

276
HAGUE IV REG. art. 23(c) (it is especially forbidden “[t]o kill or wound an enemy who, having laid down his
arms, or having no longer means of defence, has surrendered at discretion;”) (emphasis added).
277

See FINAL REPORT ON THE PERSIAN GULF WAR 629 (“Surrender involves an offer by the surrendering party (aunit or an individual soldier) and an ability to accept on the part of his opponent. The latter may not refuse an offer
of surrender when communicated, but that communication must be made at a time when it can be received andproperly acted upon – an attempt at surrender in the midst of a hard-fought battle is neither easily communicated nor
received. The issue is one of reasonableness.”).
278

Refer to § 5.15.3.1 (Open for Immediate Physical Occupation).

279

Refer to § 14.9.3.2 (Feasibility of Air Units to Accept the Surrender of Ground Forces).

280

See SPAIGHT, WAR RIGHTS ON LAND 92-93 (“A party in a trench must all surrender, genuinely and unmistakably,
for a regiment, squadron, company or squad of men is not like a ship, which, when it ‘hath its bellyful of fighting,’hauls down its colours and is clearly out of the fight. There is no such homogeneity in a unit in land war. … It is thesafest rule for a commander to pay no heed to a white flag which is hoisted, in the midst of an action, by a few men
who form part of a more considerable force which still resists.”).
281

Refer to § 9.5.2.1 (Prohibition on Killing of POWs).

238

or Shipwreck. Persons who have been rendered unconscious or otherwise incapacitated bywounds, sickness, or shipwreck, such that they are no longer capable of fighting, are hors decombat. 282
Those “rendered unconscious” does not include persons who simply fall asleep. Sleeping
combatants generally may be made the object of attack. 283
Shipwrecked combatants include those who have been shipwrecked from any cause andincludes forced landings at sea by or from aircraft. 284
Persons who have been incapacitated by wounds, sickness, or shipwreck are in a helplessstate, and it would be dishonorable and inhumane to make them the object of attack. 285 In orderto receive protection as hors de combat, the person must be wholly disabled from fighting. 286 On
the other hand, many combatants suffer from wounds and sickness, but nonetheless continue tofight and would not be protected. 287
In many cases, the circumstances of combat may make it difficult to distinguish between
persons who have been incapacitated by wounds, sickness, or shipwreck and those who continue
to fight. 288 If possible, those seeking protection as wounded, sick, or shipwrecked, should maketheir condition clear. 289

282

Consider AP I art. 41(2) (“A person is hors de combat if: … (c) He has been rendered unconscious or isotherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself; provided that in anyof these cases he abstains from any hostile act and does not attempt to escape.”).
283

For example, Judy G. Endicott, Raid on Libya: Operation ELDORADO CANYON, in SHORT OF WAR: MAJOR USAF
CONTINGENCY OPERATIONS 1947–1997 (A. Timothy Warnock, Air Force Historical Research Agency ed., 2000)(describing Operation ELDORADO CANYON, in which the United States responded to the Berlin discotheque bombing
by conducting air strikes on multiple Libyan targets—including two military barracks—in the early hours of April
15, 1986).
284

Refer to § 7.3.1.2 (Shipwrecked).

285

GWS-SEA COMMENTARY 87 (“[I]t must be pointed out that the purpose of this provision [i.e., the first paragraphof Article 12 of the GWS-Sea], and indeed of the whole Convention, is to protect wounded, sick and shipwreckedpersons who, if they were not in this helpless state, could rightfully be attacked.”).

286

Cf. LIEBER CODE art. 71 (“Whoever intentionally inflicts additional wounds on an enemy already wholly
disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer death, if duly convicted,
whether he belongs to the Army of the United States, or is an enemy captured after having committed his
misdeed.”).
287

GWS COMMENTARY 136 footnote 1 (“Cases are frequent of soldiers who have heroically continued to fight inspite of serious wounds. It goes without saying that in so doing they renounce any claim to protection under theConvention.”).

288

GWS-SEA COMMENTARY 90 (“[D]uring a landing by armed forces it will not always be possible while the attackis in progress to distinguish between an attacker trying to reach land and a soldier in danger of drowning. Similarly,
in the case of persons specialized in under-water attacks, it may not always be evident when they are in peril andneed assistance as shipwrecked. In such instances, persons in distress who renounce active combat can only expect
the adversary to respect and rescue them if they make their situation clear, and of course provided the adversary sees
their signals.”).

289

Compare § 5.9.3.2 (Clear and Unconditional).

239

5.9.5 Persons Parachuting From an Aircraft in Distress. In general, persons, such as
aircrew or embarked passengers, parachuting from an aircraft in distress are treated as though
they are hors de combat, i.e., they must not be made the object of attack. 290
This protection is provided because a person descending by parachute is temporarily horsde combat just like someone who is shipwrecked 291 or unconscious. 292
5.9.5.1 No Hostile Acts or Attempts to Evade Capture. As with other categories
of persons hors de combat, the protection from being made the object of attack is forfeited if thepersons engage in hostile acts or attempt to evade capture.
Routine “slipping” to steer a parachute or similar actions to facilitate a safe parachutelanding do not constitute acts of evasion.
5.9.5.2 Persons Deploying Into Combat by Parachute. Persons deploying into
combat by parachute may be attacked throughout their descent, and upon landing.
Persons deploying into combat by parachute may include special operations orreconnaissance personnel, combat control teams, or airborne forces (i.e., specialized combat
forces trained to arrive at military objectives by parachute drops).
Persons deploying into combat by parachute may be attacked even if they deploy from anaircraft in distress (e.g., the enemy has attacked the aircraft to resist the assault).
It may be the case, however, that airborne forces are parachuting from an aircraft in
distress outside the context of an airborne assault. Since they would not be “deploying into
combat,” they would be hors de combat while descending by parachute.

290

1956 FM 27-10 (Change No. 1 1976) ¶30 (“The law of war does not prohibit firing upon paratroops or otherpersons who are or appear to be bound upon hostile missions while such persons are descending by parachute.
Persons other than those mentioned in the preceding sentence who are descending by parachute from disabledaircraft may not be fired upon.”); APPENDIX TO 1985 CJCS MEMO ON AP I 31 (“Article 42 of the Protocol prohibits
attacks on aircrew members descending by parachute from disabled aircraft. The United States regards such attacks
as prohibited under customary international law, and the US delegation argued for explicit recognition of such a ruleat the diplomatic conference which negotiated the Protocol.”). Consider AP I art. 42 (“1. No person parachuting
from an aircraft in distress shall be made the object of attack during his descent. … 3. Airborne troops are notprotected by this Article.”); Commission of Jurists to Consider and Report Upon the Revision of the Rules of
Warfare, General Report, Part II: Rules of Aërial Warfare, art. 20, Feb. 19, 1923, reprinted in 32 AJIL
SUPPLEMENT: OFFICIAL DOCUMENTS 12, 21 (1938) (“When an aircraft has been disabled, the occupants, whenendeavoring to escape by means of a parachute, must not be attacked in the course of their descent.”).
291

ICRC AP COMMENTARY 495 (¶1637) (“There is absolutely no doubt that the majority [of States at the diplomaticconference] considered that airmen in distress are comparable to the shipwrecked persons protected by the Second
Convention.”).
292
ICRC AP COMMENTARY 497 (¶1644) (“The airman who parachutes from an aircraft in distress is therefore
temporarily hors de combat, just as if he had lost consciousness, until the moment that he lands on the ground, andas long as he is incapacitated.”).

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5.10 PROPORTIONALITY IN CONDUCTING ATTACKSIn accordance with the principle of proportionality, combatants must not exercise theright to engage in attacks against military objectives in an unreasonable or excessive way. 293
Therefore, when prosecuting attacks against military objectives (i.e., the persons and objects that
may be made the object of attack), combatants must exercise due regard to reduce the risk ofincidental harm to the civilian population and other persons and objects that may not be made theobject of attack. In particular, the following rules apply:•

Combatants must take feasible precautions in planning and conducting attacks to reduce
the risk of harm to civilians and other persons and objects protected from being made theobject of attack; 294 and•Combatants must refrain from attacks in which the expected loss of civilian life, injury tocivilians, and damage to civilian objects incidental to the attack would be excessive in
relation to the concrete and direct military advantage expected to be gained. 295

5.10.1 Scope of Application of the Principle of Proportionality in Conducting Attacks.
The principle of proportionality in conducting attacks imposes duties that apply to the protectionof persons and objects that may not be made the object of attack. This principle does not impose
obligations intended to reduce the risk of harm to military objectives (i.e., persons and objects
that may be made the object of attack).
Although the prohibition on attacks expected to cause excessive harm to civilians andcivilian objects generally does not require consideration of military personnel and objects,
feasible precautions must be taken to reduce the risk of harm to military personnel and objects
that are protected from being made the object of attack, such as military personnel placed hors decombat.
5.10.1.1 Proportionality in Conducting Attacks and Military Objectives. The
principle of proportionality in conducting attacks does not impose obligations intended to reduce
the risk of harm to military objectives (i.e., persons and objects that may be made the object of
attack). 296 For example, an attack against an enemy combatant might also injure other enemy
combatants who were not the specific targets of the attack. The principle of proportionality inconducting attacks would not require that efforts be made to reduce the likelihood of harm toother enemy combatants or damage to other military objectives, even if this harm were an
unintended result of the attack.
5.10.1.2 Proportionality in Conducting Attacks and Protected Military Personnel
and Facilities. The prohibition on attacks expected to cause excessive incidental harm requires
293

Refer to § 2.4 (Proportionality).

294

Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk ofHarm to Protected Persons and Objects).
295

Refer to § 5.12 (Proportionality – Prohibition on Attacks Expected to Cause Excessive Incidental Harm).

296

Refer to § 5.4.6 (Force That May Be Applied Against Military Objectives).

241consideration of civilians and civilian objects, but this prohibition generally does not requireconsideration of military personnel and objects, even if they may not be made the object of
attack, such as military medical personnel, the military wounded and sick, and military medical
facilities. For example, treaty provisions articulating a prohibition on attacks expected to cause
excessive incidental harm do not reflect protections for military personnel who are protectedfrom being made the object of attack. 297 Those planning or conducting attacks may consider
such military personnel as a matter of practice or policy in applying the prohibition on attacks
expected to cause excessive incidental harm.
The exclusion of protected military personnel and military medical facilities from thisprohibition reflects such factors as, among others, the general impracticality of prohibiting
attacks on this basis during combat operations. 298 For example, the expected incidental harm toa sick-bay on a warship would not serve to exempt that warship from being made the object of
attack.
Nonetheless, feasible precautions must be taken to reduce the risk of harm to military
personnel and objects that are protected from being made the object of attack. 299 For example, inthe context of a deliberate, planned bombardment of a military objective near an identifiable
military hospital, it may be feasible to take precautions to reduce the risk of harming the militaryhospital, and such precautions must be taken.
5.10.2 Responsibility of Commanders for Implementing the Principle of Proportionality
in Conducting Attacks. Commanders, at all levels, have a great responsibility to exercise theleadership necessary to reduce the risk of harm to civilians and civilian objects. 300 Although the297Consider AP I art. 57(2)(a) (“Those who plan or decide upon an attack shall: … (iii) Refrain from deciding tolaunch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage tocivilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct militaryadvantage anticipated;”); ROME STATUTE art. 8(2)(b)(iv) (defining war crimes in international armed conflict for the
purposes of the Rome Statute to include “[i]ntentionally launching an attack in the knowledge that such attack willcause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe
damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall
military advantage anticipated;”).
298

Refer to § 7.8.2.1 (Incidental Harm Not Prohibited); § 7.12.2.5 (Acceptance of the Risk From Proximity to
Combat Operations).
299

See, e.g., TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 133 footnote 17 (“It is clear that hospital ships act
at their own risk whenever they place themselves in the immediate vicinity of legitimate military objectives. For
even though every effort must be made to avoid firing upon—or bombing—hospital ships, the presence of the lattercannot serve to exempt nearby military objectives from attack for fear that a hospital vessel might thereby suffer
incidental injury.”).

300

Defense Legal Policy Board, Report of the Subcommittee on Military Justice in Combat Zones, 60 (May 30,2013) (“Virtually all witnesses agreed that a moral, ethical command climate in combat that inculcates andmaintains U.S. values despite the difficulties of the mission or the particular area of operations is the single mostimportant factor in preventing civilian casualties, ensuring civilian casualty reporting, and appropriately addressing
reported incidents. Individual commanders, at all levels, together with their non-commissioned officers, have agreat responsibility in this regard. No substitute exists for ethical leadership manifested by the provision of training
in garrison and throughout deployments. Such training should demonstrate ethical responses to civilian
engagements, including incident reporting and investigations, and engender trust that civilian casualty investigations
are used to determine facts, and not just to uncover misconduct.”).

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specific responsibilities that individual combatants have to implement the principle ofproportionality will depend on their role and assigned military duties in planning or conducting
an attack, commanders are responsible for making the decisions and judgments required by theprinciple of proportionality in conducting attacks. 301
5.10.2.1 Need for Competent Authority to Make the Decisions and Judgments
Required by the Principle of Proportionality. As with other aspects of the law of war, thepersons within a party to a conflict who are responsible for making the decisions and judgments
required by the principle of proportionality are those who have the authority to make thesedecisions and judgments. 302 The specific responsibilities that individual combatants have toimplement the principle of proportionality will depend on their role and assigned military duties
in planning or conducting an attack. 303
The decisions and judgments required by the principle of proportionality normallyrequire authority over military operations. For example, assessing the military advantage
expected to be gained from an attack may require knowing the broader strategy being employedby the attacking party or knowing intelligence information about the strategic and operational
context in which the attack takes place. 304 Lower-level personnel may not be privy to thestrategic or operational significance of a specific attack, and thus may not be competent to301

HAGUE IV REG. art. 26 (“The officer in command of an attacking force must, before commencing abombardment, except in cases of assault, do all in his power to warn the authorities.”) (emphasis added); HAGUE IX
art. 6 (“If the military situation permits, the commander of the attacking naval force, before commencing thebombardment, must do his utmost to warn the authorities.”) (emphasis added). Cf. United Kingdom, Statement on
Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 78 (“The United Kingdom understands that the obligation tocomply with [art. 57] paragraph 2(b) only extends to those who have the authority and practical possibility to cancel
or suspend the attack.”); VI OFFICIAL RECORDS OF THE CDDH 212 (CDDH/SR.42, ¶43) (“Mr. BINDSCHEDLER(Switzerland) said that he was critical of paragraphs 2 and 3 of Article 50 because they lacked clarity, particularly
the words ‘Those who plan or decide upon an attack…’ in paragraph 2(a). That ambiguous wording might wellplace a burden or responsibility on junior military personnel which ought normally to be borne by those of higher
rank. The obligations set out in article 50 could concern the high commands only – the higher grade of the militaryhierarchy, and it was thus that Switzerland would interpret that provision.”) (ellipsis shown in original); id. at ¶¶4446 (“Mr. KUSSBACH (Austria) said that … His delegation considered that the precautions envisaged could only betaken at a higher level of military command, in other words by the high command. Junior military personnel could
not be expected to take all the precautions prescribed, particularly that of ensuring respect for the principle ofproportionality during an attack.”).
302

Refer to § 18.3.1.1 (Implementation of International Obligations by Persons With the Authority to Make theNecessary Decisions and Judgments Required by International Law).
303

2004 UK MANUAL ¶5.32.9 (“Those who plan or decide upon attacks are the planners and commanders and they
have a duty to verify targets, take precautions to reduce incidental damage, and refrain from attacks that offend the
proportionality principle. Whether a person will have this responsibility will depend on whether he has any
discretion in the way the attack is carried out and so the responsibility will range from commanders-in-chief andtheir planning staff to single soldiers opening fire on their own initiative.”); 2004 UK MANUAL ¶5.33.5 (“Inassessing whether the proportionality rule has been violated, the effect of the whole attack must be considered. That
does not, however, mean that an entirely gratuitous and unnecessary action within the attack as a whole would be
condoned. Generally speaking, when considering the responsibility of a commander at any level, it is necessary tolook at the part of the attack for which he was responsible in the context of the attack as a whole and in the light ofthe circumstances prevailing at the time the decision to attack was made.”).
304

Refer to § 5.12.2.1 (Considering the Advantage From the Attack as a Whole – In the Operational and StrategicContext).

243

evaluate the expected military advantage of the attack against the expected harm to civilians andcivilian objects. 305 Similarly, determinations about the feasibility of taking a precaution may
require the authority to direct and manage resources (e.g., allocating weapons systems andintelligence assets) or judgments about the acceptable degree of risk (e.g., to the lives of friendly
forces and to mission accomplishment). 306 For example, the principle of proportionality
ordinarily does not require military personnel to take actions, such as providing warnings, whena superior commander has already determined that such actions are not feasible because, forinstance, such actions could endanger mission accomplishment and the safety of friendly forces.
In the absence of specific direction to the contrary, subordinate commanders or
engagement authorities have the authority to make the corresponding decisions required by thelaw of war, such as the decision to cancel or suspend an attack in light of new information, inorder to effectuate the commander’s intent. 307
5.10.2.2 “Reasonable Military Commander” Standard for Proportionality
Decisions and Judgments. The commander’s decisions on proportionality must be reasonable. 308
For example, the commander must be able to explain the expected military importance of thetarget and why the anticipated civilian collateral injury or damage is not expected to be
excessive. 309
5.10.2.3 Subjective Aspects of the Decisions and Judgments Required by the
Principle of Proportionality. The decisions and judgments required by the principle ofproportionality in conducting attacks have subjective aspects. 310
305

BOTHE, PARTSCH, & SOLF, NEW RULES 366-67 (AP I art. 57, ¶2.8.1.3) (“In co-ordinated military operation, therelative importance of the military objective under attack in relation to the concrete and direct military advantage
anticipated is not a matter which can be determined by individual tank leaders, the commanders of lower echelon
combat units or individual attacking bomber aircraft. If assigned a fire or bombing mission they must assume thatan appropriate assessment has been made by those who assigned the mission. Thus, in this situation, the decision tocancel will have to be made at the level where the decision to initiate the attack was made.”).
306

Refer to § 5.2.3.2 (What Precautions Are Feasible).

307

Refer to § 5.10.2.5 (Discretion of Subordinates in the Conduct of Attacks).

308

ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign
Against the Federal Republic of Yugoslavia, ¶50 (Jun. 13, 2000) (“It is suggested that the determination of relativevalues must be that of the ‘reasonable military commander’. Although there will be room for argument in close
cases, there will be many cases where reasonable military commanders will agree that the injury to noncombatantsor the damage to civilian objects was clearly disproportionate to the military advantage gained.”).

309

See Department of the Air Force, The Judge Advocate General’s School, Air Force Operations and The Law, 18(3rd ed., 2014) (“If the commander can clearly articulate in a reasonable manner what the military importance of thetarget is and why the anticipated civilian collateral injury or damage is outweighed by the military advantage to begained, this will generally satisfy a ‘reasonable military commander’ standard.”); Department of the Air Force, The
Judge Advocate General’s School, Air Force Operations and The Law, 21 (2nd ed., 2009) (same); Department of
the Air Force, The Judge Advocate General’s School, Air Force Operations and The Law, 28 (1st ed., 2002)(substantially similar).
310

BOTHE, PARTSCH, & SOLF, NEW RULES 368 (AP I art. 57, ¶2.10.1) (“Like subparas. 2(a) (ii) and (iii),
implementation of this provision is dependent on upon the subjective judgment of the commanders concerned. In
this case a subjective determination is expected as to whether two or more targets for attack, offer a similar militaryadvantage.”).

244

Although the decisions and judgments required by the principle of proportionality must
be applied with common sense and good faith, 311 there nonetheless might be variation in how
reasonable persons would apply the principle of proportionality in a given circumstance. 312 Theprinciple of proportionality typically involves the comparison of “unlike quantities andvalues.” 313 Moreover, there may be disagreements among experts as to the precise requirementsof the law.
For example, it could often be the case that reasonable persons might disagree as towhether the expected civilian casualties from an attack would be excessive. 314 Similarly,
reasonable commanders might make different decisions in applying the principle ofproportionality. 315

311

ICRC AP COMMENTARY 683-84 (¶2208) (“Even if this system is based to some extent on a subjective evaluation,
the interpretation must above all be a question of common sense and good faith for military commanders. In every
attack they must carefully weigh up the humanitarian and military interests at stake.”). See also ICRC AP
COMMENTARY 395 (¶1393) (“Good faith is not a virtue which is the exclusive attribute of the interpreters of the law,
but is also imposed on those who enjoy a certain degree of freedom of action in the field, even though the heat ofbattle does not favour an objective view of things.”).
312

Janina Dill, Applying the Principle of Proportionality in Combat Operations, 4 (Oxford Institute for Ethics, Law
and Armed Conflict, December 2010) (“While the proportionality judgement call is thus pushed higher-up the chainof command as more civilian damage is expected to result from an attack, it remains an essentially subjective andpersonal matter. Interviews with practitioners suggest that professional experience and personal morality rather thana transparent and stable set of criteria determine what is considered proportionate. Military lawyers acknowledge
that, as a result, different professionals are likely to come to different conclusions about whether an anticipatedcollateral damage is excessive in the same situation, when applying the law in good faith. Commanders suggest
that, proportionality judgements, in reality, often boil down to asking ‘can the estimated collateral damage be further
reduced, through timing, choice of weapons or angle of attack.’ If the answer is no, the principle is considered to be
fulfilled.”).
313

See, e.g., Brief of the United States as Amicus Curiae in Support of Defendants-Appellees, Vietnam Association
for Victims of Agent Orange, et al., v. Dow Chemical Co., et al., 25-26 (Feb. 15, 2006) (“The plaintiffs argue that
the U.S. military’s use of herbicides was unlawful because the harm to persons and property caused by herbicide use
was disproportionate to the anticipated military advantage. … In order to adjudicate the plaintiffs’ claims, a court
would be required to balance the U.S. military’s interests in protecting our forces from ambush or other attack, andin weakening enemy forces, with the anticipated harms that might be caused by exposure to herbicides. Even apartfrom the significant uncertainty about the effects of Agent Orange and other herbicides, this balancing would be
inherently subjective since it would involve unlike quantities and values – e.g., the long-term health of civilians or
enemy soldiers exposed to herbicides, with the death of U.S. forces and the accomplishment of military
objectives.”).
314

Refer to § 5.12.3 (Determining Whether the Expected Incidental Harm Is Excessive).

315

ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign
Against the Federal Republic of Yugoslavia, ¶¶49-50 (Jun. 13, 2000) (“49. The questions which remain unresolved
once one decides to apply the principle of proportionality include the following: a) What are the relative values tobe assigned to the military advantage gained and the injury to non-combatants and or the damage to civilian objects?
b) What do you include or exclude in totaling your sums? c) What is the standard of measurement in time or space?
and d) To what extent is a military commander obligated to expose his own forces to danger in order to limit civilian
casualties or damage to civilian objects? 50. The answers to these questions are not simple. It may be necessary toresolve them on a case by case basis, and the answers may differ depending on the background and values of thedecision maker. It is unlikely that a human rights lawyer and an experienced combat commander would assign thesame relative values to military advantage and to injury to noncombatants. Further, it is unlikely that military245

A degree of deference should be given to commanders when assessing after the fact
whether a decision-maker has complied with the principle of proportionality. 316 In addition, an
assessment of whether a decision-maker has complied with the legal requirements must be basedon the information available to that person at the time. 317
5.10.2.4 Duty Not to Comply With Clearly Illegal Orders and the Principle of
Proportionality. In the context of the principle of distinction, it would often be clear whether agiven situation implicates the duty not to comply with clearly illegal orders to commit law of war
violations – such as the duty of a subordinate to refrain from complying with an order to attack
the civilian population. However, the nuances involved in applying the principle ofproportionality could make it more difficult to know whether an order given is clearly illegal.
The duty not to comply with orders that are clearly illegal also applies to violations of theprinciple of proportionality, in particular, the case of a commander who orders subordinates to
conduct an attack that is expected to result in civilian casualties that the commander himself or
herself acknowledges would be excessive.
Nonetheless, this duty must be understood in light of application of the principle that lawof war obligations are implemented by those with responsibility to make the decisions andjudgments required by the law of war, and in particular the point that subordinates might not becompetent to evaluate whether the requirements of proportionality had been met. 318
Subordinates ordinarily do not have an obligation to second-guess the judgments of theirsuperiors in relation to the principle of proportionality. As with other aspects of the law of war,
subordinates are not required to screen the orders of superiors for questionable points of legality,
and may, absent specific knowledge to the contrary, presume that orders have been lawfullycommanders with different doctrinal backgrounds and differing degrees of combat experience or national militaryhistories would always agree in close cases.”).
316

See, e.g., WILLIAM H. BOOTHBY, THE LAW OF TARGETING 126 (2012) (“There is a widely recognized margin of
appreciation such that criminal liability, for example before the International Criminal Court, will only arise if an
attack is intentionally launched in the knowledge that it will be clearly disproportionate.”); ICRC AP COMMENTARY
684 (¶2210) (“Despite these clarifications, the provision allows for a fairly broad margin of judgment, as statedabove; several delegations regretfully stressed this fact. In contrast, other delegations commended the fact that in[the] future military commanders would have a universally recognized guideline as regards their responsibilities tothe civilian population during attacks against military objectives.”).
317

Refer to § 5.3.2 (Decisions Must Be Made in Good Faith and Based on Information Available at the Time).

318

See also APPENDIX TO 1985 CJCS MEMO ON AP I 64-65 (“Under military law, members of the armed forces may,and should, refuse to obey an order to commit a crime, such as the shooting of prisoners of war or unarmed civilians.
Article 57, however, goes considerably beyond this, in allowing each individual combatant to call off an ‘attack’ (orat least his participation in it) if it appears to him that collateral damage ‘may’ be excessive to whatever militaryadvantage he is aware of. In order to overcome this defense in a trial by court-martial, the prosecution would haveto prove, beyond a reasonable doubt, that the possible collateral damage would not be excessive to the militaryadvantage gained. To do this would often require the declassification of information known to the accused’s
superiors and its discussion in a public trial. Finally, the accused might be able to prevail on this issue simply bydemonstrating a reasonable mistake of fact on his part--a reasonable belief, perhaps formed in part on the basis ofpropaganda reports in the public media, that collateral damage was excessive to any expected military advantage. …
If the United States ratifies Protocol I, therefore, it should do so subject to an understanding that this paragraph of
Article 57 only applies to commanders who have authority to terminate attacks.”).

246

issued. 319 If questions arise, service members should apply their training, refer to applicablepolicy and regulations, and direct questions through appropriate channels. 320
5.10.2.5 Discretion of Subordinates in the Conduct of Attacks. Commanders
often provide subordinates substantial discretion in the tactics of an attack, such as in theselection of individual targets and in the timing of the attack. In the absence of specific direction
to the contrary, subordinate commanders or engagement authorities have the authority to makethe corresponding decisions required by the law of war, such as the decision to cancel or suspend
an attack in light of new information, in order to effectuate the commander’s intent. 321 This isespecially important in situations where the subordinate is not in direct communication with thecommander and the commander does not have situational awareness. For example, acommander may provide subordinates broad discretion to conduct an attack in which
subordinates discover an unanticipated risk of civilian casualties. If receiving updated
instructions in light of this new information was not possible, the subordinates would beunderstood to have the authority to take additional precautions to mitigate this unanticipated risk
or even to refrain from conducting the attack if the subordinates believe that such measureswould best achieve the commander’s intent if the commander had known such information.
5.10.3 Implementation of Proportionality Through Military Procedures. As with otheraspects of the law of war, during U.S. military operations, commanders have implemented therequirements of the principle of proportionality through military procedures, such as rules ofengagement, doctrine, standard operating procedures, and special instructions. 322 In U.S.
practice, implementing procedures sometimes place more restrictions on military operations andare more protective of civilians than what would be required by the law of war. 323
Military authorities have developed procedures to assess before an attack the expectedcollateral damage or effects of an attack. 324 For example, lists of sensitive objects for which
319

Refer to § 18.3.2.1 (Clearly Illegal Orders to Commit Law of War Violations).

320

Refer to § 18.3.1.2 (Practical Ways in Which the Requirement to Comply With the Law of War in Good Faith isMet by Individual Service Members).
321

Compare § 18.3.2.2 (Commands and Orders Should Not Be Understood as Implicitly Authorizing Violations of
the Law of War).
322

Refer to § 18.7 (Instructions, Regulations, and Procedures to Implement and Enforce the Law of War).

323

Refer to § 5.1.2.1 (Applying Standards in the Conduct of Hostilities That Pose More Restrictions on Military
Operations and That Are More Protective of Civilians Than Required By the Law of War).
324

For example, JOINT PUBLICATION 3-60, Joint Targeting, p. II-16 (Jan. 31, 2013) (“CDE is a critical part of theeffects estimate step in the joint targeting process phase 3 (or in the ‘track’ step of phase 5 during dynamic targeting)when munitions are used on facilities. CJCSI 3160.01, No-Strike and the Collateral Damage Estimation
Methodology details a specific CDE process followed Department of Defense (DOD)-wide.”); JOINT PUBLICATION
3-60, Joint Targeting, p. II-16 (Apr. 13, 2007) (“CJCSM 3160.01A codifies the joint standards and methods for
estimating collateral damage potential, provides mitigation techniques, and assists commanders with weighingcollateral risk against military necessity and assessing proportionality within the framework of the military decisionmaking process. These joint standards and methods for conducting CDE apply across the range of military
operations. In addition, the CDEs that result from CJCSM 3160.01A are meant to inform decision makers andcommanders and are not decisions themselves. CDEs help senior leaders evaluate collateral risk against militarynecessity during the planning and execution of combat operations.”).

247

responsible commanders have imposed requirements for additional review or higher-levelapproval before the objects may be attacked (sometimes referred to as “no-strike lists”) havebeen developed, 325 as have procedures for presenting to more senior commanders for decisionpotential attacks on targets that involve higher risks of incidental harm. 326
These procedures help ensure the sound implementation of the requirements of theprinciple of proportionality. As a case in point, procedures for requesting higher-level approvalof targets that involve high risks of incidental harm allow for a better evaluation of the expected
military advantage from the attack (as it is likely that more senior commanders have a morecomprehensive understanding of the strategic and operational context), and allow more seniorcommanders to implement additional precautions with the greater resources under theircontrol. 327 Similarly, rules of engagement and military orders can be used to delineate the325

For example, FINAL REPORT ON THE PERSIAN GULF WAR 100 (“To help strike planners, CENTCOM target
intelligence analysts, in close coordination with the national intelligence agencies and the State Department,
produced a joint no-fire target list. This list was a compilation of historical, archaeological, economic, religious andpolitically sensitive installations in Iraq and Kuwait that could not be targeted. Additionally, target intelligence
analysts were tasked to look in a six-mile area around each master attack list target for schools, hospitals, andmosques to identify targets where extreme care was required in planning. Further, using imagery, tourist maps, andhuman resource intelligence (HUMINT) reports, these same types of areas were identified for the entire city of
Baghdad.”). Refer to § 5.18.4 (Other Feasible Precautions to Reduce the Risk of Harm to Cultural Property),
especially footnote 606.
326

For example, JOINT PUBLICATION 3-60, Joint Targeting, p. II-16 (Jan. 31, 2013) (“Targets with associatedcollateral damage concerns expected to exceed theater (combatant command) thresholds are referred either to
SecDef or the President using the sensitive target approval and review (STAR) process, detailed in CJCSI 3122.06,
Sensitive Target Approval and Review (STAR) Process.”); JOINT PUBLICATION 3-60, Joint Targeting, pp. II-10-II-11(Apr. 13, 2007) (“Targets with associated collateral damage concerns expected to exceed theater (combatantcommand) thresholds are referred either to the Secretary of Defense (SecDef) or President using the sensitive target
approval and review process, detailed in Chairman of the Joint Chiefs of Staff Instruction (CJCSI) 3122.06B,
Sensitive Target Approval and Review (STAR) Process. See also Appendix A, ‘Time Sensitive Target
Considerations’ and Appendix G, ‘Collateral Damage Estimation,’ for more detail.”).
327

See Geoff Corn, War, Law, and the Oft Overlooked Value of Process as a Precautionary Measure, 42
PEPPERDINE LAW REVIEW 419, 463-64 (2015) (“There is another subtle, but perhaps most important, benefit ofelevating certain proportionality judgments to higher echelons of command: an increasingly more expansive
operational perspective. Commanders and staffs at all levels of command focus inherently on their operationalsituation. As a result, commanders’ operational focuses will inevitably expand or contract depending on their levelof command. Proportionality judgments have profound tactical and strategic consequences. Where a commanderauthorizes an attack anticipating it will produce civilian casualties and the attack does in fact do so, those casualties
may become a source of condemnation by external observers, become a motivation for resistance by the enemy andcivilian population, or become a source of motivation for enemy forces. Any of these consequences posessignificant strategic risk for the overall military effort. In contrast, where a commander decides to forego an attack
because of anticipated risk to the civilian population, the decision may compromise tactical effectiveness, increase
the risk to friendly forces, and make mission accomplishment more difficult. Broadening the decision-making
commander’s operational perspective should logically enhance the ability to assess these tactical and strategic
consequences inherent in proportionality judgments. Thus, as this perspective increases at each higher echelon ofcommand, so too does the acceptable degree of risk associated with a proportionality judgment. Finally, it is a
simple axiom of military organizations that the range of combat resources increases with each higher level ofcommand. This is a highly significant benefit of reserving proportionality judgments to higher levels of command,
because as the judgment is progressively elevated, the commander entrusted with the judgment will be able toconsider a broader range of alternative targeting options. As a result, a difficult proportionality judgment for a lower
level commander may be obviated at a higher level of command because that commander may utilize an alternate248

circumstances and limitations under which subordinates will initiate and/or continue an attack. 328
5.10.4 Time Constraints and the Application of Proportionality. The time available to
make decisions and to take precautions is a major factor affecting the implementation of therequirements of the principle of proportionality. For example, the available time affects what
precautions are feasible, and the available time is a constraint in assessing whether an attack is
expected to cause excessive incidental harm. Thus, although the legal standard of
proportionality does not distinguish as such between, e.g., dynamic and deliberate targeting, theavailability of more time in the context of deliberate targeting generally allows for more actions
to be taken to reduce the risk of civilian casualties.
Training on, and application of, targeting procedures can help forces implement therequirements of the principle of proportionality even when there is little time to make targeting
decisions or to take precautions. Moreover, as with other law of war requirements, the principle
of proportionality does not preclude commanders from taking decisive action in doubtful cases,
but commanders must make decisions in good faith on the basis of the information available tothem. 329
5.10.5 Relationship Between the Requirement to Take Feasible Precautions in Planningand Conducting Attacks and the Prohibition on Attacks Expected to Cause Excessive Incidental
Harm. This manual describes the requirement to take feasible precautions in planning andconducting attacks and the prohibition on attacks expected to cause excessive incidental harm as
rules that are based on the principle of proportionality. Other sources may describe therelationships between the rules differently. 330 But this manual adopts this approach because therequirement to take feasible precautions in planning and conducting attacks and the prohibition
on attacks expected to cause excessive incidental harm are fundamentally connected andmutually reinforcing obligations.
U.S. military manuals reflect the fundamental connection between the requirement totake feasible precautions in planning and conducting attacks and the prohibition on attacks
expected to cause excessive incidental harm. 331 This connection is also reflected in themethod or means of attack to avoid the proportionality issue altogether, an option that did not exist for thecommander of the subordinate unit.”) (footnotes omitted).
328

Refer to § 1.6.5 (Rules of Engagement (ROE)); § 5.11.4 (Canceling or Suspending Attacks Based on New
Information Raising Concerns of Expected Civilian Casualties).
329

Refer to § 5.3.2 (Decisions Must Be Made in Good Faith and Based on Information Available at the Time).

330

E.g., Columbia, Constitutional Court, Plenary Chamber, Constitutional Case No. C-291/07, Judgment, Apr. 25,
2007, as reprinted and translated by the International Committee of the Red Cross at https://ihldatabases.icrc.org/customary-ihl/eng/docs/v2_cou_co_rule17 (“The precautionary principle is the cornerstone of anumber of specific rules which are all considered to have attained customary status and to be applicable in internal
armed conflicts … Among these rules is … the obligation of the parties to a conflict to take all feasible precautionsin the choice of means and methods of warfare with a view to avoiding, and in any event to minimizing, incidental
loss of civilian life, injury to civilians and damage to civilian objects. [footnote in original omitted]”).
331

See, e.g., 2007 NWP 1-14M ¶8.3.1 (“It is not unlawful to cause incidental injury to civilians, or collateral damage
to civilian objects, during an attack upon a legitimate military objective. The principle of proportionality requiresthat the anticipated incidental injury or collateral damage must not, however, be excessive in light of the militaryadvantage expected to be gained. Naval commanders must take all reasonable precautions, taking into account249

negotiating history of the treaty provisions that sought to codify the principle ofproportionality. 332 For example, the obligation to take precautions has been viewed as following
from the prohibition on attacks expected to result in excessive harm. 333 In addition, applying theprohibition on attacks expected to result in excessive harm has been viewed as a precaution. 334
The requirement to take feasible precautions in planning and conducting attacks and theprohibition on attacks expected to cause excessive incidental harm are mutually reinforcing
obligations. Taking precautions helps ensure that the prohibition is not violated, and ensuringthat the precautionary obligation has been complied with may help with the assessment of
whether a strike would be consistent with the prohibition. 335 However, feasible precautions must
be taken even when the attack is not expected to cause excessive incidental harm, and, evenwhen feasible precautions have been taken, an attack could still be prohibited as one expected tocause excessive incidental harm.
5.11 PROPORTIONALITY – FEASIBLE PRECAUTIONS IN PLANNING AND CONDUCTING ATTACKS TO
REDUCE THE RISK OF HARM TO PROTECTED PERSONS AND OBJECTS
Combatants must take feasible precautions in planning and conducting attacks to reduce
the risk of harm to civilians and other persons and objects protected from being made the objectof attack. 336

military and humanitarian considerations, to keep civilian casualties and damage to the minimum consistent withmission accomplishment and the security of the force.”); DEPARTMENT OF THE AIR FORCE PAMPHLET 110-34,
Commander’s Handbook on the Law of Armed Conflict, ¶3-8 (Jul. 25, 1980) (“It is not unlawful to cause incidental
injury or death to civilians or damage to civilian property during an attack on a legitimate military objective as
defined in chapter 2. This collateral damage should not, however, be excessive in light of the military advantage
anticipated from the attack, and in all operations, every feasible precaution should be taken to keep civilian
casualties and damage to a minimum.”).
332

XV OFFICIAL RECORDS OF THE CDDH 285 (CDDH/215/Rev. 1, ¶97) (“Paragraph 2 (a) of article 50 required
much time and effort to work out, but the other paragraphs were fairly quickly agreed upon. The so-called rule ofproportionality in paragraph 2 (a) iii was found ultimately to be acceptable when it was preceded by paragraph 2 (a)i and paragraph 2 (a) ii which prescribe additional precautions and phrased in terms of losses ‘excessive in relation
to the concrete and direct military advantage anticipated’, and was supplemented by paragraph 5 to make clear that it
may not be construed as authorization for attacks against civilians.”) (emphasis added).
333

1956 FM 27-10 (Change No. 1 1976) ¶39 (“Particularly in the circumstances referred to in the preceding
paragraph, loss of life and damage to property incidental to attacks must not be excessive in relation to the concreteand direct military advantage expected to be gained. Those who plan or decide upon an attack, therefore, must takeall reasonable steps to ensure not only that the objectives are identified as military objectives or defended places
within the meaning of the preceding paragraph but also that these objectives may be attacked without probablelosses in lives and damage to property disproportionate to the military advantage anticipated.”) (emphasis added).
334

Consider AP I art. 57(2) (“With respect to attacks, the following precautions shall be taken: … (a) Those whoplan or decide upon an attack shall: … (iii) Refrain from deciding to launch any attack which may be expected tocause 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;”).
335

Refer to § 5.12.3.2 (Feasibility of Taking Additional Precautions to Reduce the Risk of Incidental Harm).

336

See Executive Order 13732, United States Policy on Pre- and Post-Strike Measures To Address Civilian
Casualties in U.S. Operations Involving the Use of Force, 81 FEDERAL REGISTER 44485, 44485-86 (§2) (Jul. 1,
2016) (“In particular, relevant agencies shall, consistent with mission objectives and applicable law, including the250

As discussed in § 5.2.3.2 (What Precautions Are Feasible), what precautions are feasible
depends greatly on the context. 337 Moreover, the requirement to take feasible precautions should
be applied as part of the principle of proportionality in conducting attacks, and the discussion inthis section should be considered in light of the discussion in § 5.10 (Proportionality in
Conducting Attacks). 338
Feasible precautions in planning and conducting attacks may include, but are not limited
to, the following:•assessing the risks to civilians; 339•

identifying zones in which military objectives are more likely to be present or civilians
are more likely to be absent; 340•

providing effective advance warning before an attack that may affect the civilian
population; 341•

adjusting the timing of an attack; 342

law of armed conflict: … (iv) take feasible precautions in conducting attacks to reduce the likelihood of civilian
casualties, such as providing warnings to the civilian population (unless the circumstances do not permit), adjusting
the timing of attacks, taking steps to ensure military objectives and civilians are clearly distinguished, and taking
other measures appropriate to the circumstances;”); HAGUE IV REG. art. 27 (“In sieges and bombardments allnecessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitablepurposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are notbeing used at the time for military purposes.”); HAGUE IX art. 5 (“In bombardments by naval forces all the necessary
measures must be taken by the commander to spare as far as possible sacred edifices, buildings used for artistic,scientific, or charitable purposes, historic monuments, hospitals, and places where the sick or wounded are collected,
on the understanding that they are not used at the same time for military purposes.”); Harold Koh, Legal Adviser,
Department of State, Letter to Paul Seger, Legal Adviser of Switzerland regarding Switzerland’s Position on the
U.S. Reservation to Protocol III of the Convention on Certain Conventional Weapons, Dec. 30, 2009 (“In particular,
the U.S. reservation is consistent with article 57(2)(ii) and article 57(4) of the 1977 Additional Protocol I to the
Geneva Conventions. Article 57(4) provides that governments shall ‘take all reasonable precautions to avoid lossesof civilian lives and damage to civilian objects.’ Although the United States is not a party to Additional Protocol I,
we believe these provisions are an accurate statement of the fundamental law of war principle of discrimination.”).
Consider AP I art. 57(2) (“With respect to attacks, the following precautions shall be taken: (a) Those who plan or
decide upon an attack shall: … (ii) Take all feasible precautions in the choice of means and methods of attack with aview to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage tocivilian objects;”); AP I art. 57(4) (“In the conduct of military operations at sea or in the air, each Party to theconflict shall, in conformity with its rights and duties under the rules of international law applicable in armed
conflict, take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects.”).
337

Refer to § 5.2.3.2 (What Precautions Are Feasible).

338

Refer to § 5.10 (Proportionality in Conducting Attacks).

339

Refer to § 5.11.1 (Assessing the Risks to Civilians).

340

Refer to § 5.11.2 (Identifying Zones in Which Military Objectives Are More Likely to Be Present or Civilians
Are More Likely to Be Absent).
341

Refer to § 5.11.5 (Effective Advance Warning Before an Attack That May Affect the Civilian Population).

342

Refer to § 5.11.3 (Adjusting the Timing of the Attack).

251

•

cancelling or suspending attacks based on new information raising concerns of expectedcivilian casualties; 343•

weaponeering (e.g., selecting appropriate weapons, aim points); 344 and•selecting military objectives. 345

5.11.1 Assessing the Risks to Civilians. Assessments of the risks to civilians can include:1) general assessments of the risks to civilians and the effectiveness of efforts to reduce the risk
to civilians; 2) pre-strike assessments of expected civilian casualties; and 3) after-action
assessments and investigations.
5.11.1.1 General Assessments of the Risks to Civilians and the Effectiveness ofEfforts to Reduce the Risks to Civilians. In the planning of military operations, general
assessments (i.e., assessments not necessarily done in relation to a particular attack) of the risks
to civilians and efforts to reduce the risks to civilians can assist in efforts to reduce the risk ofincidental harm. For example, military authorities could identify places or objects posing
significant risks of incidental harm if struck and could compile them into a list. They could thenuse such information in planning efforts and when conducting specific attacks to reduce the riskof incidental harm.
5.11.1.2 Pre-Strike Assessments of Expected Civilian Casualties. Pre-strikeassessments of expected civilian casualties can assist in determining what other precautions arefeasible, as well as in determining whether a strike is expected to result in excessive incidental
harm. 346
5.11.1.3 After-Action Assessments and Investigations. Battle damage
assessments, as well as other reviews or investigations of incidents involving civilian casualties,
may be appropriate in order to identify measures to mitigate the likelihood of future incidents ofcivilian casualties. 347 Similarly, review or investigation may be appropriate after “close call”
incidents that do not cause civilian casualties but in which post-incident reporting reveals that a343

Refer to § 5.11.4 (Canceling or Suspending Attacks Based on New Information Raising Concerns of Expected
Civilian Casualties).
344

Refer to § 5.11.6 (Weaponeering (E.g., Selecting Appropriate Weapons, Aim Points)).

345

Refer to § 5.11.7 (Selecting Military Objective).

346

Refer to § 5.12.1 (Expected Loss of Civilian Life, Injury to Civilians, and Damage to Civilian Objects Incidental
to the Attack).
347

Executive Order 13732, United States Policy on Pre- and Post-Strike Measures To Address Civilian Casualties
in U.S. Operations Involving the Use of Force, 81 FEDERAL REGISTER 44485, 44485-86 (§2) (Jul. 1, 2016) (“Inparticular, relevant agencies shall, consistent with mission objectives and applicable law, including the law of armed
conflict: … (v) conduct assessments that assist in the reduction of civilian casualties by identifying risks to civilians
and evaluating efforts to reduce risks to civilians.”).

252

high risk of causing such casualties was not fully understood when relevant decisions were
made. 348
After such reviews, appropriate actions should be taken to reduce the risk of such
incidents in the future. 349 For example, such actions could include repairing or inspecting
equipment, retraining personnel, or changing applicable rules of engagement or operational
procedures.
Although battle damage assessments or other after-action reviews or investigations ofwhether and how many civilians were harmed by an attack may serve a number of useful
purposes, the actual results of an attack do not always provide useful information in assessing
whether the requirements of the principle of proportionality were met in conducting the attack.
The requirements of the principle of proportionality in conducting attacks are to be met based on
the information available at the time, and the responsibility of commanders is not to be assessedon the basis of information known only after the fact.
5.11.2 Identifying Zones in Which Military Objectives Are More Likely to Be Present or
Civilians Are More Likely to Be Absent. Identifying and designating zones in which military
objectives are more likely to be present or in which civilians are more likely to be absent may
also reduce the risk of harm to civilians or other protected persons and objects.
For example, a commander could decide to impose greater restrictions on attacks in areasin which civilians are known to be present. 350 Similarly, it may be possible to identify areas in
348

ARMY TECHNIQUES PUBLICATION 3-07.6, Protection of Civilians, ¶5-49 (Oct. 29, 2015) (“Civilian casualty
lessons do not come solely from actual civilian casualty incidents, but also from incidents that posed a high risk ofcivilian casualties which did not actually happen. Such near misses can offer valuable lessons and best practices.
While collecting information on near misses can be a challenge, Soldiers may be more willing to discuss theseexperiences more openly than those involving actual casualties. Leaders should ensure that these incidents are also
used for training, mentoring, and learning.”).
349

Ash Carter, Secretary of Defense, Memorandum Re: Investigation Review – Secretary of Defense Guidance,
Apr. 28, 2016 (“Following the airstrike in Kunduz, Afghanistan, on October 3, 2015, that resulted in civilian
casualties at the Doctors Without Borders Trauma Center, the investigation identified causal factors and specificdeficiencies. I am committed to ensuring that similar incidents do not occur in the future. Therefore, after
consulting with the Chairman, I am directing the Combatant Commands and the Services to take the following
actions within the next 120 days to improve the Joint Force and mitigate the potential for similar incidents in the
future: Conduct a comprehensive review of relevant policies, tactical directives, and rules of engagement (ROE) toclarify conflicting or confusing directives. Ensure they provide appropriate guidance for mission accomplishment,
including the prevention of civilian casualties, in the complex, changing operational environment. … Incorporate
lessons learned from the Kunduz strike in leadership development and operational training to emphasize the role ofindividual judgment and accountability in the execution of mission command.”).
350

For example, General Petraeus, Unclassified Excerpts from Tactical Directive, Aug. 1, 2010, reprinted inInternational Security Assistance Force – Afghanistan, Headquarters, General Petraeus Issues Updated Tactical
Directive: Emphasizes “Disciplined Use of Force,” Aug. 4, 2010 (“Prior to the use of fires, the commander
approving the strike must determine that no civilians are present. If unable to assess the risk of civilian presence,fires are prohibited, except under of the following two conditions (specific conditions deleted due to operational
security; however, they have to do with the risk to ISAF and Afghan forces). (NOTE) This directive, as with theprevious version, does not prevent commanders from protecting the lives of their men and women as a matter ofself-defense where it is determined no other options are available to effectively counter the threat.).”); U.S.
MILITARY ASSISTANCE COMMAND VIET-NAM DIRECTIVE 525-13, Military Operations: Rules of Engagement for the
Employment of Firepower in the Republic of Vietnam, ¶5g (May 1971), reprinted in 1975 DIGEST OF UNITED

253

which objects of the greatest military importance are located and to place additional restrictions
on attacks conducted outside these areas in order to limit unnecessary destruction. 351
5.11.3 Adjusting the Timing of the Attack. Adjusting the timing of an attack may reduce
the risk of incidental harm. For example, attacking a military objective when civilians are lesslikely to be present may be appropriate. 352 Similarly, it may be appropriate to wait until enemy
forces have departed from populated areas before attacking such forces in order to reduce therisk of civilian casualties. 353
STATES PRACTICE IN INTERNATIONAL LAW 814, 815 (“Specified Strike Zones (SSZ). An area designated for a
specific period of time by Government of South Viet-Nam (G.V.N.) RVNAF [Republic of Vietnam Armed Forces]in which there are no friendly forces or populace and in which targets may be attacked on the initiative of
U.S./FWMAF/RVNAF commanders. SSZ will not be referred to as ‘Free Fire Zones.’ Furthermore, the term ‘Free
Fire Zone’ will not be used under any circumstances.”).
351

For example, MALCOLM W. CAGLE & FRANK A. MANSON, THE SEA WAR IN KOREA 97 (1957) (“Vice Admiral
Struble’s orders to the bombardment forces clearly specified that there should be no promiscuous firing at the city
itself or at civilian installations. To achieve this, the entire objective area had been divided into 60 sub-areas.
Known military targets had been previously assigned, and those which offered the greatest potential hazard to ourlanding troops were circled in red. It had been agreed that any ship could fire into a red-circle area with or without a‘spot.’ In the uncircled areas, however, firing was permitted only if definite targets were found and an air spot wasavailable. This differentiation between types of areas was adopted to reduce destruction of nonmilitary targets to aminimum, to save the city of Inchon for occupation forces, and to avoid injury to civilian personnel. ‘The SeoulInchon area is inhabited by our South Korean Allies,’ said Struble in an order to his forces, ‘and our forces plan toutilize facilities in this area. Unnecessary destruction will impede our progress. Bombing and gunfire will be
confined to targets whose destruction will contribute to the conduct of operations – accurate gunfire and pinpoint
bombing against specific targets, rather than area destruction, is contemplated.’”).
352

For example, Jennifer O’Connor, General Counsel, Department of Defense, Remarks at New York University
School of Law: Applying the Law of Targeting to the Modern Battlefield, Nov. 28, 2016 (“Given the facts of thisspecific situation, including the intelligence that the cash was being used to pay ISIL fighters and conduct terrorist
operations, the targeting authority determined that the bulk cash was a legitimate military objective. The next stepthen for the targeting authority before approving the strike was to conduct a proportionality analysis. This bulk cash
storage site happened to be in an area where civilians were often present—as you might expect from a building thatused to be a civilian bank before ISIL turned it into a cash storage site. As a result of the high number of civilians in
the area, the targeting authority took specific steps to minimize potential harm to civilians by ordering the attack to
occur at a time when the potential for any civilian casualties was deemed to be the lowest.”); FINAL REPORT ON THE
PERSIAN GULF WAR 100 (noting that during Operation DESERT STORM “attacks on known dual (i.e., military andcivilian) use facilities normally were scheduled at night, because fewer people would be inside or on the streetsoutside.”).
353

For example, Joby Warrick, ISIS’s Second-in-Command Hid in Syria for Months. The Day He Stepped Out, theU.S. Was Waiting, THE WASHINGTON POST, Nov. 28, 2016 (“The Syrian who exhorted thousands of young Muslims
to don suicide belts appeared increasingly obsessed with his own safety, U.S. officials say. He banished cellphones,
shunned large meetings and avoided going outdoors in the daytime. He began sleeping in crowded tenements in anorthern Syrian town called al-Bab, betting on the presence of young children to shield him from the drones
prowling the skies overhead. But in late August, when a string of military defeats suffered by the Islamic State
compelled Adnani to briefly leave his hiding place, the Americans were waiting for him. A joint surveillance
operation by the CIA and the Pentagon tracked the 39-year-old as he left his al-Bab sanctuary and climbed into a carwith a companion. They were headed north on a rural highway a few miles from town when a Hellfire missile
struck the vehicle, killing both of them.”); FINAL REPORT ON THE PERSIAN GULF WAR 631 (“The concentration of
Iraqi military personnel and vehicles, including tanks, invited attack. CINCCENT decided against attack of the Iraqi
forces in Kuwait City, since it could lead to substantial collateral damage to Kuwaiti civilian property and could
cause surviving Iraqi units to decide to mount a defense from Kuwait City rather than depart. Iraqi units remaining
in Kuwait City would cause the Coalition to engage in military operations in urban terrain, a form of fighting that is254

5.11.4 Canceling or Suspending Attacks Based on New Information Raising Concerns ofExpected Civilian Casualties. Commanders may decide to cancel or suspend attacks based on
new information of expected civilian casualties or authorize subordinates to do so, in order toreduce the risk of harm to civilians and civilian objects. 354
Subordinates generally would not be authorized to suspend or cancel attacks contrary to
specific military orders because they disagree with the commander’s decisions and judgments inrelation to the principle of proportionality. 355 However, subordinate commanders or engagement
authorities would be required to report promptly new information of expected civilian casualties
or to cancel or suspend attacks in appropriate circumstances. For example, aircrews haverefrained from conducting an attack or have redirected a munition toward a different impact
location when concerns about civilian harm have become unexpectedly apparent. 356
Subordinates should also generally be understood to have the authority to make decisions
required by the law of war, such as the decision to cancel or suspend an attack in light of new
information, in order to effectuate the commander’s intent. 357 This is especially true when thosecommanders will not be able to maintain situational awareness of the risks of civilian casualties.
The decision to cancel or suspend an attack based on new information raising concerns of
expected civilian casualties does not necessarily mean that the attack would have been unlawful,such as by violating the prohibition against attacks expected to cause excessive incidental
harm. 358
5.11.5 Providing Effective Advance Warning Before an Attack That May Affect the
Civilian Population. Unless circumstances do not permit, effective advance warning must be

costly to attacker, defender, innocent civilians, and civilian objects. The decision was made to permit Iraqi forces toleave Kuwait City and engage them in the unpopulated area to the north.”).
354

Consider AP I art. 57(2) (“With respect to attacks, the following precautions shall be taken: … (b) An attack shallbe cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special
protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage tocivilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct militaryadvantage anticipated;”).

355

Refer to § 5.10.2.3 (Duty Not to Comply With Clearly Illegal Orders and the Principle of Proportionality).

356

For example, BBC NEWS, How ‘Shift Cold’ Works, Sept. 12, 2016 (“On 9 September 2015, an unmanned
coalition aircraft targeted a checkpoint, controlled by the so-called Islamic State, near Shaddadi in Syria. According
to the US Department of Defense: ‘After the aircraft’s weapon was released, a transient motorcycle approached thecheckpoint. The aircrew elected to ‘shift cold,’ or identify an alternate location for the weapon to impact, in flight toavoid any effects from the impact on the civilians on the motorcycle. The aircrew identified a nearby empty field
where the weapon impacted.’”).
357

Refer to § 5.10.2.4 (Provision of Substantial Discretion by Commanders to Subordinates).

358

Note that AP I art. 57(2) is framed differently and provides for the cancellation or suspension of attacks as aprecaution “if it becomes apparent that the objective is not a military one or is subject to special protection or thatthe attack 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.”
AP I art. 57(2).

255

given of an attack that may affect the civilian population. 359
5.11.5.1 Other Warning Requirements. In addition, warning requirements exist
before certain medical units, vessels, or facilities forfeit their protection from being made theobject of attack:•military medical units and facilities; 360•

ground medical transports; 361•

hospital ships and sick-bays in warships; 362•

civilian hospitals; 363 and•civilian hospital convoys. 364

5.11.5.2 Effective Advance Warning. The purpose of a warning is to facilitate theprotection of the civilian population so that civilians and the authorities in control of the civilian
population can take measures to reduce the risk that civilians will be harmed by military
operations. Although there is no set form for warnings, a warning should be designed toaccomplish this purpose to the extent feasible.
Warnings may be communicated to the authorities in control of the civilian population,such as the national leadership of the enemy State. 365 Warnings may also be delivered directly tothe civilian population through military information support operations (e.g., broadcasts, 366
359

HAGUE IV REG. art. 26 (“The officer in command of an attacking force must, before commencing abombardment, except in cases of assault, do all in his power to warn the authorities.”); HAGUE IX art. 6 (“If themilitary situation permits, the commander of the attacking naval force, before commencing the bombardment, must
do his utmost to warn the authorities.”); LIEBER CODE art. 19 (“Commanders, whenever admissible, inform theenemy of their intention to bombard a place, so that the noncombatants, 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 toinform the enemy. Surprise may be a necessity.”). Consider AP I art. 57(2)(c) (“Effective advance warning shall begiven of attacks which may affect the civilian population, unless circumstances do not permit.”).
360

Refer to § 7.10.3.2 (Due Warning Before Cessation of Protection).

361

Refer to § 7.11.1 (Protection of Ground Medical Transports on the Same Basis as That of Medical Units).

362

Refer to § 7.12.6.1 (Due Warning Before Cessation of Protection).

363

Refer to § 7.17.1.2 (Due Warning Before Cessation of Protection).

364

Refer to § 7.18.1 (Protection of Civilian Hospital Convoys on the Same Basis as That of Civilian Hospitals).

365

HAGUE IV REG. art. 26 (“The officer in command of an attacking force must, before commencing abombardment, except in cases of assault, do all in his power to warn the authorities.”) (emphasis added); HAGUE IX
art. 6 (“If the military situation permits, the commander of the attacking naval force, before commencing thebombardment, must do his utmost to warn the authorities.”) (emphasis added).
366

For example, Jim Garamone, U.S. Commando Solo II Takes Over Afghan Airwaves, AMERICAN FORCES PRESSSERVICE, Oct. 29, 2001 (describing the Commando Solo II flights that use broadcasts “to warn the Afghan
population to stay away from Taliban and Al Qaeda targets,” including one broadcast that warns civilians to “‘[s]tay
away from military installations, government buildings, terrorist camps, roads, factories or bridges’”); SPAIGHT, AIR
POWER AND WAR RIGHTS 242 (“An hour and a half before the Skoda armament works at Pilsen in Czechoslovakia

256leaflets 367) advising the civilian population of risk of harm if they are near military objectives.
Low passes of aircraft or warning shots may also be appropriate in certain circumstances. 368
The warnings may be general in nature; giving the specific time and place of an attack is
not required. 369

were attacked by Flying Fortresses of the 8th U.S.A.A.F. on 25 April, 1945, Supreme Allied Headquarters broadcast
the following warning: ‘Allied bombers are out in great strength to-day. Their destination may be the Skoda works.
Skoda workers get out and stay out until the afternoon.’”).
367

For example, Jim Garamone, Coalition Aircraft “Paper” Iraq With Leaflets, AMERICAN FORCES PRESS SERVICE,
Mar. 19, 2003 (stating that Coalition forces “dropped almost 2 million leaflets over Iraq” that “warned Iraqis to stayaway from military targets”); Report of the United Nations Command Operations in Korea for the Period 1-15 July
1952, enclosure to Note Dated 8 October 1952 From the Representative of the United States Addressed to theSecretary-General Transmitting the Forty-Ninth Report of the United Nations Command Operations in Korea in
Accordance with the Security Council Resolution of 7 July 1950 (S/1588 ), U.N. Doc. S/2805 (Oct. 9, 1952) (“Forapproximately one month prior to the raid on Pyongyang and other main supply targets, the United Nations
Command aircraft had dropped leaflets warning civilians to stay away from military targets. Immediately after the
strikes more leaflets were dropped telling civilians to beware of delayed action bombs and to stay away from bomb
craters. Every precaution was taken to attack only military targets and to prevent injury to non-combatants. … In
consonance with the United Nations policy of taking every possible step both to restore peace and to prevent
needless loss of life, United Nations Command leaflets and radio broadcasts are being used continually to warn
civilians in enemy-occupied northern Korea to move away from places where the Communists have concentrated
war material factories and military equipment, supplies and personnel. These warnings are a humanitarian measuretaken to minimize civilian loss of life in United Nations Command attacks on military targets.”).
368

For example, Department of Defense Briefing by Operation Inherent Resolve Spokesman Col. Warren (Nov. 18,
2015) (“In Al-Bukamal, we destroyed 116 tanker trucks, which we believe will reduce ISIL’s ability to transport its
stolen oil products. This is our first strike against tanker trucks, and to minimize risks to civilians, we conducted aleaflet drop prior to the strike. We did a show of force, by -- we had aircraft essentially buzz the trucks at low
altitude. So, I do have copy of the leaflet, and I have got some videos, so why don’t you pull the leaflet up. Let metake a look at it so I can talk about it. As you can see, it’s a fairly simple leaflet, it says, ‘Get out of your trucks now,and run away from them.’ A very simple message. And then, also, ‘Warning: airstrikes are coming. Oil trucks will
be destroyed. Get away from your oil trucks immediately. Do not risk your life.’ And so, these are the leaflets that
we dropped -- about 45 minutes before the airstrikes actually began. Again, we combine these leaflet drops withvery low altitude passes of some of our attack aviation, which sends a very powerful message.”); Major Thomas A.
Wagoner, Staff Judge Advocate, 15th Marine Expeditionary Unit (Special Operations Capable), After Action Reportfor Operation Iraqi Freedom, 7 (2003), reprinted in CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGEADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, I LEGAL LESSONS LEARNED FROM AFGHANISTANAND IRAQ: MAJOR COMBAT OPERATIONS (11 SEPTEMBER 2001 - 1 MAY 2003) 108 (2004) (“The one group thatreported success with warning shots was the LAR [Light Armored Reconnaissance] Company. They explained thatthe warning shots fired from their chain guns at vehicles coming towards them with unknown intentions tended tostop the vehicles so they could be searched. They surmised that the size of the LAR was a large part of the successin that vehicles clearly saw who was firing at them and rather than risk getting shot they stopped for Marine forces.
This as compared to infantry forces who were usually unable to see the intended beneficiaries of the warning shotsand vice versa.”); SPAIGHT, AIR POWER AND WAR RIGHTS 243 (“Before objectives in the French town of Annecy
were bombed on the night of 9 May, 1944, the alert was sounded by an Allied plane equipped with a siren. It
cruised over the town for twenty minutes before the first bombers arrived, with the result that the inhabitants hadtime to seek shelter and only those who disregarded the warning were injured.”).
369

U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability ofInternational Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 1991-1999 2057, 2064 (“A warning need not be specific. It may be a blanket warning,delivered by leaflets and/or radio, advising the civilian population of an enemy nation to avoid remaining inproximity to military objectives.”).

257

5.11.5.3 That May Affect the Civilian Population. The purpose of a warning tofacilitate the protection of the civilian population is so that civilians and the authorities in controlof the civilian population can take measures to reduce the risk that civilians will be harmed bymilitary operations. If the civilian population will not be affected by an attack, then there is no
obligation to provide a warning to facilitate its protection. 370
5.11.5.4 Unless Circumstances Do Not Permit. Circumstances not permitting thegiving of advance warning include where giving a warning would be incompatible withlegitimate military requirements, such as exploiting the element of surprise in order to provide
for mission accomplishment and preserving the security of the attacking force. 371
5.11.6 Weaponeering (E.g., Selecting Appropriate Weapons, Aim Points). Depending on
the circumstances, the process of “weaponeering” in a strike against a target can be used toreduce the risk of harm to civilians and civilian objects by selecting munitions of appropriate size
and type, as well as appropriate aim points, while offering the same or superior militaryadvantage in neutralizing or destroying a military objective. 372 For example, it may be
advantageous to employ incendiary weapons in attacking an adversary’s repository of biologicalweapons so as to prevent the biological agents from adversely affecting the civilian
population. 373
As with other precautions, the decision of which weapon to use will be subject to many
practical considerations. 374 For example, a commander may decide not to use precision-guided
munitions or cyber tools 375 because he or she determines it is necessary to preserve thosecapabilities for other engagements. 376

370

GREENSPAN, MODERN LAW OF LAND WARFARE 338-39 (“Naturally, there is no obligation to give notice where
no civilians remain, and only the military will come under fire.”).
371

U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability ofInternational Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 1991-1999 2057, 2064 (“The ‘unless circumstances do not permit’ recognizes the importanceof the element of surprise. Where surprise is important to mission accomplishment and allowable risk to friendly
forces, a warning is not required.”).
372

For example, Jim Michaels, Exclusive: Inside the Anti-Islamic State Air Campaign Command Center, USA
TODAY, Sept. 13, 2016 (“Analysts assign the target a collateral damage estimate based on its proximity to civilians
and the extent that danger to them can be lessened. If there is a risk of hitting nearby buildings, they mitigate therisk by choosing smaller bombs or a fuse that can delay the explosion, so, for example, a bomb would only detonate
after it penetrates the target. Military officers plot each bomb’s point of impact on a building or other target,
allowing them to measure precisely the blast radius of each explosive they will drop. The selection of munitions can
produce a precise impact. Recently, a communications tower near a school was hit so that when it collapsed, it fellaway from a cluster of nearby buildings.”).
373

Refer to § 6.14.3.2 (U.S. Reservation to CCW Protocol III on Incendiary Weapons).

374

Refer to § 5.2.3.2 (What Precautions Are Feasible).

375

Refer to § 14.9.2 (Selection of Weapons in Conducting Attacks From the Air Against Ground Military
Objectives); § 16.5.3.1 (Cyber Tools as Potential Measures to Reduce the Risk of Harm to Civilians or Civilian
Objects).
376

See, e.g., 2013 GERMAN MANUAL ¶1117 (“The law of armed conflict (LOAC) contains no obligation to use
precision guided ammunition. There may however be situations in which the obligation to discriminate between

258

5.11.7 Selecting Military Objectives. In planning or conducting an attack, the selectionof a military objective may reduce the risk of incidental harm. In particular, when attempting toachieve a particular military advantage through an attack, a commander may confront a choiceamong several military objectives for achieving that advantage. When facing such a choice,provided that all other factors are equal, the object to be selected for attack shall be the object theattack on which may be expected to cause the least danger to civilian lives and to civilian
objects. For example, in seeking to deny an adversary the ability to use a railroad network, it
may be possible to disable the railroad network just as effectively by striking the railroad lines
away from inhabited areas as by striking the railroad station located near civilians. 377
This rule does not dictate what choices a commander should consider, but presupposesthat the commander is confronted with a choice of potential military objectives to attack toachieve the desired military advantage. In other words, this rule does not prevent thecommander from attacking multiple military objectives or pursuing every military advantage heor she believes warrants pursuit.
When the choice of military objectives involves different risks and benefits potentiallyyielding different military advantages, this rule does not require that the object that may be
expected to cause the least danger to civilian lives and to civilian objects be chosen for attack.
For example, a commander could decide to attack a military objective involving higher risks ofcivilian casualties because the attack on that objective affords a greater likelihood of achieving
the military advantage.
5.11.7.1 AP I Provision on Choice Possible Between Several Military Objectives.
AP I provides that “[w]hen a choice is possible between several military objectives for obtaining
a similar military advantage, the objective to be selected shall be that the attack on which may be
expected to cause the least danger to civilian lives and to civilian objects.” 378 The United States
military targets and civilians/civilian objects or the obligation to avoid or minimise collateral damage cannot be
fulfilled without the use of such weapons.”) (internal cross-reference omitted); 2006 AUSTRALIAN MANUAL ¶8.38(“The existence of precision-guided weapons, such as GBU 10 and Harpoon missiles, in a military inventory does
not mean that they must necessarily be used in preference to conventional weapons even though the latter may cause
collateral damage. In many cases, conventional weapons may be used to bomb legitimate military targets without
violating the LOAC requirements. It is a command decision as to which weapon to use. This decision will be
guided by the basic principles of the LOAC: military necessity, avoidance of unnecessary suffering andproportionality.”); 2001 CANADIAN MANUAL ¶527(1) (“With the advent of modern technology many armed forces
are now able to deliver weapons on target with much greater precision. However, states are not limited to the use of
precision weapons and munitions. An attack by conventional, free-fall weapons or ‘dumb’ bombs is lawfulprovided that the overriding principles of proportionality and superfluous injury/unnecessary suffering as well asother applicable rules are not violated.”).
377

See ICRC AP COMMENTARY 687 (¶¶2227-28) (“In this field mention could be made of attacks launched against
enemy road and rail traffic; some belligerents have tried to attack the adversary only when this would not result insevere damage for the population. Instead of attacking railway stations, which are usually located in towns, therailway lines were hit at crucial points, but away from inhabited areas; the same action was taken with respect toroads. Such examples show that it is possible to choose objectives so that their destruction does not imperil the
population and civilian objects, while still gaining the same military advantage. There is no doubt with regard to[an] economic target of military importance, that it is possible to attack only certain parts the destruction of which
will result in paralyzing the whole structure.”).
378

AP I art. 57(3).

259

has expressed the view that this language is not a part of customary international law. 379
Whether this AP I provision is consistent with customary international law would depend on how
AP I Parties interpret it. If this AP I provision is interpreted as described in § 5.11.7 (Selecting
Military Objectives), then this provision could be understood to be consistent with customaryinternational law.
5.12 PROPORTIONALITY – PROHIBITION ON ATTACKS EXPECTED TO CAUSE EXCESSIVE
INCIDENTAL HARM
Combatants must refrain from attacks in which the expected loss of civilian life, injury tocivilians, and damage to civilian objects incidental to the attack would be excessive in relation to
the concrete and direct military advantage expected to be gained. 380
This prohibition should be applied as part of the principle of proportionality inconducting attacks, and the discussion in this section should be considered in light of the
discussion in § 5.10 (Proportionality in Conducting Attacks). 381
5.12.1 Expected Loss of Civilian Life, Injury to Civilians, and Damage to Civilian
Objects Incidental to the Attack. The totality of the expected loss of civilian life, injury tocivilians, and damage to civilian objects incidental to the attack must be considered. AP I uses
the phrase “a combination thereof” and an “or” to convey that the totality of the expected loss ofcivilian life, injury to civilians, and damage to civilian objects incidental to the attack is to beconsidered. 382

379

U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability ofInternational Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 1991-1999 2057, 2064 (“Paragraph 4B(4) contains the language of Article 57(3) of Protocol I,
and is not a part of customary law. The provision applies ‘when a choice is possible … ;’ it is not mandatory. An
attacker may comply with it if it is possible to do so, subject to mission accomplishment and allowable risk, or hemay determine that it is impossible to make such a determination.”) (amendment shown in Digest).
380

1956 FM 27-10 (Change No. 1 1976) ¶41 (“[L]oss of life and damage to property incidental to attacks must not
be excessive in relation to the concrete and direct military advantage expected to be gained. Those who plan or
decide upon an attack, therefore, must take all reasonable steps to ensure not only that the objectives are identified as
military objectives or defended places within the meaning of the preceding paragraph but also that these objectives
may be attacked without probable losses in lives and damage to property disproportionate to the military advantage
anticipated.”). Consider AP I art. 51(5)(b) (considering as a prohibited indiscriminate attack “[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.”); AP I art.
57(2)(a)(iii) (requiring that those who plan or decide upon an attack “[r]efrain from deciding to launch any 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;”).
381

Refer to § 5.10 (Proportionality in Conducting Attacks).

382

Consider AP I art. 51(5)(b) (considering as a prohibited indiscriminate attack “[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.”); AP I art.
57(2)(a)(iii) (requiring that those who plan or decide upon an attack “[r]efrain from deciding to launch any attack
which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a260

5.12.1.1 Priority in Considering the Loss of Civilian Life and Damage to Civilian
Objects. In light of the humanitarian objectives of the law of war, the expected loss of civilian
life and injury to civilians should be given greater consideration than the expected damage tocivilian objects. 383 Similarly, the expected damage to civilian objects (such as schools, hospitals,
and religious facilities) should be given greater consideration when such damage is expected to
involve the risk of harming civilians present inside such objects.
In light of the great importance of cultural property, expected damage to cultural property
should be afforded greater consideration than expected damage to ordinary property. 384
5.12.1.2 Loss of Life, Injury, and Damage Versus Mere Inconveniences or
Temporary Disruptions. Expected loss of civilian life, injury to civilians, and damage to civilian
objects must be considered. Mere inconveniences or temporary disruptions to civilian life neednot be considered in applying this rule. 385
For example, although the actual damage to a civilian marketplace from an attack on a
nearby military objective would be considered, the temporary disruption to commerce from theclosure of the marketplace due to the nearby attack would not need to be considered.
5.12.1.3 Foreseeable Harms Versus Remote Harms. The expected loss of civilian
life, injury to civilians, and damage to civilian objects is generally understood to mean such
immediate or direct harms foreseeably resulting from the attack. Remote harms that could result
from the attack do not need to be considered in applying this prohibition. The exclusion of
remote harms is based on the difficulty in accurately predicting the myriad of remote harms fromcombination thereof, which would be excessive in relation to the concrete and direct military advantage
anticipated;”).
383

U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability ofInternational Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 1991-1999 2057, 2063-64 (“While collateral damage to civilian objects should be minimized,
consistent with the above, collateral damage to civilian objects should not be given the same level of concern asincidental injury to civilians.”). Cf. BOTHE, PARTSCH, & SOLF, NEW RULES 368-69 (AP I art. 57, ¶2.10.2)(“Humanitarian inclinations would tend to suggest that the avoidance of danger to civilian lives should be preferredover that of property. This conclusion is supported by other provisions of Protocol I. For example, a higher
standard is established by Art. 51, para. 3, for loss of protection by civilians than that which is applicable under thetwo pronged test of Art. 52, para. 2, defining when objects may become military objectives and thus be subject toattack. Moreover, while an indiscriminate attack which causes excessive loss of civilian life or injury to civilians
may be a grave breach under Art. 85, para. 3, the excessive damage to civilian property can support a grave breach
only if the indiscriminate attack causes death or serious injury to civilian persons.”).
384

Refer to § 5.18.1 (Definition of Cultural Property).

385

See Yoram Dinstein, Distinction and Loss of Civilian Protection in International Armed Conflicts, 84 U.S.
NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES, 183, 186 (2008) (“Yet it must be borne in mind that not
every inconvenience to civilians ought to be considered relevant. In war-time, there are inevitable scarcities offoodstuffs and services. Indeed, food, clothing, petrol and other essentials may actually be rationed; buses and trains
may not run on time; curfews and blackouts may impinge on the quality of life; etc. These do not count in thecalculus of proportionality.”). Cf. WILLIAM H. BOOTHBY, THE LAW OF TARGETING 370 (2012) (“Issues of
proportionality do not of course arise where there is no attack. Thus where soft attack methods are adopted
resulting, perhaps, in inconvenience but neither injury nor damage, there is no requirement to consider thatinconvenience when deciding whether, and if so how, to undertake the military operation.”).

261

the attack (including the possibility of unrelated or intervening actions that might prevent or
exacerbate such harms) as well as the primary responsibility of the party controlling the civilian
population to take measures to ensure that population’s protection. 386
For example, if the destruction of a power plant would be expected to cause the loss ofcivilian life or injury to civilians very soon after the attack due to the loss of power at aconnected hospital, then such harm should be considered in assessing whether an attack is
expected to cause excessive harm. On the other hand, the attacker would not be required toconsider the economic harm that the death of an enemy combatant would cause to his or her
family, or the loss of jobs due to the destruction of a tank factory. 387 Similarly, in determining
the expected loss of civilian life, injury to civilians, and damage to civilian objects, the attacker
would not be required to consider the possibility that a munition might not detonate as intended
and might injure civilians much later after the attack. This is due to the difficulty in assessing
such risks and the responsibility of the party controlling the territory and the civilian population
to take steps with regard to the protection of the civilian population from unexploded
ordnance. 388
5.12.1.4 Harms Caused by the Attacking Force Versus Harms Caused by Enemy
Action or Beyond the Control of Either Party. The harm caused by the attacking forces’ actions
in conducting the attack must be considered. Harm caused by enemy action, or beyond thecontrol of either party, need not be considered.
For example, a commander directing an air operation would not need to consider civilians
injured or killed by counter-attacks from enemy air defense measures, such as spent surface-to386

Refer to § 5.2.1 (Responsibility of the Party Controlling Civilian Persons and Objects).

387

For example, Rear Admiral Thomas Wilson, Director of Intelligence, Joint Staff, DoD News Briefing, Apr. 22,
1999 (“Krusevac tractor plant in Serbia was a new target. You can see here assembly and engineering buildings
which were involved in manufacturing support or parts for tanks and APCs as well as for civilian vehicles, and we
had moderate to severe physical damage to these facilities with functional damage assessments being made at thistime. ... Q: At the Yugo factory there are tens of thousands of Yugoslav workers that can’t work. I take it the tractor
factory will put thousands out of work. Is that an intended strike against the economy of Milosevic? Rear Admiral
Wilson: The intent of the strike was to destroy their ability to sustain and repair military vehicles. It’s anunfortunate consequence of the leadership's decision to pursue their policies that’s impacting the Yugoslav
people.”).
388

Christopher Greenwood, Legal Issues Regarding Explosive Remnants Of War, Group of Government Experts ofStates Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons,
CCW/GGE/I/WP.10 (2002) 8 (“If, for example, cluster weapons are used against military targets in an area where
there are known to be civilians, then the proportionality test may require that account be taken both of the risk to thecivilians from sub-munitions exploding during the attack and of the risk from unexploded sub-munitions in thehours immediately after the attack. It is an entirely different matter, however, to require that account be taken of thelonger-term risk posed by [Explosive Remnants of War (ERW)], particularly of the risk which ERW can pose after aconflict has ended or after civilians have returned to an area from which they had fled. The degree of that risk turns
on too many factors which are incapable of assessment at the time of the attack, such as when and whether civilians
will be permitted to return to an area, what steps the party controlling that area will have taken to clear unexploded
ordnance, what priority that party gives to the protection of civilians and so forth. The proportionality test has to be
applied on the basis of information reasonably available at the time of the attack. The risks posed by ERW once theimmediate aftermath of an attack has passed are too remote to be capable of assessment at that time.”). Refer to§ 6.20.3 (Taking Feasible Precautions to Protect Civilians From Explosive Remnants of War).

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air measures or antiaircraft projectiles. 389 Similarly, the risk to the civilian population from thelegitimate deception activities of the defending force, such as jamming, smoke, or chaff, would
not need to be considered by the attacking force, although the defending force should consider
such risks as part of its obligations to take feasible precautions in defense. 390
When the attacking force causes harms that are the responsibility of the defending force
due to its use of voluntary human shields or due to the employment of civilian personnel in or on
military objectives, the responsibility of the defending force is a factor that may be considered indetermining whether such harm is excessive. 391
5.12.2 Concrete and Direct Military Advantage Expected to Be Gained. The “concreteand direct military advantage expected to be gained” must be considered.
The considerations in assessing a “definite military advantage” in the definition of“military objective” are also relevant in assessing the “concrete and direct military advantage
expected to be gained.” 392 For example, the military advantage may not be merely hypotheticalor speculative, although there is no requirement that the military advantage be “immediate.”
There must be a good faith expectation that the attack will make a relevant andproportional contribution to the goal of the military attack involved. 393 Such goals may include:(1) denying the enemy the ability to benefit from the object’s effective contribution to its military
action (e.g., using this object in its military operations); (2) improving the security of the389

See, e.g., FINAL REPORT ON THE PERSIAN GULF WAR 177-78 (During the 1991 Gulf War, “[t]here is also aprobability that some [incidental civilian] casualties occurred when unexploded Iraqi SAMs [surface-to-air missiles]
or AAA [antiaircraft artillery] fell back to earth. The often dense fire the Iraqis expended in attempts to shoot down
Coalition aircraft and cruise missiles almost certainly caused some destruction on the ground from malfunctioning
fuses or self-destruction features, as well as the simple impact of spent rounds.”).
390

Refer to § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party
Subject to Attack).
391

Refer to § 5.12.3.3 (Civilian Workers Who Support Military Operations In or On Military Objectives); § 5.12.3.4(Enemy Use of Human Shields).
392
New Zealand, Statement on Ratification of AP I, Feb. 8, 1988, 1499 UNTS 358 (“3. In relation to paragraph 5(b)of Article 51 and to paragraph 2(a)(iii) of Article 57, the Government of New Zealand understands that the militaryadvantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as awhole and not only from isolated or particular parts of that attack and that the term ‘military advantage’ involves avariety of considerations, including the security of attacking forces.”). Refer to § 5.6.7.3 (Definite Military
Advantage).
393

Australia, Statement on Ratification of AP I, Jun. 21, 1991, 1642 UNTS 474 (“It is further the understanding ofAustralia that the term ‘concrete and direct military advantage anticipated’, used in Articles 51 and 57, means a bonafide expectation that the attack will make a relevant and proportional contribution to the objective of the militaryattack involved.”); New Zealand, Statement on Ratification of AP I, Feb. 8, 1988, 1499 UNTS 358 (“It is further theunderstanding of the Government of New Zealand that the term ‘concrete and direct military advantage anticipated’,
used in Articles 51 and 57, means a bona fide expectation that the attack will make a relevant and proportional
contribution to the objective of the military attack involved.”). See also 2001 CANADIAN MANUAL ¶415(2) (“Aconcrete and direct military advantage exists if the commander has an honest and reasonable expectation that theattack will make a relevant contribution to the success of the overall operation.”).

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attacking force; 394 and (3) diverting enemy forces’ resources and attention.
5.12.2.1 Considering the Advantage From the Attack as a Whole – In the
Operational and Strategic Context. The military advantage expected from an attack is intended
to refer to the advantage gained from the attack considered as a whole, rather than only fromisolated or particular parts of an attack. 395 Similarly, “military advantage” is not restricted to
immediate tactical gains, but may be assessed in the full context of the war strategy. 396 The
military importance of a target often turns on its relationship to other targets within an
operational system, and the effect that disabling the target will have on the functions thatcomprise the adversary’s ability to wage war. 397 For example, an attack against a394

Australia, Statement on Ratification of AP I, Jun. 21, 1991, 1642 UNTS 473-74 (“In relation to paragraph 5(b) of
Article 51 and to paragraph 2(a)(iii) of Article 57, it is the understanding of Australia … that the term ‘militaryadvantage’ involves a variety of considerations including the security of attacking forces.”); New Zealand,Statement on Ratification of AP I, Feb. 8, 1988, 1499 UNTS 358 (“3. In relation to paragraph 5(b) of Article 51 andto paragraph 2(a)(iii) of Article 57, the Government of New Zealand understands … that the term ‘militaryadvantage’ involves a variety of considerations, including the security of attacking forces.”); 2001 CANADIANMANUAL ¶415(2) (“Military advantage may include a variety of considerations including the security of theattacking forces.”).
395

United Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 77 (“Re: Article 51 andArticle 57 In the view of the United Kingdom, the military advantage anticipated from an attack is intended to referto the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of
the attack.”); Australia, Statement on Ratification of AP I, Jun. 21, 1991, 1642 UNTS 473 (“In relation to paragraph5(b) of Article 51 and to paragraph 2(a)(iii) of Article 57, it is the understanding of Australia that references to the‘military advantage’ are intended to mean the advantage anticipated from the military attack considered as a wholeand not only from isolated or particular parts of that attack … .”); Germany, Statement on Ratification of AP I, Feb.
14, 1991, 1607 UNTS 526, 529 (“In applying the rule of proportionality in Article 51 and Article 57, ‘militaryadvantage’ is understood to refer to the advantage anticipated from the attack considered as a whole and not only
from isolated or particular parts of the attack.”); Netherlands, Statement on Ratification of AP I, Jun. 26, 1987, 1477
UNTS 300 (“With regard to Article 51, paragraph 5 and Article 57, paragraphs 2 and 3 of Protocol I: It is theunderstanding of the Government of the Kingdom of the Netherlands that military advantage refers to the advantage
anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack … .”).
396

U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability ofInternational Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 1991-1999 2057, 2064 (“The concept of ‘incidental loss of life excessive in relation to themilitary advantage anticipated’ generally is measured against an overall campaign.”). For example, FINAL REPORTON THE PERSIAN GULF WAR 611 (“An uncodified but similar provision is the principle of proportionality. It
prohibits military action in which the negative effects (such as collateral civilian casualties) clearly outweigh themilitary gain. This balancing may be done on a target-by-target basis, as frequently was the case during Operation
Desert Storm, but also may be weighed in overall terms against campaign objectives.”).
397

See, e.g., JOINT PUBLICATION 3-60, Joint Targeting, pp. II-5-II-6 (Jan. 31, 2013) (“While a single target may besignificant because of its own characteristics, the target’s real importance lies in its relationship to other targets
within an operational system. A target system is most often considered as a collection of assets directed to performa specific function or series of functions (see Figure II-4). While target systems are intra-dependent to perform a
specific function, they are also interdependent in support of adversary capabilities (e.g., the electric power system
may provide energy to run the adversary’s railroads that are a key component of their military logistic system).
System level target development links these multiple target systems and their components to reflect both their intraand interdependency that, in aggregate, contribute to the adversary capabilities. JIPOE helps target developers
prioritize an adversary’s target systems based on how much each contributes to the adversary’s ability to wage
war.”); JOINT PUBLICATION 3-05.5, Joint Special Operations Targeting and Mission Planning Procedures, p. II-5
(Aug. 10, 1993) (“A single target may be significant because of its own characteristics. Most often, its importancelies in its relationship to other targets.”).

264

communications relay that was a military objective might be expected to yield a much greater
military advantage when the attack was part of a strategy of coordinated attacks to disable theadversary’s command and control network than as an isolated attack. 398
Consideration of the military advantage of the entire attack in its operational and strategic
context ensures the proper consideration and allocation of responsibility to the appropriate levels
within the military hierarchy. 399 Lower-level personnel may not be competent to evaluate thebroader strategic and operational implications of the entire attack. 400
5.12.3 Determining Whether the Expected Incidental Harm Is Excessive. A potential
attack against a military objective is prohibited by this rule only when the expected incidental
harm is excessive in relation to the concrete and direct military advantage expected to be gained.
Determining whether the expected incidental harm is excessive does not necessarily lend
itself to quantitative analysis because the comparison is often between unlike quantities andvalues. 401 The evaluation of expected incidental harm in relation to expected military advantage
intrinsically involves both professional military judgments as well as moral and ethicaljudgments evaluating the risks to human life (e.g., civilians at risk from the attack, friendly
forces or civilians at risk if the attack is not taken).
On the one hand, striking an ammunition depot or a terrorist training camp would not be
prohibited because a farmer is plowing a field in the area. 402 On the other hand, an extraordinary398

For example, ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing
Campaign Against the Federal Republic of Yugoslavia, ¶78 (Jun. 13, 2000) (“The FRY command and control
network was alleged by NATO to comprise a complex web and that could thus not be disabled in one strike. … The
proportionality or otherwise of an attack should not necessarily focus exclusively on a specific incident. (See in thisregard para. 52, above, referring to the need for an overall assessment of the totality of civilian victims as against thegoals of the military campaign). With regard to these goals, the strategic target of these attacks was the Yugoslav
command and control network. The attack on the RTS building must therefore be seen as forming part of an
integrated attack against numerous objects, including transmission towers and control buildings of the Yugoslav
radio relay network which were ‘essential to Milosevic’s ability to direct and control the repressive activities of hisarmy and special police forces in Kosovo’ (NATO press release, 1 May 1999) and which comprised ‘a key elementin the Yugoslav air-defence network’ (ibid, 1 May1999).”).
399

2013 GERMAN MANUAL (“In accordance with a statement made by the Federal Republic of Germany upon thedeposit of the instrument of ratification of the Additional Protocols, a military advantage is the advantage expected
to result from the entire attack and not from the individual acts that constitute the attack (46). This ensures theproper consideration and allocation of responsibility to the appropriate levels within the military hierarchy.”).
400

Refer to § 5.10.2.1 (Need for Competent Authority to Make the Decisions and Judgments Required by the
Principle of Proportionality).
401

ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign
Against the Federal Republic of Yugoslavia, ¶48 (Jun. 13, 2000) (“The main problem with the principle ofproportionality is not whether or not it exists but what it means and how it is to be applied. It is relatively simple tostate that there must be an acceptable relation between the legitimate destructive effect and undesirable collateraleffects. … Unfortunately, most applications of the principle of proportionality are not quite so clear cut. It is mucheasier to formulate the principle of proportionality in general terms than it is to apply it to a particular set ofcircumstances because the comparison is often between unlike quantities and values. One cannot easily assess thevalue of innocent human lives as opposed to capturing a particular military objective.”).

402

ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign
Against the Federal Republic of Yugoslavia, ¶48 (Jun. 13, 2000) (“For example, bombing a refugee camp is265

military advantage would be necessary to justify an operation posing risks of collateral death or
injury to thousands of civilians. 403 In less clear-cut cases, the legal question of whether the
expected incidental harm is excessive may be a “highly open-ended” inquiry, and the answer
may be “subjective and imprecise.” 404 For this reason, States have chosen to apply a “clearly
excessive” standard for determining whether a criminal violation has occurred. 405

obviously prohibited if its only military significance is that people in the camp are knitting socks for soldiers.
Conversely, an air strike on an ammunition dump should not be prohibited merely because a farmer is plowing afield in the area.”); ROGERS, LAW ON THE BATTLEFIELD 64-65 (“Accepting at face value for the sake of legal
analysis a press report of a pilot whose attack on an army lorry and a busload of soldiers also killed a small boy in a
civilian car, this could not be said to have violated the proportionality principle.”).
403

See, e.g., GREENSPAN, MODERN LAW OF LAND WARFARE 335 (“[A]n attack on a war factory which is known to
be of minor importance cannot justify the incidental destruction of the whole town where it is situated.”). For
example, W. Hays Parks, The 1977 Protocols to the Geneva Convention of 1949, 68 U.S. NAVAL WAR COLLEGE
INTERNATIONAL LAW STUDIES 467, 470 (1995) (“During the Vietnam War, for example, the North Vietnamese
installed substantial concentrations of antiaircraft guns and missiles on the earthware dikes and dams surrounding
Haiphong and Hanoi. Military necessity warranted airstrikes against these positions. However, attack of thepositions with conventional ordnance would destroy not only the enemy positions but the dams as well. This would
result in massive flooding and in the probable deaths of several hundred thousand civilians, a cost U.S. authorities
concluded was disproportionate to the military advantage to be gained. When the mission finally was approved byPresident Nixon, it was executed with a clear proviso that only antipersonnel bombs, capable of neutralization of thepositions without substantial damage to the dikes, would be used.”).
404

Statement of Interest of the United States of America, Matar v. Dichter, 05 Civ. 10270 (WHP) (S.D.N.Y. Nov. 17,
2006), 2006 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 465, 471-72 (“Along similar lines,
plaintiffs cite Article 57 of Additional Protocol I, which provides, inter alia, that ‘[t]hose who plan or decide upon
an attack shall … [r]efrain from deciding to launch any attack which may be expected to cause incidental loss ofcivilian 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.’ Additional Protocol I, Art. 57, cl. 2(a)(iii).
Again, the rub lies in determining what counts as ‘excessive.’ Any number of intangibles must be [c]onsidered:
How important is the military objective sought to be achieved? What are the pros and cons of each option available
to achieve that objective? For each option, what is the probability of success? What are the costs of failure? What
are the risks of civilian casualties involved in each option? What are the risks of military casualties involved in each
option? How are casualties of either kind to be weighed against the benefits of the operation? In short, questions ofproportionality are highly open-ended, and the answers to them tend to be subjective and imprecise.”).
405

See, e.g., III OFFICIAL RECORDS OF THE UNITED NATIONS DIPLOMATIC CONFERENCE OF PLENIPOTENTIARIES ON
THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT 229, 232 (2002) (United States of America: proposal
regarding an annex on definitional elements for part 2 crimes, A/CONF.183/C.1/L.10) (“Proportionality. The
principle of proportionality prohibits attacks which are expected to cause incidental loss of civilian life, injury tocivilians, damage to civilian objects, or a combination thereof, which would be clearly excessive in relation to theoverall advantage anticipated;”); Germany, Federal Court of Justice, Federal Prosecutor General, Fuel Tankers Case,
Decision, Apr. 16, 2010, as reprinted and translated by the International Committee of the Red Cross at https://ihldatabases.icrc.org/customary-ihl/eng/docs/v2_cou_de_rule14_sectionb (“Even if the killing of several dozen
civilians would have had to be anticipated (which is assumed here for the sake of the argument), from a tacticalmilitary perspective this would not have been out of proportion to the anticipated military advantages. The literature
consistently points out that general criteria are not available for the assessment of specific proportionality because
unlike legal goods, values and interests are juxtaposed which cannot be ‘balanced’ … Therefore, considering theparticular pressure at the moment when the decision had to be taken, an infringement is only to be assumed in casesof obvious excess where the commander ignored any considerations of proportionality and refrained from acting‘honestly’, ‘reasonably’ and ‘competently’ … This would apply to the destruction of an entire village with hundredsof civilian inhabitants in order to hit a single enemy fighter, but not if the objective was to destroy artillery positionsin the village … There is no such obvious disproportionality in the present case. Both the destruction of the fueltankers and the destruction of high-level Taliban had a military importance which is not to be underestimated, not266

In determining whether the expected incidental harm would be excessive, the totality of
the circumstances must be considered. This holistic judgment should consider any relevant
moral, legal, and military factors.
5.12.3.1 The Military Concept of Economy of Force. As with the obligation totake feasible precautions, the prohibition on attacks expected to cause excessive incidental harm
involves military judgments. 406 Use of excessive and indiscriminate force is costly, highly
inefficient, and wasteful of scarce resources.
The principle of proportionality has been viewed as a legal restatement of the militaryconcept of economy of force. 407 Economy of force seeks to allocate the maximum possible
combat power on primary efforts through the judicious employment and distribution of forces
and the measured allocation of available combat power. 408
least because of the thereby considerably reduced risk of attacks by the Taliban against own troops and civilians.
There is thus no excess.”). Consider ROME STATUTE art. 8(2)(b)(iv) (defining “war crimes” for the purposes of the
Statute to include, in the context of international armed conflict, “[i]ntentionally launching an attack in theknowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or
widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to
the concrete and direct overall military advantage anticipated;”). See also U.S. RESPONSE TO ICRC CIHL STUDY
528 endnote 30 (“One of the U.S. concerns has been that Articles 35(3) and 55 [of AP I] fail to acknowledge thatuse of such weapons is prohibited only if their use is clearly excessive in relation to the concrete and direct overall
military advantage anticipated.”); FINAL REPORT ON THE PERSIAN GULF WAR 611 (“An uncodified but similar
provision is the principle of proportionality. It prohibits military action in which the negative effects (such as
collateral civilian casualties) clearly outweigh the military gain.”); BOTHE, PARTSCH, & SOLF, NEW RULES 309-10
footnote 30 (AP I art. 51, ¶2.6.2) (“As the two sides of the equation cannot be quantified, it seems that only an
obvious imbalance can be considered ‘disproportionate’ or ‘excessive’.”); APPENDIX TO 1985 CJCS MEMO ON AP I,
Annex: Draft Reservations and Understandings, 3 (providing a draft understanding that “in relation to Articles
51(5)(b), 52(2), and 57(2)(a)(iii) that the military advantage anticipated from an attack must be considered as awhole and not only from isolated or particular parts of the attack and that incidental civilian losses are excessive
only when tantamount to the total disregard for the safety of the civilian population.”).
406

Refer to § 5.2.3.3 (The Taking of Precautions and Law, Policy, and Practice).

407

General George S. Brown, Chairman of the Joint Chiefs of Staff, Address: Duke University School of Law, Oct.
10, 1974, reprinted in ADDRESSES AND STATEMENTS BY GENERAL GEORGE S. BROWN, USAF, CHAIRMAN, JOINTCHIEF OF STAFF 1974-1978 (1978) (“We recognize that wanton destruction and unnecessary suffering are both
violations of these military developed legal principles and counterproductive to the political military goals of the
Nation. The law of ‘proportionality’ is simply a legal restatement of the time honored military concept of ‘economy
of force.’”); 1989 NWP 9 ¶5.2 footnote 8, p. 5-8 (“Economy of force means that no more--or less--effort should be
devoted to a task than is necessary to achieve the objective. This implies the correct selection and use of weapons
and weapon systems, maximum productivity from available weapons platforms, and careful balance in the allocationof tasks. This principle is embodied in the fundamental legal principle of proportionality.”).
408

JOINT PUBLICATION 3-0, Joint Operations, A-2 (Aug. 11, 2011) (“e. Economy of Force (1) The purpose of
economy of force is to expend minimum essential combat power on secondary efforts in order to allocate themaximum possible combat power on primary efforts. (2) Economy of force is the judicious employment anddistribution of forces. It is the measured allocation of available combat power to such tasks as limited attacks,
defense, delays, deception, or even retrograde operations to achieve mass elsewhere at the decisive point andtime.”). See also CARL VON CLAUSEWITZ, ON WAR 213 (1989) (“If a segment of one’s force is located where it is
not sufficiently busy with the enemy, or if troops are on the march—that is, idle—while the enemy is fighting, thenthese forces are being managed uneconomically. When the time for action comes, the first requirement should bethat all parts must act: even the least appropriate task will occupy some of the enemy’s forces and reduce his overall
strength, while completely inactive troops are neutralized for the time being.”).

267

Although mere poor military judgment or substandard operational practice is not by itself
unlawful, if a strike would be so wasteful of resources as to be inconsistent with the principle ofeconomy of force, this is a factor counseling against taking the contemplated strike.
5.12.3.2 Feasibility of Taking Additional Precautions to Reduce the Risk of
Incidental Harm. Incidental harm is more likely to be regarded as excessive in attacks in which
it would be feasible to take additional precautions and those precautions are not taken. 409
The obligation to take feasible precautions is fundamentally connected to the prohibition
on attacks expected to cause excessive incidental harm, and the two obligations are mutually
reinforcing. 410 Thus, although the obligation to take feasible precautions applies even if an
attack is expected not to cause excessive incidental harm, incidental harm expected to result fromstrikes in which additional precautions are feasible, but have not been taken, would be more
likely to be considered excessive.
5.12.3.3 Civilian Workers Who Support Military Operations In or On Military
Objectives. In general, reasonable steps must be taken to separate the civilian population frommilitary objectives, such as by removing members of the civilian population from the vicinity of
military objectives and combat operations. 411 However, sometimes civilian personnel work in or
on military objectives in order to support military operations. For example, civilian workers
sometimes serve as members of military aircrews, as technical advisers on warships, and asworkers in munitions factories. Such persons assume a certain risk of injury. 412 Provided such
workers are not taking a direct part in hostilities, those determining whether a planned attack
would be excessive must consider such workers, and feasible precautions must be taken to409

Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk ofHarm to Protected Persons and Objects).
410

Refer to § 5.10.5 (Relationship Between the Requirement to Take Feasible Precautions in Planning andConducting Attacks and the Prohibition on Attacks Expected to Cause Excessive Incidental Harm).
411

Refer to § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party
Subject to Attack).
412

U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability ofInternational Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 1991-1999 2057, 2063 (“Likewise, civilians working within or in the immediate vicinity of alegitimate military objective assume a certain risk of injury.”). See also BOTHE, PARTSCH, & SOLF, NEW RULES 295(AP I art. 50, ¶2.2.2) (“By being within, or in the vicinity of a military objective, these civilians assume the risk ofcollateral injury from the effects of attack. It is also doubtful that incidental injury to persons serving the armed
forces within a military objective will weigh as heavily in the application of the rule of proportionality as that part ofthe civilian population which is not so closely linked to military operations.”); The Sixth Annual American Red
Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary
International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions: Remarks of Lieutenant
Colonel Burrus M. Carnahan, 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 505, 510(“State practice, on the other hand, suggests the existence of at least one intermediate category: persons who, while
not taking a direct part in hostilities, are so intimately connected with a military objective that they have forfeited theright to be free from risk of collateral damage.”); Waldemar A. Solf, Protection of Civilians Against the Effects ofHostilities under Customary International law and Under Protocol I, 1 AMERICAN UNIVERSITY INTERNATIONALLAW REVIEW 117, 131 (1986) (“Thus, while a civilian may not lose his protection against individualized attack
while working in a munitions plant, he assumes the risk of collateral injury when he is in the vicinity of themunitions plant, although he continues to retain full protection while at home.”).

268

reduce the risk of harm to them. Those making such determinations may consider all relevantfacts and circumstances.
The expected harm to civilian members of military aircrews on military aircraft orcivilian technical advisers on warships does not render military aircraft or warships immune
from attack. 413 Similarly, munitions factories have not been deemed to be immune from attack
just because of the presence of civilian workers inside the factory. 414
5.12.3.4 Enemy Use of Human Shields. Adversary use of human shields canpresent complex moral, ethical, legal, and policy considerations. 415 Use of civilians as humanshields violates the rule that protected persons may not be used to shield, favor, or impede
military operations. 416 The party that employs human shields in an attempt to shield military413

2001 CANADIAN MANUAL ¶425 (“For targeting purposes, the presence of civilians who are authorized toaccompany the armed forces without actually being members thereof (such as crews of military aircraft, warcorrespondents, supply contractors or members of services responsible for the welfare of the armed forces) does notrender a legitimate target immune from attack. Such persons run the risk of being attacked as part of a legitimate
target.”).
414

See, e.g., Spain, Orientaciones. El Derecho de los Conflictos Armadas, Tomo 1, Publicacion OR7-0004 (Edicion
Segunda), Mando de adiestramiento y Doctrina, Direccion de Doctrina, Organica y Materiales, Nov. 2, 2007, § 4.4e,
as reprinted and translated by the International Committee of the Red Cross at https://www.icrc.org/customaryihl/eng/docs/v2_rul_rule8_sectioni (“Indirect objectives are those that cannot be directly attacked, but may suffer theconsequences of an attack on a military objective. Civilians … are considered to be indirect objectives that may
suffer the effects of an attack on a legitimate military target in the following cases: - presence in the vicinity of amilitary objective, with a view to shielding it from attacks; - activities that support military operations (labour units,
workers in weapons factories, etc.).”) (ellipsis in ICRC reprint); Spain, Orientaciones. El Derecho de los Conflictos
Armados, Publicacion OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejercito, Division de Operaciones,Mar. 18, 1996, Vol. I, §4.4e, as reprinted and translated by the International Committee of the Red Cross athttps://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule8_sectioni (“indirect objectives” are objectives “which may
not be the object of a direct attack but which can suffer the consequences of an attack upon a military objective.
Such is the case for civilians … who may suffer the effects of an attack upon a legitimate military objective due to: –their proximity to a military objective aimed at shielding that objective against attack; – their carrying out activities
supporting military operations (units of workers, workers in arms factories, etc.”) (ellipsis in ICRC reprint); Federal
Republic of Germany, Federal Ministry of Defence, Humanitarian law in Armed Conflicts Manual ¶445 (August1992) (“Civilians present in military objectives are not protected against attacks directed at these objectives; thepresence of civilian workers in an arms production plant, for instance, will not prevent opposing armed forces fromattacking this military objective.”); Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Reglement
51.7/II f, Armee Suisse, 1987, Article 28 and commentary, as reprinted and translated by the International
Committee of the Red Cross at https://www.icrc.org/customary-ihl/eng/docs/v2_cou_ch_rule8_sectioni (“Civilians
who are inside or in the immediate vicinity of military objectives run the risks to which the military objectives are
exposed. For example, the presence of civilian workers inside a weapons factory does not prevent the enemy fromattacking this military objective.”).
415

Cf. Presidential Policy Directive 30, U.S. Nationals Taken Hostage Abroad and Personnel Recovery Efforts, June24, 2015 (“The United States will use every appropriate resource to gain the safe return of U.S. nationals who areheld hostage. But the United States Government will make no concessions to individuals or groups holding U.S.
nationals hostage. It is United States policy to deny hostage-takers the benefits of ransom, prisoner releases, policychanges, or other acts of concession. This policy protects U.S. nationals and strengthens national security byremoving a key incentive for hostage-takers to target U.S. nationals, thereby interrupting the vicious cycle of
hostage-takings, and by helping to deny terrorists and other malicious actors the money, personnel, and otherresources they need to conduct attacks against the United States, its nationals, and its interests.”).
416

Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military
Operations).

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objectives from attack assumes responsibility for their injury, although the attacker may share
this responsibility if it fails to take feasible precautions. 417
If civilians are being used as human shields, provided they are not taking a direct part inhostilities, they must be considered as civilians in determining whether a planned attack would
be excessive, and feasible precautions must be taken to reduce the risk of harm to them. 418
However, the enemy use of voluntary human shields may be considered as a factor in assessing
the legality of an attack. Based on the facts and circumstances of a particular case, thecommander may determine that persons characterized as voluntary human shields are taking a
direct part in hostilities. 419
5.13 ATTACKS ON FACILITIES, WORKS, OR INSTALLATIONS CONTAINING DANGEROUS FORCES
Certain facilities containing dangerous forces, such as dams, nuclear power plants, or
facilities producing weapons of mass destruction, may constitute military objectives. There may
be a number of reasons for their attack, such as denial of electric power to military sources, useof a dangerous facility (e.g., by causing release from a dam) to damage or destroy other military
objectives, or to pre-empt enemy release of the dangerous forces to hamper the movement oradvance of U.S. or allied forces. 420
Attack of facilities, works, or installations containing dangerous forces, such as dams,
nuclear power plants, or facilities producing weapons of mass destruction, is permissible so longas it is conducted in accordance with other applicable rules, including the rules of discriminationand proportionality. 421 In light of the increased potential magnitude of incidental harm,
additional precautions, such as weaponeering or timing the attack such that weather conditions
would minimize dispersion of dangerous materials, may be appropriate to reduce the risk that therelease of these dangerous forces may pose to the civilian population. 422
5.13.1 AP I Provisions on Works and Installations Containing Dangerous Forces. Article
417

Refer to § 5.16.5 (Responsibility for Harm to Human Shields). See also 2004 UK MANUAL ¶2.7.2 (“Even where
human shields are being used, the proportionality rule must be considered. However, if the defenders put civilians
or civilian objects at risk by placing military objectives in their midst or by placing civilians in or near military
objectives, this is a factor to be taken into account in favour of the attackers in considering the legality of attacks on
those objectives.”) (footnote omitted).
418

Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk ofHarm to Protected Persons and Objects).
419

Refer to § 5.8.3 (“Taking a Direct Part in in Hostilities”).

420

For example, Mark L. Evans and C. Ross Bloodsworth, The Dambusters at Hwachon, NAVAL AVIATION NEWS22, 23 (May-Jun. 2001) (explaining the military significance of Hwachon Dam during the Korean war by noting thatthe enemy’s control of the facility allowed them to “flood the valley and stop further UN advances” or “[i]f theyheld back the water by closing the gates, the river would be lowered to fordable depths and enable communist
infiltration across the river against the exposed allied flanks.”).
421

Refer to § 5.5 (Discrimination in Conducting Attacks); § 5.12 (Proportionality – Prohibition on Attacks Expected
to Cause Excessive Incidental Harm).
422

Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk ofHarm to Protected Persons and Objects).

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56 of AP I provides special rules for works and installations containing dangerous forces. For
example, “[w]orks or installations containing dangerous forces, namely dams, dykes and nuclear
electrical generating stations, shall not be made the object of attack, even where these objects are
military objectives, if such attack may cause the release of dangerous forces and consequent
severe losses among the civilian population.” In addition, Article 56 of AP I provides immunityfrom attack to combatants and military equipment stationed or placed around works andinstallations containing dangerous forces “for the sole purpose of defending the protected
works.”The United States has objected to this article of AP I. 423 In ratifying AP I, other States
have taken reservations from this article. 424 Insofar as Article 56 of AP I deviates from theregular application of the principles of distinction and proportionality, the U.S. view has beenthat it does not reflect customary international law applicable in international and noninternational armed conflicts.
5.14 FEASIBLE PRECAUTIONS TO REDUCE THE RISK OF HARM TO PROTECTED PERSONS ANDOBJECTS BY THE PARTY SUBJECT TO ATTACK
Outside the context of conducting attacks (such as when conducting defense planning orother military operations), parties to a conflict should also take feasible precautions to reduce therisk of harm to protected persons and objects from the effects of enemy attacks. 425 In particular,
423

See The Position of the United States on Current Law of War Agreements: Remarks of Judge Abraham D.
Sofaer, Legal Adviser, United States Department of State, Jan. 22, 1987, 2 AMERICAN UNIVERSITY JOURNAL OF
INTERNATIONAL LAW AND POLICY 460, 468 (1987) (“Article 56 of Protocol I is designed to protect dams, dikes, andnuclear power plants against attacks that could result in ‘severe’ civilian losses. As its negotiating history indicates,
this article would protect objects that would be considered legitimate military objectives under customaryinternational law. Attacks on such military objectives would be prohibited if ‘severe’ civilian casualties might result
from flooding or release of radiation. The negotiating history throws little light on what level of civilian losses
would be ‘severe.’ It is clear, however, that under this article, civilian losses are not to be balanced against the
military value of the target. If severe losses would result, then the attack is forbidden, no matter how important thetarget. It also appears that article 56 forbids any attack that raises the possibility of severe civilian losses, eventhough considerable care is taken to avoid them.”).
424

See, e.g., United Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 78 (“Re. Articles 56
and 85, paragraph 3 (c) The United Kingdom cannot undertake to grant absolute protection to installations which
may contribute to the opposing Party’s war effort, or to the defenders of such installations, but will take all due
precautions in military operations at or near the installations referred to in paragraph 1 of Article 56 in the light of
the known facts, including any special marking which the installation may carry, to avoid severe collateral losses
among civilian populations; direct attacks on such installations will be launched only on authorization at a high levelof command.”); France, Statement on Ratification of AP I, translated in SCHINDLER & TOMAN, THE LAWS OF
ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 801 (2004) (“TheGovernment of the French Republic cannot guarantee an absolute protection to the works and installations
containing dangerous forces which may contribute to the opposing Party’s war effort, or to the defenders of such
installations, but will take all precautions referred to the provisions of Article 56, of Article 57, paragraph 2(a)(iii)and of paragraph 3(c) of Article 85 in order to avoid severe collateral losses among the civilian populations,
including possible direct attacks.”).
425

Consider AP I art. 58 (“The Parties to the conflict shall, to the maximum extent feasible: (a) Without prejudice
to Article 49 of the Fourth Convention, endeavour to remove the civilian population, individual civilians and civilian
objects under their control from the vicinity of military objectives; (b) Avoid locating military objectives within ornear densely populated areas; (c) Take the other necessary precautions to protect the civilian population, individual
civilians and civilian objects under their control against the dangers resulting from military operations.”).

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military commanders and other officials responsible for the safety of the civilian population musttake reasonable steps to separate the civilian population from military objectives and to protect
the civilian population from the effects of combat. As discussed in § 5.2.3.2 (What Precautions
Are Feasible), what precautions are feasible depends greatly on the context. 426 Feasible
precautions by the party subject to attack may include the following:
5.14.1 Refraining From Placing Military Objectives in Densely Populated Areas. It may
be appropriate to avoid placing military objectives, such as the armed forces, in urban or otherdensely populated areas, in order to reduce the risk of incidental harm to the civilian
population. 427
However, it often may not be feasible to refrain from placing military objectives indensely populated areas. Legitimate military reasons often require locating or billeting militaryforces in urban areas or other areas where civilians are present. For example, forces may behoused in populated areas to take advantage of existing facilities, such as facilities for shelter,
health and sanitation, communications, or power. In some cases, especially during counterinsurgency operations or in non-international armed conflict generally, the protection of thecivilian population may be increased by placing military forces in densely populated areas toprotect the civilian population from enemy attack and influence. 428
5.14.2 Removing Civilians and Civilian Objects From the Vicinity of Military
Objectives. It may be appropriate to remove civilians and civilian objects from the vicinity of
military objectives. 429 In particular, civilian hospitals should be situated as far as possible frommilitary objectives. 430
The evacuation of civilians from areas likely to be attacked is advisable when there isimmediate danger and where it would be likely to involve less hardship and danger to civilians
than leaving them in place. 431
Voluntary removal of civilians may be accomplished through the use of warnings. 432
When removing civilians from the vicinity of military objectives, it may be appropriate toestablish safety, hospital, or neutralized zones so that civilians have safe places to move
426

Refer to § 5.2.3.2 (What Precautions Are Feasible).

427

Consider AP I art. 58 (“The Parties to the conflict shall, to the maximum extent feasible: … (b) Avoid locating
military objectives within or near densely populated areas;”).
428

Refer to § 17.5.2.1 (Positioning Military Forces Near the Civilian Population to Win Their Support and to ProtectThem).
429

Consider AP I art. 58 (“The Parties to the conflict shall, to the maximum extent feasible: (a) Without prejudice
to Article 49 of the Fourth Convention, endeavour to remove the civilian population, individual civilians and civilian
objects under their control from the vicinity of military objectives;”).
430

Refer to § 7.17.3 (Location of Civilian Hospitals).

431

2004 UK MANUAL ¶5.36.1 (“The evacuation of civilians from areas likely to be attacked is advisable when thereis immediate danger and where it would be likely to involve less hardship and danger to civilians than leaving themin place.”).
432

Refer to § 5.11.5 (Effective Advance Warning Before an Attack That May Affect the Civilian Population).

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toward. 433
It also may be appropriate to conclude local agreements for the removal of civilians frombesieged or encircled areas. 434
During international armed conflict, the forcible transfer or deportation of protected
persons from occupied territory is prohibited. 435
5.14.3 Establishing Areas Where Civilians or the Wounded and Sick Are Protected.
Certain zones or localities may be established through the agreement of parties to a conflict toshelter civilians or wounded and sick combatants from the effects of attacks. 436
In this context, “locality” means a specific place of limited area, generally containing
buildings, while “zone” means a relatively large area of land and may include one or more
localities. 437
5.14.3.1 Civilian Hospital and Safety Zones and Localities. During internationalarmed conflict, States may establish hospital and safety zones and localities to protect certain
persons from the effects of war, namely, wounded, sick, and aged persons, children under fifteen,
expectant mothers, and mothers of children under seven. 438 Parties to a conflict may conclude
agreements on the mutual recognition of the hospital zones and localities they have created,drawing upon model agreements that are annexed to the 1949 Geneva Conventions. 439 The
establishment of a zone only binds an adverse party when it agrees to recognize the zone. 440
433

Refer to § 5.14.3 (Establishing Areas Where Civilians or the Wounded and Sick Are Protected).

434

Refer to § 5.19.2 (Removal and Passage of Certain Personnel – Vulnerable Civilians, Diplomatic and Consular
Personnel, the Wounded and Sick, and Medical Personnel).
435

Refer to § 11.12.3 (Prohibition Against Forcible Transfers and Deportations).

436

For example, SYLVIE-STOYANKA JUNOD, INTERNATIONAL COMMITTEE OF THE RED CROSS, PROTECTION OF THE
VICTIMS OF ARMED CONFLICT FALKLAND-MALVINAS ISLANDS: INTERNATIONAL HUMANITARIAN LAW AND
HUMANITARIAN ACTION (1982) 26 (1984) (“At Britain’s suggestion, and without any special agreement in writing,the Parties to the conflict established a neutral zone at sea. This zone, called the Red Cross Box, with a diameter ofapproximately twenty nautical miles, was located on the high seas to the north of the islands. Without hampering
military operations, it enabled hospital ships to hold position, in particular the UGANDA, and exchange British andArgentine wounded.”).
437

GC COMMENTARY 120-21 (“Locality should be taken to mean a specific place of limited area, generally
containing buildings. The term zone is used to describe a relatively large area of land and may include one or more
localities.”).
438

GC art. 14 (“In time of peace, the High Contracting Parties and, after the outbreak of hostilities, the Parties
thereto, may establish in their own territory and, if the need arises, in occupied areas, hospital and safety zones andlocalities so organized as to protect from the effects of war, wounded, sick and aged persons, children under fifteen,
expectant mothers and mothers of children under seven.”).
439

GC art. 14 (“Upon the outbreak and during the course of hostilities, the Parties concerned may conclude
agreements on mutual recognition of the zones and localities they have created. They may for this purpose
implement the provisions of the Draft Agreement annexed to the present Convention, with such amendments as they
may consider necessary.”).
440

GC COMMENTARY 127 (“The zones will not, strictly speaking, have any legal existence, or enjoy protection
under the Convention, until such time as they have been recognized by the adverse Party. This will entail the273

These zones and localities may be combined with hospital zones established for the wounded andsick of the armed forces. 441
Protecting Powers and the ICRC may seek to facilitate the institution and recognition ofcivilian hospital and safety zones and localities. 442
5.14.3.2 Military Hospital Zones and Localities. States may establish in theirown territory, and if the need arises, in occupied areas, hospital zones and localities so organized
as to protect the wounded and sick (as defined in the GWS 443) from the effects of war, as well as
the personnel entrusted with the organization and administration of these zones and localities andwith the care of the persons assembled within them. 444
5.14.3.3 Neutralized Zones. It may be appropriate to conclude agreements with
opposing forces to establish neutralized zones in regions where fighting is taking place. 445
Neutralized zones differ from civilian hospital and safety zones in that they are intended toprotect a broader group of persons and in that they are generally established on a temporary basis
in regions where fighting is taking place. 446
conclusion of an agreement between the Power which has established zones in its territory and the Powers withwhich it is at war. It is only an agreement of this kind, concluded, as a general rule, after the outbreak of hostilities,
which gives legal form to the obligation on States which have accorded recognition to zones to respect those zones.
An agreement recognizing the zones is thus a sine qua non of their legal existence from the international point ofview. It should contain all the provisions, particularly in regard to control procedure, required to prevent disputes
arising later in regard to its interpretation.”).
441

GC COMMENTARY 125 (“As has already been pointed out, the provisions relating to hospital and safety zones in
the First and Fourth Geneva Conventions are sufficiently flexible to make various combinations possible. There is,for instance, no reason why a hospital zone should not combine the two types and provide shelter for both soldiersand civilians in need of treatment, since once a soldier is wounded or sick, he may be said to be no longer a
combatant on either side, but simply a suffering, inoffensive human being.”).
442

GC art. 14 (“The Protecting Powers and the International Committee of the Red Cross are invited to lend their
good offices in order to facilitate the institution and recognition of these hospital and safety zones and localities.”).
443

Refer to § 7.3.2 (Persons Entitled to Protection as Wounded, Sick, or Shipwrecked Under the GWS and GWSSea).
444

GWS art. 23 (“In time of peace, the High Contracting Parties and, after the outbreak of hostilities, the Parties
thereto, may establish in their own territory and, if the need arises, in occupied areas, hospital zones and localities soorganized as to protect the wounded and sick from the effects of war, as well as the personnel entrusted with theorganization and administration of these zones and localities and with the care of the persons therein assembled.”).
445

For example, 2004 UK MANUAL ¶5.40.1 footnote 258 (“During the Falklands conflict of 1982, a neutralized zone
was set up in the centre of Port Stanley, comprising the cathedral and a clearly defined area around it. This wasdone at the suggestion of the ICRC representative and with the consent of the Argentine and British authorities.”);SPAIGHT, AIR POWER AND WAR RIGHTS 256 (“With the consent of both the Chinese and Japanese military
authorities a district known as Nantao, lying between the French concession and a densely populated part of the old
Chinese city, was selected and cleared of all troops, munition factories and other military establishments, and its
boundaries were marked by flags. … ‘The outstanding success of this scheme at Shanghai … led very quickly to theadoption of similar arrangements at Hankow and other great Chinese cities that were liable to bombardment, and it
may be accepted that the lives of tens, if not of hundreds, of thousands of hapless Chinese have thus been saved.’”).

446

GC COMMENTARY 129 (“[N]eutralized zones differ from hospital and safety zones in that they are established in
the actual regions where fighting is taking place and are intended to give shelter to both civilian and military
wounded and sick, as well as all civilian persons who take no part in hostilities. Furthermore, they are generally set

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These neutralized zones are to shelter: (a) wounded and sick combatants or
noncombatants; and (b) civilian persons who take no part in hostilities, and who, while they
reside in the zones, perform no work of a military character. 447
Agreements should be made in writing, signed by representatives of the parties to theconflict, and should establish: (a) the location of the zone; (b) the administration of the zone; (c)the food supply of the zone; (d) the supervision of the zone; and (e) the beginning and durationof the neutralization of the zone. 448
5.14.4 Using Distinctive and Visible Signs to Identify Protected Persons and Objects as
Such. It may be appropriate to identify protected persons and objects, as such, through the use of
distinctive and visible signs. For example, it may be appropriate to identify civilian hospitals 449
or civilian air raid shelters in order to facilitate their protection during enemy bombardment. 450
Signs indicating civilian objects, as such, should be notified to the opposing party so that the
opposing party knows to refrain from bombarding places or buildings bearing these signs.
Where enemy forces seek to make peaceful civilians the object of attack, then it would
not be appropriate to distinguish civilian objects. Such precautions would not be feasible
because they would not be expected to yield a humanitarian benefit. 451
5.14.5 Carrying Arms Openly and Wearing of Distinctive Emblems by the Armed Forces
to Distinguish Themselves From the Civilian Population. Although the practices of carryingarms openly and wearing uniforms and distinctive emblems by armed forces predates
up on a temporary basis to meet the tactical situation at a particular moment, whereas hospital and safety zones tend
to be more permanent in character.”).
447

GC art. 15 (“Any Party to the conflict may, either direct or through a neutral State or some humanitarianorganization, propose to the adverse Party to establish, in the regions where fighting is taking place, neutralizedzones intended to shelter from the effects of war the following persons, without distinction: (a) wounded and sickcombatants or non-combatants; (b) civilian persons who take no part in hostilities, and who, while they reside in thezones, perform no work of a military character.”).
448

GC art. 15 (“When the Parties concerned have agreed upon the geographical position, administration, foodsupply and supervision of the proposed neutralized zone, a written agreement shall be concluded and signed by the
representatives of the Parties to the conflict. The agreement shall fix the beginning and the duration of theneutralization of the zone.”).
449

Refer to § 7.17.2.2 (Markings of Civilian Hospitals With the Distinctive Emblem).

450

See, e.g., HAGUE IV REG. art. 27 (“In sieges and bombardments all necessary steps must be taken to spare, as far
as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, andplaces where the sick and wounded are collected, provided they are not being used at the time for military purposes.
It is the duty of the besieged to indicate the presence of such buildings or places by distinctive and visible signs,
which shall be notified to the enemy beforehand.”); HAGUE IX art. 5 (“In bombardments by naval forces all thenecessary measures must be taken by the commander to spare as far as possible sacred edifices, buildings used for
artistic, scientific, or charitable purposes, historic monuments, hospitals, and places where the sick or wounded arecollected, on the understanding that they are not used at the same time for military purposes. It is the duty of the
inhabitants to indicate such monuments, edifices, or places by visible signs, which shall consist of large stiff
rectangular panels divided diagonally into two coloured triangular portions, the upper portion black, the lower
portion white.”).
451

Refer to § 5.2.3.2 (What Precautions Are Feasible).

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contemporary doctrines of feasible precautions, these practices may be viewed as feasible
precautions that help protect the civilian population from being erroneously made the object of
attack. 452
This requirement of armed forces to wear distinctive emblems has been understood as arequirement for the armed forces as a group. 453 However, it applies, to some extent, on an
individual basis in the context of liability for spying or sabotage. 454 The obligation of armed
forces to distinguish themselves includes, but is not limited to, those times when they conductattacks. 455 However, the requirement to wear distinctive emblems is not an absolute one, evenduring combat. 456
5.15 UNDEFENDED CITIES, TOWNS, AND VILLAGES
Attack, by whatever means, of a village, town, or city that is undefended is prohibited. 457
Undefended villages, towns, or cities may, however, be captured.
5.15.1 “Undefended” – Notes on Terminology. The term undefended city (or town orvillage, or any other populated area) is a term of art in the law of war and should not be confusedwith a place that simply lacks defensive capabilities. Historically, open or undefended status fora town, village, or city would be sought as opposing military forces approached and the militaryforces previously controlling the city abandoned it. 458 Undefended or open status would
essentially surrender the city to the opposing force; this minimized injury to the inhabitants anddamage to civilian objects within the city because the city could be occupied without resistanceor bypassed. 459
452

Refer to § 4.6.4 (Having a Fixed Distinctive Sign Recognizable at a Distance); § 4.6.5 (Carrying Arms Openly).

453

Refer to § 4.6.1.1 (GPW 4A(2) Conditions Required on a Group Basis).

454

Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).

455

Refer to § 5.4.8 (Obligation of Combatants to Distinguish Themselves When Conducting Attacks).

456

Refer to § 5.4.8.1 (Fighting Out of Uniform).

457

See HAGUE IV REG. art. 25 (“The attack or bombardment, by whatever means, of towns, villages, dwellings, orbuildings which are undefended is prohibited.”); HAGUE IX art. 1 (“The bombardment by naval forces of
undefended ports, towns, villages, dwellings, or buildings is forbidden.”). Consider AP I art. 59(1) (“It is prohibitedfor the Parties to the conflict to attack, by any means whatsoever, non-defended localities.”).
458

For example, H. Wayne Elliot, Open Cities and (Un)defended Places, THE ARMY LAWYER 39, 41 (Apr. 1995)(“When the military forces had abandoned the city, the city’s civic leaders normally had the burden of meeting withthe opposing commander and informing him that the city was open. Accordingly, the mayor of Columbia, South
Carolina, went to the Union lines as General Sherman approached the city and informed him that the Confederate
forces had left and that the city was open for the Union army’s entry. When the Confederate government was forced
to abandon Richmond, Virginia, the mayor met the advancing Union forces and informed General Grant’scommanders that the city was open. Once the capturing forces entered the city, they were obligated to refrain fromlooting and pillaging and were responsible for the safety of the city’s residents. Nonetheless, war materials still in
the city could be destroyed.”).
459

H. Wayne Elliot, Open Cities and (Un)defended Places, THE ARMY LAWYER 39, 41 (Apr. 1995) (“Surrenderusually meant the complete submission of the military forces defending an area to the enemy. However, when the
opposing military forces simply abandoned the city, the city was considered to be undefended and ‘open.’ That is,
the attacking force could enter the city at will and without fear of attack. Under these circumstances destroying the276

5.15.1.1 Non-defended Versus Undefended. Article 59 of AP I uses the term
“non-defended” rather than “undefended,” but uses essentially the same criteria as FM 27-10’s
discussion of “undefended” places within the meaning of Article 25 of the Hague IV
Regulations. The change from “undefended” in the Hague IV Regulations and Hague IX, to“non-defended” in AP I, appears to reflect a difference in translation from French to English
rather than a substantive difference.
The original text of the Hague IV Regulations and Hague IX is French. 460 In the French
versions of the text, both the Hague IV Regulations and Hague IX use a dependent clause “thatare not defended” in order to modify the list of places. 461 Rather than a dependent clause, AP I
uses an adjective -- “non-defended” modifying the word “localities.” 462 The difference inEnglish terms seems to reflect this underlying change in the French phrasing.
Moreover, the title of the chapter in Hague IX—“Du bombardement des ports, villes,
villages, habitations ou bâtiments non défendus” (emphasis added)—uses the same Frenchphrase as is used in AP I, yet the last two words of the title of the chapter in Hague IX havetypically been translated as “undefended” rather than “non-defended.”Thus, the consistency in terminology across the French texts suggests that even though
the English terminology has varied slightly, no substantive change has been intended.
5.15.1.2 Open Versus Undefended. If “undefended” is simply understood in afactual sense to mean a lack of defenses and “open” is simply understood in a factual sense tomean “open” for entry by the enemy, then distinctions could be drawn between “open” cities and“undefended” cities, because not all cities lacking defenses would be open for entry by enemy
forces. For example, a city that did not itself have defenses, but was located deep behind theState’s defensive lines would not be “open” for entry by enemy forces.
Most sources, however, use “open” and “undefended” interchangeably. 463 It appears thatthese terms tend to be used interchangeably because both terms generally refer to a specific legal

entire city was unnecessary, although individual military targets in the city might be destroyed, either before or after
entry.”).
460

William H. Taft, Proclamation Regarding the Hague IX, Feb. 28, 1910, 36 STAT. 2351 (“Whereas a Convention
concerning bombardment by naval forces in time of war was concluded … the original of which Convention, being
in the French language, is word for word as follows:”); William H. Taft, Proclamation Regarding the Hague IV,
Feb. 28, 1910, 36 STAT. 2277 (“Whereas a Convention respecting the laws and customs of war on land wasconcluded … the original of which Convention, being in the French language, is word for word as follows:”).
461

See HAGUE IV REG. art. 25 (“Il est interdit d’attaquer ou de bombarder, par quelque moyen que ce soit, des villes,
villages, habitations, ou bâtiments qui ne sont pas défendus.”) (emphasis added); HAGUE IX art. 1 (“Il est interdit debombarder, par des forces navales, des ports, villes, villages, habitations ou bâtiments, qui ne sont pas défendus.”)(emphasis added).
462

See AP I art. 59, 1125 UNTS 299 (“Il est interdit aux Parties au conflit d’attaquer, par quelque moyen que ce soit,
des localités non défendues.”) (emphasis added).
463

See, e.g., 1958 UK MANUAL ¶290 (“An undefended or ‘open’ town is a town which is so completely undefended
from within or without that the enemy may enter and take possession of it without fighting or incurring casualties.”).

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category of populated areas that are protected by the law of war from attack. 464
5.15.2 “By Whatever Means”. The phrase “by whatever means” was inserted in theHague IV Regulations to clarify that bombing attacks by air were included in the rule. 465
5.15.3 Declaration of a City as “Undefended”. An undefended city may be establishedthrough negotiations with opposing forces, 466 or unilaterally by the party to the conflict incontrol of it. If the latter, the intent and actions of that party should be communicated to
opposing military forces through a declaration. A town, village, or city may be declared“undefended” when it is near, or in, a zone where opposing armed forces are in contact with one
another and it is open for immediate physical occupation by an adverse party without
resistance. 467
5.15.3.1 Open for Immediate Physical Occupation. The area in question must be
open for immediate physical occupation by opposing military ground forces. 468 Thus, a city inrear areas behind enemy lines cannot be “undefended.” For example, a party to a conflict cannot
declare a city or other population center to be undefended if it is several hundred miles behind
the area of ground conflict where it would not be feasible for opposing ground forces to occupy
it. By way of comparison, it would not be effective for a person to seek to surrender to an
opposing force’s aircraft that could not physically take custody of that person. 469
5.15.3.2 Necessity for a Declaration of Undefended Status. Although there is no
explicit treaty requirement that a city be declared undefended before achieving that status, thepractice has been to make such declarations to the opposing party. Without them, a belligerent
464

See R.Y. Jennings, Open Towns, 22 BYIL 258, 260-61 (1945) (“There can be little doubt that the land warfare
rules exempted the ‘open and undefended’ town from bombardment because, being undefended, it was, under theconditions of contemporary warfare, open for the enemy to enter and take possession of, or destroy, its military
resources. This quality of being open to entry by the enemy is the essence of the rule. … It is impossible toconceive of a truly undefended town which is not also open in every sense of the word.”).

465

See JAMES BROWN SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: I THE CONFERENCE OF 1907
104 (1920) (“The Russian and Italian proposals had the same design, and were calculated to supplement Article 25of the 1899 Regulations with a provision securing to undefended towns, villages, dwellings or buildings absolute
immunity from all attack or bombardment, ‘even by aid of balloons or other new methods of a similar nature.’ …
The delegation of France then observed that the prohibition contemplated by the new Russian text, while entirely
conforming to its opinion as previously expressed, is already contained in the text now in force in Article 25, andthat consequently it is sufficient, if deemed necessary to avoid misunderstanding by rendering its terms precise, toinsert the words ‘by any means whatever’ after ‘to attack or bombard.’”).
466

Refer to § 5.15.5 (Agreements to Establish Undefended Cities).

467

1956 FM 27-10 (Change No. 1 1976) ¶39b (“An undefended place, within the meaning of Article 25, HR, is any
inhabited place near or in a zone where opposing armed forces are in contact which is open for occupation by anadverse party without resistance.”). Consider AP art. 59(2) (“The appropriate authorities of a Party to the conflictmay declare as a non-defended locality any inhabited place near or in a zone where armed forces are in contact
which is open for occupation by an adverse Party.”).
468

BOTHE, PARTSCH, & SOLF, NEW RULES 382 (AP I art. 59, ¶2.5.1) (“The concept intended is that it is sufficiently
close to the adverse Party’s forces that tactical movement to occupy it is a feasible course of action by the advancing
force.”).

469

Refer to § 5.9.3.3 (Under Circumstances in Which It Is Feasible to Accept).

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would have no way of knowing whether a city was truly open for occupation without resistance.
For example, a city may not satisfy the conditions described below for undefended status, or it
may contain defenses that are concealed or that are operated from other areas. 470
5.15.3.3 Refusal to Recognize a Declaration. Belligerents may refuse torecognize a declaration that a city is undefended if they assess that it does not satisfy all of thenecessary conditions, although they should notify the opposing belligerent of that decision. 471
Absent or until recognition, military objectives in a city unilaterally designated as undefended
remain subject to attack. 472
5.15.3.4 Authority to Make a Declaration or to Recognize a Declaration.
Declaration of a city being open or recognition of an opposing party’s declaration may only be
accomplished by those with authority to enforce the corresponding obligations, which may be theimmediate military commander, theater commander, or national command authorities. 473 Theseobligations may extend more broadly than control over the city itself as, for example, when thecity’s defenses are operated from a different location.
5.15.4 Conditions Necessary for a Place to Maintain Undefended Status. Once a party toa conflict has validly declared a city to be undefended, the city must also satisfy certain
conditions. If the city fails to satisfy these conditions, it would not be entitled to undefended
status, or, if previously granted, it would lose that status. 474 Persons and objects within that city,
470

R.Y. Jennings, Open Towns, 22 BYIL 258, 261 (1945) (“But it is ludicrous to suppose that a town shielded by anarmy holding a line in front of it is undefended. Moreover, even the defences peculiarly appropriate to aerial
warfare are no longer purely or even mainly local defences. Defending fighter planes may be based miles from thetown. A screen of anti-aircraft guns sited on the route to the town, even though many miles away from it, may be amore effective defence than anti-aircraft guns sited in or around the town itself.”).
471

Consider AP I art. 59(4) (“The Party to the conflict to which the declaration is addressed shall ackowledge [sic]its receipt and shall treat the locality as a non-defended locality unless the conditions laid down in paragraph 2 are
not in fact fullfilled, in which event it shall immediately so inform the Party making the declaration.”).
472

Cf. Sansolini and Others v. Bentivegna and Others, Italian Court of Cassation, Jul. 19, 1957 (“The declarationthat Rome was an open city was made by the Italian Government before the armistice, viz., on July 31, 1943. It wasmade to the British and the Americans but never accepted by them. It follows from this lack of acceptance that thedeclaration could not create any legal obligation for the Italian Government vis-à-vis the British and the Americans.
… We must therefore reject the contention that there was any violation of an undertaking to respect Rome as anopen city because there were not agreements to this effect … .”); BOTHE, PARTSCH, & SOLF, NEW RULES 383 (AP I
art. 59, ¶2.5.2) (“Drawing on the World War II experience, the Canadian delegation pointed out that the decision not
to defend Paris and Rome had been made while defending forces still had possession of these urban centres.
Accordingly, the Canadian delegation proposed that a mechanism be developed under which the defending Party
would declare that it did not intend to defend the locality and to initiate negotiations for permitting an orderly
withdrawal. The locality was not to be attacked while such negotiation was taking place. Other delegations pointed
out that the Canadian proposal would amount to a unilateral cease fire enabling the defending force to extricate itself
from a precarious situation. This matter was left for mutual agreement between the Parties under para. 5.”).

473

For example, R.Y. Jennings, Open Towns, 22 BYIL 258, 263 (1945) (“The declaration of Rome as an open cityby the Italian Government in August 1943 was little more than a public request to the Allies to state the conditions
under which they would discontinue their bombing attacks on the city. The Allies were unable to comply with therequest for the very good reason that however anxious the Italian Government might have been to comply with any
conditions, they were in fact powerless to prevent the German Army from using the city as a military centre.”).
474

Consider AP I art. 59(7) (“A locality loses its status as a non-defended locality when it ceases to fulfil theconditions laid down in paragraph 2 or in the agreement referred to in paragraph 5.”).

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however, may still receive other protections for civilians and civilian objects. 475
5.15.4.1 Combatants and Mobile Military Equipment Have Been Evacuated. All
combatants, as well as their mobile weapons and mobile military equipment, must have been
evacuated. 476 However, the presence of military medical personnel, the wounded and sick, andcivilian police forces for the purpose of maintaining local law and order would not cause a city
designated as undefended to lose that status. 477
5.15.4.2 No Hostile Use of Fixed Military Facilities. No hostile use shall be madeof fixed military installations or establishments within the city. 478
5.15.4.3 No Hostile Acts Against the Occupying Force. Hostile acts may not becommitted by the local civilian authorities or the civilian population against the occupying
military force. 479
5.15.4.4 No Activities in Support of Military Operations. No activities in supportof military operations may be undertaken. 480 For example, factories in the city should not be
used to manufacture munitions, and ports or railroads should not be used to transport military
supplies. 481

475

Consider AP I art. 59(7) (“In such an eventuality, the locality shall continue to enjoy the protection provided by
the other provisions of this Protocol and the other rules of international law applicable in armed conflict.”).
476

See 1956 FM 27-10 (Change No. 1 1976) ¶39b (“In order to be considered as undefended, the following
conditions should be fulfilled: (1) Armed forces and all other combatants, as well as mobile weapons and mobile
military equipment, must have been evacuated, or otherwise neutralized;”). Consider AP I art. 59(2) (requiring thatin a non-defended locality “(a) All combatants, as well as mobile weapons and mobile military equipment, musthave been evacuated;”).
477

1956 FM 27-10 (Change No. 1 1976) ¶39b (“The presence, in the place, of medical units, wounded and sick, andpolice forces retained for the sole purpose of maintaining law and order does not change the character of such an
undefended place.”). Consider AP I art. 59(3) (“The presence, in this locality, of persons specially protected under
the Conventions and this Protocol, and of police forces retained for the sole purpose of maintaining law and order, is
not contrary to the conditions laid down in paragraph 2.”). Compare § 4.23.1 (Police as Civilians).
478

See 1956 FM 27-10 (Change No. 1 1976) ¶39b (“In order to be considered as undefended, the following
conditions should be fulfilled: … (2) no hostile use shall be made of fixed military installations or establishments;”).
Consider AP I art. 59(2) (requiring that in a non-defended locality “(b) No hostile use shall be made of fixed
military installations or establishments;”).
479

See 1956 FM 27-10 (Change No. 1 1976) ¶39b (“In order to be considered as undefended, the following
conditions should be fulfilled: … (3) no acts of warfare shall be committed by the authorities or by the
population;”). Consider AP I art. 59(2) (requiring that in a non-defended locality “(c) No acts of hostility shall becommitted by the authorities or by the population;”).
480

See 1956 FM 27-10 (Change No. 1 1976) ¶39b (“In order to be considered as undefended, the following
conditions should be fulfilled: … (4) no activities in support of military operations shall be undertaken.”). Consider
AP I art. 59(2) (requiring that in a non-defended locality “(d) No activities in support of military operations shall be
undertaken.”).
481

For example, F.D. ROOSEVELT & S. ROSENMAN, THE PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D.
ROOSEVELT: 1943 VOLUME 309 (1950) (“The Nine Hundred and Tenth Press Conference (Excerpts) July 23, 1943
(Rome as a military center - Bombing of Rome) Q. Mr. President, is there any comment you can make, sir, uponestablishing Rome as an open city? THE PRESIDENT: I think the easiest thing is to tell you in general what has

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5.15.5 Agreements to Establish Undefended Cities. Even if the conditions describedabove are not met, parties to a conflict may agree between themselves to treat an area as an
undefended city. 482 The agreement should be in writing and should define and describe, asprecisely as possible, the limits of the undefended city (such as the exact geographic limits of thelocality, when the location is to begin to receive protection as undefended, and the duration of
undefended status). If necessary, methods of supervision to ensure that the city continues tofulfill the conditions should be specified. 483 It may also be appropriate for agreements tospecify: (1) rules on marking the city and agreed signs; 484 (2) persons authorized to enter thecity; and (3) whether and under what conditions the city may be occupied by enemy forces.
5.15.6 Actions of the Occupying Force. The occupying force may use the city, town, or
village for military operations, including by establishing defenses to prevent its recapture by theenemy. 485 In such cases, the city would lose its undefended status, and, for example, military
objectives within the city may be attacked. 486
However, if the occupying force acts in a manner consistent with the conditions
necessary for the inhabited place to maintain undefended status, 487 the place would remain
undefended for the purpose of protecting it against military operations by all parties to theconflict.

been happening for over a year. We have been very anxious to have Rome declared an open city. However, theFascists would not do it; and on the contrary, it has become—probably was then—a very important military center.
That means they were making munitions, and using airports very close to Rome-actually in Rome, and the use of
Rome because it’s a railroad center for transportation of troops, guns, and ammunition down to the south of Rome.
And we used every argument, and pleaded that it be made an open city. But it didn’t work. We did our best. And
we still hope that the Germans and the Fascists will make it an open city.”).
482

Consider AP I art. 59(5) (“The Parties to the conflict may agree on the establishment of non-defended localities
even if such localities do not fulfil the conditions laid down in paragraph 2.”).
483

Consider AP I art. 59(5) (“The agreement should define and describe, as precisely as possible, the limits of thenon-defended locality; if necessary, it may lay down the methods of supervision.”).
484

Consider AP I art. 59(6) (“The Party which is in control of a locality governed by such an agreement shall markit, so far as possible, by such signs as may be agreed upon with the other Party, which shall be displayed where they
are clearly visible, especially on its perimeter and limits and on highways.”).
485

BOTHE, PARTSCH, & SOLF, NEW RULES 382 (AP I art. 59, ¶2.4) (“Once in possession of a previously nondefended locality a Party is not bound to refrain from organizing its defense to maintain the security of the locality
against an attempt to recapture the locality.”).

486

See The Legal Adviser (Hackworth) to Secretary of State Hull, memorandum, Aug. 19, 1943, X WHITEMAN’SDIGEST 437 (“If our troops were in Rome [after the United States had recognized it as an open city] or passing
through Rome, they would be subject to bombardment by Germany and hence the city would be in the same position
as French cities, including Paris, were after they were occupied by German forces or were being used for military
purposes. It appears that in the last war French cities, such as Vouziers, Charleville, and Mézières, regarded as open
cities were bombarded by the French after they had been occupied by Germany. The sum and substance of theseexamples is that the status of a city may change from an undefended to a defended place as military operations
change, and that recognition by use of Rome as an open city would mean only that we could not bomb it while it
was so recognized, but that if we later used it ourselves, it would again become subject to bombardment.”).
487

Refer to § 5.15.4 (Conditions Necessary for a Place to Maintain Undefended Status).

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5.16 PROHIBITION ON USING PROTECTED PERSONS AND OBJECTS TO SHIELD, FAVOR, OR IMPEDEMILITARY OPERATIONSParties to a conflict may not use the presence or movement of protected persons 488 or
objects : (1) to attempt to make certain points or areas immune from seizure or attack; (2) toshield military objectives from attack; or (3) otherwise to shield or favor one’s own military
operations or to impede the adversary’s military operations.
489

5.16.1 Protected Persons and Objects. In particular, the civilian population, 490 protected
persons under the GC, 491 POWs, 492 fixed medical establishments and medical units,parlementaires and other persons protected by a flag of truce, 493 and cultural property areprotected persons and objects that may not be used for the above purposes.
Although persons and objects that are protected by the law of war may not be used inthese ways, this rule does not prohibit a party from using what would otherwise be a civilian
object for military purposes and thereby converting it to a military objective that is not protectedby the law of war. For example, a building that previously was a civilian object could be used
for military purposes (including as cover) and would not implicate this rule because it would nolonger be a protected object. Similarly, this rule does not prohibit persons who would otherwise
be civilians from participating in hostilities or otherwise assuming the risks inherent in

488

Cf. 10 U.S.C. § 950t (“(9) USING PROTECTED PERSONS AS A SHIELD.—Any person subject to this chapter who
positions, or otherwise takes advantage of, a protected person with the intent to shield a military objective fromattack. [sic] or to shield, favor, or impede military operations, shall be punished, if death results to one or more of
the victims, by death or such other punishment as a military commission under this chapter may direct, and, if deathdoes not result to any of the victims, by such punishment, other than death, as a military commission under thischapter may direct.”); 10 U.S.C. § 950p (a)(3) (“The term ‘protected person’ means any person entitled to protection
under one or more of the Geneva Conventions, including civilians not taking an active part in hostilities, military
personnel placed out of combat by sickness, wounds, or detention, and military medical or religious personnel.”).

489

Cf. 10 U.S.C. § 950t (“(10) USING PROTECTED PROPERTY AS A SHIELD.—Any person subject to this chapter who
positions, or otherwise takes advantage of the location of, protected property with the intent to shield a military
objective from attack, or to shield, favor, or impede military operations, shall be punished as a military commission
under this chapter may direct.”); 10 U.S.C. § 950p(a)(3) (“The term ‘protected property’ means any property
specifically protected by the law of war, including buildings dedicated to religion, education, art, science, or
charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, but only if
and to the extent such property is not being used for military purposes or is not otherwise a military objective. The
term includes objects properly identified by one of the distinctive emblems of the Geneva Conventions, but does notinclude civilian property that is a military objective.”).
490

Consider AP I 51(7) (“The presence or movements of the civilian population or individual civilians shall not be
used to render certain points or areas immune from military operations, in particular in attempts to shield military
objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct
the movement of the civilian population or individual civilians in order to attempt to shield military objectives fromattacks or to shield military operations.”).
491

GC art. 28 (“The presence of a protected person may not be used to render certain points or areas immune frommilitary operations.”).
492

Refer to § 9.5.2.3 (No Exposure to a Combat Zone or Use as a Human Shield).

493

Refer to § 12.4.2.1 (Prohibition on Improper Use of the Flag of Truce).

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supporting military operations. 494
5.16.2 Intent to Endanger Protected Persons or Objects to Deter Enemy Military
Operations. The essence of this rule is to refrain from deliberately endangering protected
persons or objects for the purpose of deterring enemy military operations. 495 This absolute duty
to refrain from purposeful misconduct may be contrasted with the affirmative obligation thatparties have to take feasible precautions to separate the civilian population, 496 civilianinternees, 497 POWs, 498 fixed medical establishments and medical units, 499 and culturalproperty, 500 from the dangers of military operations.
An adversary’s intention to violate this rule is likely to be clear because that adversary
normally would make it apparent to the opposing party that attacks against the military objective
being shielded would risk harming protected persons or objects. 501
On the other hand, in the absence of purposeful action to put protected persons andobjects at risk of harm from enemy military operations, there would be no violation of this rule.
For example, this rule would not prohibit restricting the movement of civilians in order to
conduct military operations without their interference. In addition, it would also not prohibit the494

Refer § 4.15.2.2 (Employment in Hostilities); § 4.18.5 (Private Persons Who Engage in Hostilities and the Law ofWar); § 5.12.3.3 (Civilian Workers Who Support Military Operations In or On Military Objectives).
495

BOTHE, PARTSCH, & SOLF, NEW RULES 316 (AP I art. 51, ¶2.8.2) (“The mandatory provisions of para. 7 areintended to prohibit any deliberate use of the physical presence or physical movement of civilians for the purpose ofshielding or favouring friendly military operations against enemy action or to impede enemy military operations. …
In practice this means that in some close cases the location of a military objective in the midst of a populated town
may violate para. 7 if the purpose of the location is to shield the military unit or facility from attack. On the other
hand, the same act could be innocent if it were militarily necessary to so situate the unit or facility. Thus the
subjective intent of military commander is the controlling element in determining whether there has been a breach ofpara. 7, a negligent failure to take the precautions urged by Art. 58, or a legitimate act of war.”).

496

Refer to § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party
Subject to Attack).
497

Refer to § 10.11.1.1 (Avoidance of Particularly Dangerous Areas).

498

Refer to § 9.11.3 (Location of POW Camps).

499

Refer to § 7.10.2 (Obligation to Situate Military Medical Units and Facilities Relative to Military Objectives).

500

Refer to § 5.18.3 (Refraining From Any Use for Purposes That Are Likely to Expose It to Destruction or
Damage).
501

For example, STUART I. ROCHESTER & FREDERICK KILEY, HONOR BOUND: THE HISTORY OF AMERICANPRISONERS OF WAR IN SOUTHEAST ASIA, 1961-1973 316-21 (1998) (“Between June and October 1967 the North
Vietnamese confined more than 30 U.S. PWs in the vicinity of the Yen Phu thermal power plant in northern Hanoi.
… Although the Communists would deny it, their conspicuous display and virtual announcement of the PWs’
presence at the power plant evidenced a transparent attempt to use the prisoners as hostages to discourage U.S.
bombing of the facility. … Through calculated disclosures to visiting journalists and diplomats, local placard
publicity, and exhibiting the captives in full view of civilians—all sharp departures from their normal practice—theVietnamese could be certain the PWs’ presence would be reported to the U.S. government. … The hostage charade
did not deter U.S. strikes on the target. The plant was attacked regularly after 13 August, with apparently nocasualties and conflicting reports on the extent of damage to the power facility and PW cellblocks.”).

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evacuation of civilians for their own security or for imperative military reasons. 502
In addition, this rule must not be understood to alter the rules on spying and sabotage. In
other words, this rule does not prohibit a spy from hiding among civilians in order to gather
intelligence. However, the spy runs the risk of prosecution by the enemy State if he or she is
discovered and captured while spying.
5.16.3 Prohibition on Taking Hostages. The taking of hostages is prohibited. 503 This
prohibition is understood to include a prohibition against threatening to harm detainees whose
lives are valued by the adversary in order to induce the adversary not to attack, but is also
understood to include the prohibition against using hostages as human shields. 504
The taking of hostages is also prohibited in non-international armed conflict. 505
5.16.4 Use of Human Shields by Defenders Does Not Relieve Attackers of Duties in
Conducting Attacks. Violations by the adversary of the prohibition on using protected persons
and objects to shield, favor, or impede military operations do not relieve those conducting attacks
from their obligation to seek to discriminate between lawful and unlawful objects of attack. 506
However, such violations by the adversary may impair the attacking force’s ability todiscriminate and increase the risk of harm to protected persons and objects. 507
502

Cf. BOTHE, PARTSCH, & SOLF, NEW RULES 317 (AP I art. 51, ¶2.8.3) (“Paragraph 7 [of Article 51 of AP I] does
not prohibit measures to restrict the movement of civilians so as to avoid their interference with military movement,
nor does it prohibit ordering their evacuation if their security or imperative military reasons so demand.”).
503

GC art. 34 (“The taking of hostages is prohibited.”). Cf. 18 U.S.C. § 2441(d)(1)(I) (defining “Taking hostages”
as “The act of a person who, having knowingly seized or detained one or more persons, threatens to kill, injure, or
continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, orgroup of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such
person or persons.”); 10 U.S.C. § 950t(7) (“TAKING HOSTAGES.—Any person subject to this chapter who, having
knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or
persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrainfrom acting as an explicit or implicit condition for the safety or release of such person or persons, shall be punished,
if death results to one or more of the victims, by death or such other punishment as a military commission under thischapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as amilitary commission under this chapter may direct.”).

504

GC COMMENTARY 230 (giving as examples of hostage taking: (1) “taking as hostages persons generally selectedfrom among prominent persons in a city or a district in order to prevent disorders or attacks on occupation troops”;(2) “arresting after an attack a certain number of inhabitants of the occupied territory and announcing that they will
be kept captive or executed if the guilty are not given up”; and (3) “the practice of taking so-called accompanying
hostages consists of placing inhabitants of occupied territory on board lorry convoys or trains in order to prevent
attacks by their compatriots”).
505

Refer to § 17.6.2 (Prohibition on the Taking of Hostages).

506

Refer to § 5.4.4 (Failure by the Defender to Separate or Distinguish Does Not Relieve the Attacker of the Duty to
Discriminate in Conducting Attacks).
507

FINAL REPORT ON THE PERSIAN GULF WAR 613 (“Another reason for collateral damage to civilian objects andinjury to civilians during Operation Desert Storm lay in the policy of the Government of Iraq, which purposely usedboth Iraqi and Kuwaiti civilian populations and civilian objects as shields for military objects. Contrary to theadmonishment against such conduct contained in Article 19, GWS, Articles 18 and 28, GC, Article 4(1), 1954
Hague, and certain principles of customary law codified in Protocol I (discussed below), the Government of Iraq284

Although human shields who are civilians are to be considered as civilians in determining
whether a planned attack would be excessive, enemy use of voluntary human shields may beconsidered as a factor in assessing the legality of an attack. 508 Feasible precautions must be
taken to reduce the risk of harm to human shields.
5.16.5 Responsibility for Harm to Human Shields. The party that employs human shields
in an attempt to shield military objectives from attack assumes responsibility for their injury,
although the attacker may share this responsibility if it fails to take feasible precautions. 509
5.17 SEIZURE AND DESTRUCTION OF ENEMY PROPERTY
Outside the context of attacks, certain rules apply to the seizure and destruction of enemy
property:•

Enemy property may not be seized or destroyed unless imperatively demanded by thenecessities of war;•

Public movable property and certain types of private movable property may customarily
be captured as war booty;•

Enemy private movable property that is not susceptible of direct military use may beappropriated only to the extent that such taking is permissible in occupied areas;•

Pillage is prohibited; and•Feasible precautions should be taken to mitigate the burden on civilians, but there is no
obligation to compensate the owners of enemy property that is lawfully damaged.

placed military assets (personnel, weapons, and equipment) in civilian populated areas and next to protected objects(mosques, medical facilities, and cultural sites) in an effort to protect them from attack. For this purpose, Iraqi
military helicopters were dispersed into residential areas; and military supplies were stored in mosques, schools, andhospitals in Iraq and Kuwait. Similarly, a cache of Iraqi Silkworm surface-to-surface missiles was found inside aschool in a populated area in Kuwait City. UN inspectors uncovered chemical bomb production equipment whileinspecting a sugar factory in Iraq. The equipment had been moved to the site to escape Coalition air strikes. Thisintentional mingling of military objects with civilian objects naturally placed the civilian population living nearby,
working within, or using those civilian objects at risk from legitimate military attacks on those military objects.”).
508

Refer to § 5.12.3.4 (Enemy Use of Human Shields).

509

U.S. Comments on the International Committee of the Red Cross’s Memorandum on the Applicability ofInternational Humanitarian Law in the Gulf Region, Jan. 11, 1991, DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 1991-1999 2057, 2063 (“In no case may a combatant force utilize individual civilians or thecivilian population to shield a military objective from attack. A nation that utilizes civilians to shield a target fromattack assumes responsibility for their injury, so long as an attacker exercises reasonable precaution in executing its
operations. Likewise, civilians working within or in the immediate vicinity of a legitimate military objective assume
a certain risk of injury.”); Instructor Training Course, ¶3g, Appendix C in DEPARTMENT OF THE ARMY SUBJECTSCHEDULE 27-1, The Geneva Conventions of 1949 and Hague Convention No. IV of 1907, 18 (Aug. 29, 1975) (“(4)
Question: Suppose we are receiving fire from the enemy, and they are using unarmed civilians as shields. May wefire back, knowing that we will be killing many of these unarmed civilians? Answer: Yes. We may fire since wehave the right to defend ourselves. The responsibility for innocent casualties falls upon those who would violate thelaw of war by using innocents as shields.”).

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During occupation, other rules relating to the treatment of enemy property apply. 510
5.17.1 Definition of Enemy Property. All property located in enemy territory is regarded
as enemy property regardless of its ownership. 511
5.17.2 Enemy Property – Military Necessity Standard. Enemy property may not be
seized or destroyed unless imperatively demanded by the necessities of war. 512 In particular,
devastation or destruction may not be pursued as an end in itself. 513 The measure of permissible
seizure or destruction of enemy property is found in the strict necessities of war. 514 There must
be some reasonable connection between the seizure or destruction of the enemy property and theovercoming of enemy forces. 515
Extensive destruction and appropriation of property protected by the GC, not justified bymilitary necessity and carried out unlawfully and wantonly, constitutes a grave breach of theGC. 516
5.17.2.1 Using the Military Objective Definition to Assess Whether the Seizure or
Destruction of Enemy Property Is Justified by Military Necessity. The definition of military
objective (that has been developed to assess whether objects may be made the object of attack)may be applied outside the context of attacks to assess whether an object’s seizure or destruction
is justified by imperative military necessity. 517 After all, if sufficient military necessity exists tojustify attacking an object as reflected by that object meeting the definition of military objective,then imperative military necessity would also exist to justify seizing or destroying that object bymeasures short of attack.
On the other hand, if imperative military necessity justifies the seizure or destruction ofan object, that object does not necessarily satisfy the definition of a military objective. Rather,
the object must be assessed as to whether it meets the definition of military objective and may be
510

Refer to § 11.18 (Enemy Property During Occupation).

511

See, e.g., Aris Gloves, Inc. v. United States, 420 F.2d 1386, 1391 (Ct. Cl. 1970) (collecting cases and describing“the general rule that all property located in enemy territory, regardless of its ownership, is in time of war regarded
as enemy property subject to the laws of war”).
512

HAGUE IV REG. art. 23(g) (“[I]t is especially forbidden: … (g.) To destroy or seize the enemy’s property, unlesssuch destruction or seizure be imperatively demanded by the necessities of war;”). For general discussion of
military necessity, refer to § 2.2 (Military Necessity).
513

1956 FM 27-10 (Change No. 1 1976) ¶56 (“Devastation as an end in itself or as a separate measure of war is not
sanctioned by the law of war.”); United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALSBEFORE THE NMT 1253 (“Destruction as an end in itself is a violation of international law.”). Refer to § 2.3.1(Humanity as a Prohibition).
514

1956 FM 27-10 (Change No. 1 1976) ¶56 (“The measure of permissible devastation is found in the strict
necessities of war.”).
515

United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1253-54(“There must be some reasonable connection between the destruction of property and the overcoming of the enemy
forces.”).
516

Refer to § 18.9.3.1 (Acts Constituting Grave Breaches).

517

Refer to § 5.6.5 (Definition of Military Objective for Objects: A Two-Part Test).

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made the object of attack.
5.17.2.2 Seizure or Destruction of Enemy Property to Support Military
Operations. It may be imperatively demanded by the necessities of war to seize or destroy
enemy property in order to support military operations. These examples are illustrative and not
exhaustive:•

using enemy land for the construction of military bases, air fields, and other facilities tosupport military operations; 518•

using enemy buildings to billet military personnel and others supporting them, to housethe wounded and sick, for observation and reconnaissance, for concealment and cover,and for defensive purposes; 519•

demolishing, cutting down, or removing enemy walls, forests, and buildings to clear afield of fire or to provide construction material; 520 or•

seizing means of transportation for use in military operations. 521

5.17.2.3 Destruction of Enemy Property to Diminish the Enemy’s Ability to
Conduct or Sustain Operations. It may be imperatively demanded by the necessities of war to
seize or destroy enemy property in order to diminish the enemy’s ability to conduct or sustain
operations, such as railways, lines of communication, and other war fighting and war sustaining
infrastructure. 522 For instance, Union forces destroyed the Confederacy’s cotton during the Civil

518

1956 FM 27-10 (Change No. 1 1976) ¶56 (“[R]eal estate may be used for marches, camp sites, construction offield fortifications, etc.”).
519

1956 FM 27-10 (Change No. 1 1976) ¶56 (“Buildings may be destroyed for sanitary purposes or used for shelter
for troops, the wounded and sick and vehicles and for reconnaissance, cover, and defense.”); LAUTERPACHT, II
OPPENHEIM’S INTERNATIONAL LAW 398 (§136) (“So far as the necessities of war demand, a belligerent may makeuse of public enemy buildings for all kinds of purposes. Troops must be housed, horses stabled, the sick andwounded looked after. Public buildings may in the first instance, therefore, be made use of for such purposes,
although they may thereby be considerably damaged.”); LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 403(§140) (“What has been said above with regard to utilisation of public buildings applies equally to privatebuildings.”).
520

1956 FM 27-10 (Change No. 1 1976) ¶56 (“Fences, woods, crops, buildings, etc., may be demolished, cut down,
and removed to clear a field of fire, to clear the ground for landing fields, or to furnish building materials or fuel ifimperatively needed for the army.”).
521

For example, Interview by Robert K. Wright, Jr., Department of the Army, with Col. Barry S. Baer, Commander,
18th Finance Group, in Fort Bragg, N.C. (Mar. 15, 1990), available at
http://www.history.army.mil/documents/panama/JCIT/JCIT31.htm (recounting how U.S. forces commandeered
rental cars in Panama to increase tactical mobility in Operation JUST CAUSE).
522

United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1254 (“It is
lawful to destroy railways, lines of communication, or any other property that might be utilized by the enemy.
Private homes and churches even may be destroyed if necessary for military operations.”); LIEBER CODE art. 15(“Military necessity … allows of all destruction of property, and obstruction of the ways and channels of traffic,
travel, or communication, and of all withholding of sustenance or means of life from the enemy.”). Compare§ 5.6.6.2 (Make an Effective Contribution to Military Action).

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War in order to deprive the Confederacy of the ability to fund its military operations. 523
Similarly, coalition forces during Operation ENDURING FREEDOM destroyed narcotics in order toweaken the Taliban and al Qaeda’s ability to finance their operations. 524
5.17.2.4 Incidental Damage to Enemy Property. Military necessity also justifies
damage to property incidental to combat operations that is reasonably related to overcoming
enemy forces. 525 For example, the movement of armed forces and equipment may damage roads
or fields. 526
5.17.3 Enemy Movable Property on the Battlefield (War Booty). Any enemy public
movable property on the battlefield may be seized. 527 Property is public if it belongs to theenemy State or an agency of that State. 528
523

In re Mrs. Alexander’s Cotton, 69 U.S. 404, 419-20, 421 (1864) (holding that 72 bales of cotton taken from abarn by Union naval forces could lawfully be captured as enemy property based on “the peculiar character of theproperty” as “one of [the rebels’] main sinews of war,” but that the cotton was not a maritime prize because it had
been captured on land).
524

International Security Assistance Force (ISAF) Joint Command – Afghanistan, Press Release: Combined Force
Finds, Destroys Drugs, Weapons Cache (Sept. 7, 2010) (describing a patrol’s destruction of a cache of opium andweapons in order to “significantly reduce[] the insurgent’s ability to … procure financial resources”); April
Campbell, Afghan Forces Becoming Increasingly Effective Against Drug Producers, AFGHANISTAN INTERNATIONALSECURITY ASSISTANCE FORCE – NEWS (Sept. 29, 2011) (describing Afghan counter-narcotics forces’ seizure anddestruction of narcotics laboratories and narcotics as “dealing a significant blow to the insurgency’s ability to fundoperations”).
525

See also GREENSPAN, MODERN LAW OF LAND WARFARE 282-83 (“While the seizure or destruction of enemy
personnel and war material are actual objectives of warfare, the operations of war must also result in the incidental
destruction and seizure of much property, not as the prime object of attack, but which becomes involved in the
struggle. … Troops march, ride, and fight wherever the battle takes them, whether over fields of growing crops orin the streets of cities, towns, or villages. Land is used for camp sites, entrenchments, and other defenses
constructed in or on it, streets may be torn up, bridges demolished, dwellings and factories converted into strong
points, furniture and bedding may provide the cover for a sharpshooter hidden in some dwelling. Practically every
shell or bomb that explodes damages property in one form or another, whether or not it attains its objective. Most
bullets that are fired strike, not humans, but property. Each missile that is launched must finally come to earth
somewhere.”).

526

See, e.g., 1956 FM 27-10 (Change No. 1 1976) ¶56 (explaining that “the rule requiring respect for private
property is not violated through damage resulting from operations, movements, or combat activity of the army”);
1958 UK MANUAL ¶589 (“The rule that private property must be respected admits, however, of exceptions
necessitated by the exigencies of war. In the first instance, practically every operation, movement or combat
occasions damage to private property.”); LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 414 (§151)(“Destruction of enemy property in marching troops, in conducting military transport, and in reconnoitring, is lawful
if unavoidable. A reconnoitring party need not keep on the road if they can better serve their purpose by riding
across tilled fields. Troops may be marched, and transport may be conducted, over crops when necessary. A
humane commander will not unnecessarily allow his troops and transport to march and ride over tilled fields andcrops. But if the purpose of war necessitates it, he is justified in so doing.”).
527

1956 FM 27-10 (Change No. 1 1976) ¶59a (“All enemy public movable property captured or found on abattlefield becomes the property of the capturing State.”); LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 402(§139) (“[Movable] public enemy property on the battlefield may be appropriated by belligerents.”).
528

See, e.g., William Gerald Downey, Jr., Captured Enemy Property: Booty of War and Seized Enemy Property, 44
AJIL 488, 489 (1950) (“Enemy public property is defined as chattels, the title to which is vested in a state or in any
agency of such state.”).

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In general, enemy private movable property on the battlefield may be seized if theproperty is susceptible to direct military use, i.e., it is necessary and indispensable for the
conduct of war. 529 This includes arms, ammunition, military papers, or property that can be usedas military equipment (e.g., as a means of transportation or communication). 530 However,certain types of military equipment used for clothing, feeding, or personal protection (e.g.,helmets and gas masks) may not be seized from POWs, and should remain in their possession. 531
5.17.3.1 Private Military Property Not Susceptible to Direct Military Use.
Private enemy property that is not susceptible to direct military use (e.g., arms, ammunition,
military papers, or military equipment) may be appropriated only to the extent such taking ispermissible in occupied areas. 532 In particular, receipts should be given and compensation paid,
when feasible. 533
5.17.3.2 Ownership of Captured or Found Property on the Battlefield. All enemy
property that is captured or found on the battlefield becomes the property of the capturing
State. 534 During international armed conflict, personal property recovered from enemy deadbecomes the property of the capturing State for the purpose of returning it to the next-of-kin of
the deceased. 535 The individual military member or person accompanying the armed forces who
captures or finds enemy property acquires no title or claim. 536

529

See Menzel v. List, 267 N.Y.S.2d 804, 820 (N.Y. Sup. Ct. 1966) (“Booty is defined as property necessary andindispensable for the conduct of war, such as food, means of transportation, and means of communication; and islawfully taken.”).
530

1958 UK MANUAL ¶615 (“Private enemy property on the battlefield is not (as it was in former times) in every
case booty. Arms and ammunition and military equipment and papers are booty, even if they are the property of
individuals, but cash, jewellery, and other private articles of value are not.”); GREENSPAN, MODERN LAW OF LANDWARFARE 281 (“Private property in the following categories belonging to members of the enemy forces falls within
the description of booty: arms, horses, military equipment, and military documents.”); LAUTERPACHT, II
OPPENHEIM’S INTERNATIONAL LAW 406 (§144) (“Private enemy property on the battlefield is no longer in every
case an object of booty. Arms, horses, and military papers may indeed be appropriated, even if they are private
property, as may also private means of transport, such as cars and other vehicles which an enemy may make useof.”).
531

Refer to § 9.7 (POW Effects and Articles of Personal Use).

532

See 1956 FM 27-10 (Change No. 1 1976) ¶59b (“Enemy private movable property, other than arms, military
papers, horses, and the like captured or found on a battlefield, may be appropriated only to the extent that suchtaking is permissible in occupied areas.”). Refer to § 11.18.6 (Treatment of Enemy Private Property).
533

Refer to § 11.18.6.2 (Seizure of Private Property Susceptible to Direct Military Use).

534

1956 FM 27-10 (Change No. 1 1976) ¶59a-b (providing that “[a]ll enemy public movable property captured orfound on a battlefield becomes the property of the capturing State” and that “[e]nemy private movable property,
other than arms, military papers, horses, and the like captured or found on a battlefield, may be appropriated only tothe extent that such taking is permissible in occupied areas (see pars. 405-411).”); 1956 FM 27-10 (Change No. 1
1976) ¶396 (“Public property captured or seized from the enemy, as well as private property validly captured on thebattlefield and abandoned property, is property of the United States … .”); 1958 UK MANUAL ¶615 (“Public enemy
property found or captured on a battlefield becomes, as a general rule, the property of the opposing belligerent.”).
535

Refer to § 7.7.2.2 (Forwarding Valuable Articles Found on the Dead).

536

Foster v. United States, 98 F. Supp. 349, 352 (Ct. Cl. 1951) (“[A] soldier may not make a profit out of thedisorder and flight which ensues from war. In the abandoned property which he comes upon, and which he must289

Failure to turn over such property to the proper authorities, or disposal of such property
for personal profit, is punishable under Article 103 of the Uniform Code of Military Justice. 537
5.17.4 Pillage Prohibited. Pillage is prohibited, both in general 538 and specifically withrespect to:•

the wounded, sick, shipwrecked, and dead; 539•

POWs; 540•

protected persons under the GC; 541•

persons in occupied territory 542 and in areas of non-international armed conflict; 543 and•cultural property. 544

In certain cases, there is an affirmative obligation to prohibit and prevent pillage. 545
5.17.4.1 Pillage – Definition and Notes on Terminology. Pillage is the taking ofprivate or public movable property (including enemy military equipment) for private or personal
turn over to the proper authority without delay, he does not acquire any proprietary interest. His taking possessionof it is done as an agent of the Government, and if it is not reclaimed by the owner who abandoned it, it belongs to
the Government.”).
537

See 10 U.S.C. § 903 (“(a) All persons subject to this chapter shall secure all public property taken from theenemy for the service of the United States, and shall give notice and turn over to the proper authority without delay
all captured or abandoned property in their possession, custody, or control. (b) Any person subject to this chapter
who—(1) fails to carry out the duties prescribed in subsection (a); (2) buys, sells, trades, or in any way deals in or
disposes of captured or abandoned property, whereby he receives or expects any profit, benefit, or advantage tohimself or another directly or indirectly connected with himself; or (3) engages in looting or pillaging; shall bepunished as a court-martial may direct.”).

538

See, e.g., HAGUE IV REG. art. 28 (“The pillage of a town or place, even when taken by assault, is prohibited.”);1899 HAGUE II art. 28 (same); LIEBER CODE art. 44 (“[A]ll robbery, all pillage or sacking, even after taking a placeby main force … are prohibited under the penalty of death, or such other severe punishment as may seem adequate
for the gravity of the offense.”).
539

Refer to § 7.4.2 (Affirmative Measures to Protect Against Pillage and Ill-Treatment); § 7.7.2.1 (Measures toPrevent the Dead From Being Despoiled); § 17.14.3 (Search, Collection, and Protection of the Wounded, Sick,
Shipwrecked, and Dead).
540

Refer to § 9.7 (POW Effects and Articles of Personal Use).

541

Refer to § 10.5.3.3 (Pillage Against Protected Persons).

542

Refer to § 11.18.1 (Prohibition Against Pillage in Occupied Territory).

543

Refer to § 17.6.4 (Prohibition on Pillage).

544

Refer to § 5.18.6 (Prohibition Against and Prevention of Theft, Pillage, Misappropriation, or Acts of Vandalism,
and Prohibition Against Requisition of Foreign Cultural Property).
545
Refer to § 5.18.6.1 (Obligation to Stop or Prevent Theft, Pillage, or Misappropriation of, and Acts of Vandalism
Against, Cultural Property); § 7.4.2 (Affirmative Measures to Protect Against Pillage and Ill-Treatment); § 17.14.3(Search, Collection, and Protection of the Wounded, Sick, Shipwrecked, and Dead).

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use. 546 It does not include an appropriation of property justified by military necessity. 547 For
example, if ordinary requisitions are unavailable, the taking of food does not constitutepillage. 548 Pillage also has been referred to as “looting” 549 and “plunder.” 550
5.17.4.2 History of Pillage. In the medieval era, pillage served as a form ofcompensation for private armies, but it ceased to be regarded as lawful with the widespread
adoption of standing armies at the end of the Eighteenth Century. The prohibition on pillage has,in part, been intended to maintain discipline among the armed forces. 551 For example, a memberof the armed forces who before or in the presence of the enemy quits his or her place of duty toplunder or pillage is guilty of the offense of misbehavior before the enemy. 552
5.17.5 Feasible Precautions Should Be Taken to Mitigate the Burden on Civilians. In
seizing or destroying enemy property, feasible precautions should be taken to mitigate theburdens imposed on civilians.
For example, in the practice of the United States, religious buildings, shrines, andconsecrated places employed for worship are used only for aid stations, medical installations, or546

10 U.S.C. § 950t(5) (“(5) PILLAGING.--Any person subject to this chapter who intentionally and in the absence ofmilitary necessity appropriates or seizes property for private or personal use, without the consent of a person withauthority to permit such appropriation or seizure, shall be punished….”). Consider ROME STATUTE, ELEMENTS OF
CRIMES, art. 8(2)(b)(xvi), Official Records of the Assembly of States Parties to the Rome Statute of the International
Criminal Court, First session, New York, ICC-ASP/1/3, 112, 145-6 (Sept. 3-10, 2002) (defining the elements of thewar crime of pillaging as including (1) appropriation of property, (2) intent “to deprive the owner of the property
and to appropriate it for private or personal use,” and (3) “appropriation … without the consent of the owner”).
547

Consider ROME STATUTE, ELEMENTS OF CRIMES art. 8(2)(b)(xvi), Official Records of the Assembly of States
Parties to the Rome Statute of the International Criminal Court, First session, New York, ICC-ASP/1/3, 112, 146
footnote 47 (Sept. 3-10, 2002) (“As indicated by the use of the term ‘private or personal use’, appropriations
justified by military necessity cannot constitute the crime of pillaging.”).
548

LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 405 (§143) (“If there is no time for ordinary requisitions toprovide food, forage, clothing, and fuel, or if the inhabitants of a locality have fled so that ordinary requisitions
cannot be made, a belligerent must take these articles wherever he can get them, and he is justified in so doing.”).
Refer to § 11.18.7 (Requisitions of Private Enemy Property).
549

10 U.S.C. § 903 (“(b) Any person subject to this chapter who- ... (3) engages in looting or pillaging; shall bepunished as a court-martial may direct.”); MANUAL FOR COURTS-MARTIAL IV-40 (¶27.c.(4)) (2012) (“‘Looting or
pillaging’ means unlawfully seizing or appropriating property which is located in enemy or occupied territory.”).
550

See, e.g., MANUAL FOR COURTS-MARTIAL IV-35 (¶23.c.(6)(b)) (2012) (“‘Plunder or pillage’ means to seize or
appropriate public or private property unlawfully.”); Prosecutor v. Jelisić, ICTY Trial Chamber, IT-95-10-T,
Judgment, ¶¶48-49 (Dec. 14, 1999) (noting that “[p]lunder is defined as the fraudulent appropriation of public or
private funds belonging to the enemy or the opposing party perpetrated during an armed conflict and related thereto”
and confirming the guilt of the accused on the charge of plunder because he “stole money, watches, jewellery andother valuables from the detainees upon their arrival at Luka camp by threatening those who did not hand over theirpossessions with death”).
551

1958 UK MANUAL ¶589 (noting that the prohibitions contained in Hague IV Regulations “did not constitute newrules at the time they were promulgated” and that “it has for a long time past been embodied in the regulations ofevery civilized army, for nothing is more demoralizing to troops or more subversive of discipline than plundering.”).

552
10 U.S.C. § 899 (“Any member of the armed forces who before or in the presence of the enemy— … (6) quits hisplace of duty to plunder or pillage; … shall be punished by death or such other punishment as a court-martial may
direct.”).

291

the housing of wounded personnel awaiting evacuation, provided in each case that a situation of
emergency requires such use. 553
Similarly, if armed forces use a private residence, they must treat its inhabitants andowners humanely and with as much consideration as the circumstances permit. 554 In particular,
the armed forces should generally allow the inhabitants to continue to live in part of their own
homes, and should not expel them in the absence of alternate shelter. 555 But if imperative
military necessity requires the removal of the inhabitants, then efforts should be made to givethem notice and to aid them in taking their essential possessions. 556 If the armed forces takeanything, they should leave a note to this effect. 557
However, there is no obligation to protect abandoned property in the area of active
operations. 558
5.17.5.1 Compensation for Property Seizure or Damage. Although reasonable
efforts should be made to spare civilians from unnecessary harm when seizing or destroying
enemy property, the law of war imposes no obligation to compensate for loss of, or damage to,private property imperatively demanded by the necessities of war, including damage incidental
to combat operations. 559 However, if time allows, a record of the use or damage should be kept,
or given to the owner, so that in the event of funds being provided by either belligerent at the553

Refer to § 11.18.6.4 (Municipal, Religious, Charitable, and Cultural Property).

554

GREENSPAN, MODERN LAW OF LAND WARFARE 283 (“Where private dwellings are taken over by troops, theinhabitants must be treated humanely and afforded as much consideration as the circumstances permit.”). For
example, DICK COUCH, THE SHERIFF OF RAMADI 69 (2008) (“‘On yet another SR [special reconnaissance] mission,
we had intelligence that a restaurant was being used as a meeting place for insurgents, but there were a lot of otherIraqis coming and going there as well. We needed an OP [observation post] that was close to the restaurant but not
too close -- a secure perch from which we could observe the target for several days and still be safe from informers.
We found this three-story house that was several hundred yards from the restaurant entrance. It was perfect. We
sent one of our interpreters to speak with the residents and to make arrangements to use one of their upper-floor
rooms for a few days. We paid them well, but the key was that after being coached by the terp and our scouts, wewere very polite and respectful of their customs.’”) (second alteration in original).
555

1958 UK MANUAL ¶615 (“When troops are quartered in private dwellings some rooms should be left to the
inhabitants; the latter should not be driven into the streets and left without shelter.”).

556

1958 UK MANUAL ¶615 (“If for military reasons, whether for operational purposes or to protect men and animals
from the weather, it is imperative to remove the inhabitants, efforts should be made to give them notice and provide
them with facilities for taking essential baggage with them.”).

557

1958 UK MANUAL ¶615 (“A note should be left if anything is taken.”); GREENSPAN, MODERN LAW OF LANDWARFARE 284 (“For anything validly taken, a note to this effect should be left.”).
558

1958 UK MANUAL ¶615 (“There is … no obligation to protect abandoned property.”); GREENSPAN, MODERNLAW OF LAND Warfare 284 (“[T]here is no obligation on the part of the invader to protect abandoned property in thearea of active operations … .”).
559

See, e.g., 1958 UK MANUAL ¶593 (“The owner of property may claim neither rent for its use nor compensation
for damage caused by the necessities of war.”).

292

close of hostilities to compensate the owners, there may be evidence to assist the assessors. 560
As a matter of practice, during counter-insurgency operations, U.S. forces have often
made payments to, or taken other actions on behalf of, civilians suffering loss. 561
5.18 PROTECTION OF CULTURAL PROPERTY DURING HOSTILITIES
Certain types of property receive additional protection as cultural property. Culturalproperty, the areas immediately surrounding it, and appliances in use for its protection should besafeguarded and respected.
Some obligations with respect to cultural property apply during non-international armed
conflict. 562 There are also obligations with respect to cultural property during occupation 563 andpeacetime. 564 Certain treaty obligations with respect to cultural property may only apply on the
territory of Parties to the 1954 Hague Cultural Property Convention, 565 but the United States has
previously identified some of these obligations as customary international law. 566 DoD
personnel, therefore, in the absence of contrary guidance by competent authority, should act as if
they were legally bound by the rules for the protection of cultural property in the 1954 Hague
Cultural Property Convention during hostilities even when conducting operations in the territoryof a State that is not a Party to the 1954 Hague Cultural Property Convention. 567
5.18.1 Definition of Cultural Property. For the purpose of the 1954 Hague Cultural
Property Convention and this manual, cultural property includes, irrespective of origin orownership: 568

560

1958 UK MANUAL ¶593 (“If time allows, however, a note of the use or damage should be kept, or given to theowner, so that in the event of funds being provided by either belligerent at the close of hostilities to compensate theinhabitants, there may be evidence to assist the assessors.”).

561

For example, DEPARTMENT OF THE ARMY FIELD MANUAL 3-24.2, Tactics in Counterinsurgency, ¶7-89 (Apr.
2009) (“Recent experiences have shown the effectiveness of using money to win popular support and further theinterests and goals of units conducting counterinsurgency operations. … A counterinsurgency force can use money
to … • Repair damage resulting from combined and coalition operations. • Provide condolence payments to civilians
for casualties from combined and coalition operations.”).

562

Refer to § 17.11 (Protection of Cultural Property in NIAC).

563

Refer to § 11.19 (Protection of Cultural Property During Occupation).

564

Refer to § 5.18.2.1 (Peacetime Obligations to Prepare for the Safeguarding of Cultural Property).

565

See, e.g., 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(1) (“The High Contracting Parties undertake torespect cultural property situated within their own territory as well as within the territory of other High Contracting
Parties.”).

566

Refer to § 5.18.8 (Special Protection for Certain Cultural Property).

567

Refer to § 3.1.1 (DoD Practice of Applying Law of War Rules Even When Not Technically Applicable).

568

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 1 (“For the purposes of the present Convention, the term
‘cultural property’ shall cover, irrespective of origin or ownership: (a) movable or immovable property of great
importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether
religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest;
works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as

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•

movable or immovable property of great importance to the cultural heritage of every
people; 569•

buildings intended to shelter cultural property; 570 and•centers containing monuments. 571

5.18.1.1 Definition of Cultural Property – Notes on Terminology. “Culturalproperty” is a term of art that is defined in the 1954 Hague Cultural Property Convention. The
definition in the 1954 Hague Cultural Property Convention may be more limited than culturalproperty described and protected by other instruments.
For example, the Lieber Code contemplates protection for property belonging to“establishments of an exclusively charitable character, to establishments of education, or
foundations for the promotion of knowledge, whether public schools, universities, academies oflearning or observatories, museums of the fine arts, or of a scientific character,” as well as“[c]lassical works of art, libraries, scientific collections, or precious instruments, such as
astronomical telescopes.” 572 The Hague IV Regulations seek to protect “buildings dedicated toreligion, art, science, or charitable purposes, historic monuments.” 573 Hague IX seeks to protect“sacred edifices, buildings used for artistic, scientific, or charitable purposes, [and] historicmonuments.” 574 The Roerich Pact seeks to protect “historic monuments, museums, scientific,
artistic, educational and cultural institutions.” 575 AP I seeks to protect “historic monuments,
works of art or places of worship which constitute the cultural or spiritual heritage of
peoples.” 576
Because the definition of cultural property in the 1954 Hague Cultural Property
Convention is different from the categories of property protected by other instruments, the scopeof objects being protected by each instrument is not the same (although there may be overlap).
Nevertheless, the protections afforded cultural property by the 1954 Hague Cultural Property
Convention are supplementary to those afforded by earlier treaties, although the distinctive
scientific collections and important collections of books or archives or of reproductions of the property defined
above; (b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property
defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended toshelter, in the event of armed conflict, the movable cultural property defined in subparagraph (a); (c) centres
containing a large amount of cultural property as defined in sub-paragraphs (a) and (b), to be known as ‘centres
containing monuments’.”).
569

Refer to § 5.18.1.2 (Movable or Immovable Property of Great Importance to the Cultural Heritage of Every
People).
570

Refer to § 5.18.1.3 (Buildings Intended to Preserve Cultural Property).

571

Refer to § 5.18.1.4 (Centers Containing Monuments).

572

LIEBER CODE arts. 34-36.

573

HAGUE IV REG. art. 27.

574

HAGUE IX art. 5.

575

ROERICH PACT art. 1.

576

AP I art. 53.

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emblem for cultural property established in the 1954 Hague Cultural Property Convention is to
be used where appropriate instead of emblems established in earlier treaties. 577
5.18.1.2 Movable or Immovable Property of Great Importance to the Cultural
Heritage of Every People. Property must be “of great importance to the cultural heritage ofevery people” to qualify as cultural property. Ordinary property (such as churches or works ofart) that are not of great importance to the cultural heritage of every people would not qualify ascultural property, although such property may benefit from other protections, such as thoseafforded civilian objects or enemy property. 578
The question of whether cultural property is “of great importance to the cultural heritageof every people” may involve delicate and somewhat subjective judgments. 579 Items that caneasily be replaced would not qualify as being of great importance. 580 On the other hand,
irreplaceable items may be of great cultural importance, even if they have little monetary
value. 581
Cultural property may include, but is not limited to, the following types of property(provided the property is of great importance to the cultural heritage of every people):577•

monuments of architecture, art, or history, whether religious or secular; 582•

archaeological sites;•

groups of buildings that, as a whole, are of historical or artistic interest; 583

Refer to § 19.17.1 (Relationship Between the 1954 Hague Cultural Property Convention and Earlier Treaties).

578

Refer to § 5.5.2 (Persons, Objects, and Locations That Are Protected From Being Made the Object of Attack);§ 5.17 (Seizure and Destruction of Enemy Property).
579

See ROGERS, LAW ON THE BATTLEFIELD 90 (“It must be property of great importance to the cultural heritage ofevery people. This may involve delicate decisions about whether, for example, an original manuscript by a minor
composer, say Spohr, was of great importance to the cultural heritage of every people, perhaps not. The situation
would be different if it were an original manuscript by one of the great composers, say Schubert.”).
580

See JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 50 (1996) (“Certain objects, although of limited value, may
be important for the national culture while others, even though of great value, can be replaced and are therefore lessimportant.”).
581

For example, JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 49-50 (1996) (“[A] papyrus reporting a marriagethat took place three thousand years ago, although it was of no intrinsic cultural value, was of very great cultural
importance because of the fact that it enabled an institution, on which no such ancient information existed, to bestudied.”) (internal quotation marks omitted).
582

See also JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 50-51 (1996) (“[W]orks of architecture, sculpture,
specially designed to perpetuate the memory of a person, action, period, event or thing, or as buildings, structures,
edifices remarkable for their archaeological, historical or aesthetic interest or intended to commemorate a notableperson, action or event.”).
583

See also JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 51 (1996) (During the drafting of the 1954 Hague
Cultural Property Convention “the Scandinavian countries proposed the protection of certain sites which, although
not containing particularly remarkable monuments, were of undoubted value from a cultural point of view and forthat reason had a right to be protected. It was explained that the Scandinavian countries had very little cultural

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•

works of art;•

manuscripts, books, and other objects of artistic, historical, or archaeological interest;•

scientific collections; 584 and•important collections of books or archives or of reproductions of the property defined
above. 585

Natural sites of great beauty are not included within the definition of cultural property. 586
5.18.1.3 Buildings Intended to Preserve Cultural Property. Cultural property isalso understood to include buildings whose main and effective purpose is to preserve or exhibit
movable cultural property, such as museums, large libraries, and depositories of archives, andrefuges intended to shelter cultural property in the event of armed conflict. 587
For these types of buildings, protection is gained from the structure’s purpose andcontents as opposed to the physical structure itself constituting immovable property of great
importance to the cultural heritage of every people. The building must be intended to containand, in fact, contain, conserve, or exhibit movable cultural property as its primary purpose. 588
Alternatively, the structure may be intended to store movable cultural property for protection in
the event of armed conflict. Some of these refuges may be subject to special protection. 589

property and that their gift to culture consisted mainly in distant mediaeval villages or lonely farms.”) (internal
quotation marks omitted).
584

See also JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 52 (1996) (Scientific “collections are made up of
scientific books but also cover other objects such as Boissier’s herbarium in Geneva or the collections of importantlaboratories ... [and] national monuments that were objects of valuable scientific research, such as rare animals orplants that were becoming extinct.”).

585

See also JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 52 (1996) (“[P]rotection is accorded to importantcollections of books without their necessarily having to be of artistic, historical or archaeological interest. Any
important library is thus protected, probably in the spirit of protecting human knowledge.”).
586
See JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 53 (1996) (“The [1954 Hague Cultural Property] Conference
also discussed the protection of ‘natural sites of great beauty’ (United States of America and Japan), but appears tohave given up the idea for reasons mentioned by the delegation of France, who considered that ‘it was probably
difficult to define the protection of natural sites as their value was of a subjective nature. At best, only a diluted
form of protection could result. Finally, it had been observed that natural sites could often be restored very
quickly.”).
587

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 1(b) (defining the term cultural property to include, interalia, “buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in
sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, inthe event of armed conflict, the movable cultural property defined in subparagraph (a)”).

588

See JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 53-54 (1996) (“According to subparagraph (b), suchbuildings are protected not because of their own historical value but because of their purpose and their content. The
purpose must be the primary one, the very aim and raison d'etre of such a building; it must also be effectively true -the building must in fact contain, conserve or exhibit movable cultural property.”).
589

Refer to § 5.18.8 (Special Protection for Certain Cultural Property).

296

5.18.1.4 Centers Containing Monuments. Cultural property also includes centers
containing monuments, i.e., centers containing a large amount of cultural property or buildings
intended to preserve cultural property. 590 This includes monument complexes or major groups ofbuildings containing movable and immovable cultural property.
5.18.2 Respect and Safeguarding of Cultural Property. The protection of culturalproperty comprises the safeguarding of and respect for such property. 591 Safeguarding consistsof the affirmative acts that are to be taken to ensure the protection of cultural property. 592 On theother hand, respect essentially requires parties to refrain from certain acts, such as placing
cultural property in peril or causing damage to it. 593
Safeguarding and respect are mutually reinforcing obligations that help ensure theprotection of cultural property.
5.18.2.1 Peacetime Obligations to Prepare for the Safeguarding of Cultural
Property. Parties to 1954 Hague Cultural Property Convention are obliged to undertake toprepare in time of peace for the safeguarding of cultural property situated within their own
territory against the foreseeable effects of an armed conflict, by taking such measures as they
consider appropriate. 594 This obligation reflects the opinion that measures for the protection ofcultural property during armed conflict, in order to be effective, must begin in peacetime. 595
The failure of a State to fulfill its obligations in peacetime to safeguard cultural property
during armed conflict does not relieve other States of their obligation to respect cultural

590

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 1(c) (defining the term cultural property to include, interalia, “centres containing a large amount of cultural property as defined in sub-paragraphs (a) and (b) to be known as‘centres containing monuments’”). See also JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 54 (1996) (“The term
‘centres containing monuments’ was preferred to the terms ‘groups’ or ‘groups of buildings’ when the reference wasto larger areas containing a considerable amount of cultural property coming under subparagraphs (a) and (b). The
term comprises a group of historical or artistic monuments situated in the same vicinity, such as the districts ofcertain cities or even entire cities.”).
591

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 2 (“For the purposes of the present Convention, theprotection of cultural property shall comprise the safeguarding of and respect for such property.”).

592

JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 57 (1996) (“‘Safeguarding’ consists of all the positive measures(defining the action to be taken) which are designed to ensure the best possible material conditions for the protectionof cultural property.”).

593

JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 57 (1996) (“Respect … has an essentially negative character: it
represents an obligation not to commit a number of prohibited acts. Respect therefore implies a requirement torefrain from certain acts, such as placing cultural property in peril or causing damage to it.”).

594

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 3 (“The High Contracting Parties undertake to prepare intime of peace for the safeguarding of cultural property situated within their own territory against the foreseeable
effects of an armed conflict, by taking such measures as they consider appropriate.”).

595

1954 HAGUE CULTURAL PROPERTY CONVENTION preamble (“Guided by the principles concerning the protectionof cultural property during armed conflict, as established in the Conventions of The Hague of 1899 and of 1907 andin the Washington Pact of 15 April, 1935; Being of the opinion that such protection cannot be effective unless bothnational and international measures have been taken to organize it in time of peace;”).

297

property. 596
5.18.3 Refraining From Any Use for Purposes That Are Likely to Expose It to
Destruction or Damage. In general, no use should be made of cultural property, its immediatesurroundings, or appliances in use for its protection, for purposes that are likely to expose it todestruction or damage in the event of armed conflict. 597 However, such use is permissible whenmilitary necessity imperatively requires such use. 598
Uses that would be likely to expose cultural property to destruction or damage in theevent of armed conflict would include: (1) using the cultural property for military purposes; 599(2) placing military objectives near cultural property; or (3) using the cultural property in such a
way that an adversary would likely regard it as a military objective. 600 For example, such uses
would include billeting military personnel in buildings that constitute cultural property, or
emplacing artillery, mortars, or anti-air systems on the grounds of cultural property.
In addition, it is prohibited to use deliberately the threat of potential harm to culturalproperty to shield military objectives from attack, or otherwise to shield, favor, or impede
military operations. 601 There is no waiver of this obligation in cases of imperative militarynecessity.
5.18.3.1 Imperative Military Necessity Waiver. Cultural property, its immediatesurroundings, and appliances in use for its protection may be used for purposes that are likely to
expose it to destruction or damage if military necessity imperatively requires such use. The
requirement that military necessity imperatively require such acts should not be confused withconvenience or be used to cloak slackness or indifference to the preservation of culturalproperty. 602 This waiver of obligations with respect to cultural property is analogous to the5961954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(5) (“No High Contracting Party may evade theobligations incumbent upon it under the present Article, in respect of another High Contracting Party, by reason of
the fact that the latter as not applied the measures of safeguard referred to in Article 3.”).

597

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(1) (“The High Contracting Parties undertake to respect
cultural property situated within their own territory as well as within the territory of other High Contracting Parties
by refraining from any use of the property and its immediate surroundings or of the appliances in use for its
protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict … .”).

598

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(2) (“The obligations mentioned in paragraph 1 of thepresent Article may be waived only in cases where military necessity imperatively requires such a waiver.”).

599

Compare § 5.18.8.2 (Conditions for the Granting of Special Protection – No Use for Military Purposes).

600

Refer to § 5.6 (Military Objectives).

601

Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military
Operations).
602

See General Dwight D. Eisenhower, Commander-in-Chief, U.S. Army, Memorandum Regarding the Protectionof Historical Monuments in Italy, Dec. 29, 1943, X WHITEMAN’S DIGEST 438 (§13) (“If we have to choose between
destroying a famous building and sacrificing our own men, then our men’s lives count infinitely more and thebuilding must go. But the choice is not always so clear-cut as that. In many cases the monuments can be sparedwithout any detriment to operational needs. Nothing can stand against the argument of military necessity. That is
an accepted principle. But the phrase ‘military necessity’ is sometimes used where it would be more truthful to
speak of military convenience or even personal convenience. I do not want it to cloak slackness or indifference.”).

298

requirement that enemy property may only be seized or destroyed if imperatively required by thenecessities of war. 603
5.18.4 Other Feasible Precautions to Reduce the Risk of Harm to Cultural Property.
Other feasible precautions should be taken to reduce the risk of harm to cultural property. 604
Such precautions may include:•

determining the location of cultural property and disseminating that information among
the armed forces; 605•

compiling and promulgating lists of cultural property and areas that are not to be
attacked; 606•

establishing civil authorities to assume responsibility for planning and acting to ensure
respect for cultural property under its control; 607•

physically shielding cultural property from harm; and•establishing refuges and evacuating movable cultural property to them. 608

5.18.5 Refraining From Any Act of Hostility. In general, acts of hostility may not bedirected against cultural property, its immediate surroundings, or appliances in use for its
603

Refer to § 5.17.2 (Enemy Property – Military Necessity Standard). For general discussion of military necessity
refer to § 2.2 (Military Necessity).
604

Refer to § 5.2.3 (Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other
Protected Persons and Objects).
605

For example, General Dwight D. Eisenhower, Commander-in-Chief, U.S. Army, Memorandum Regarding theProtection of Historical Monuments in Italy, Dec. 29, 1943, X WHITEMAN’S DIGEST 438 (§13) (“It is a
responsibility of higher commanders to determine through A.M.G. Officers the locations of historical monuments
whether they be immediately ahead of our front lines or in areas occupied by us. This information passed to lower
echelons through normal channels places the responsibility on all Commanders of complying with the spirit of thisletter.”).
606

For example, Strobe Talbot, Letter of Submittal, May 12, 1998, MESSAGE FROM THE PRESIDENT TRANSMITTING
THE 1954 HAGUE CULTURAL PROPERTY CONVENTION VIII (1999) (“During Operation Desert Storm, for example,
intelligence resources were utilized to look for cultural property in order to properly identify it. Target intelligence
officers identified cultural property or cultural property sites in Iraq; a ‘no-strike’ target list was prepared, placing
known cultural property off limits from attack, as well as some otherwise legitimate targets if their attack mightplace nearby cultural property at risk of damage.”); 7th Air Force Operations Order 71-17 (Rules of Engagement),
reprinted in 121 CONGRESSIONAL RECORD 17555 (Jun. 6, 1975) (specifying during the Vietnam War “Angkor Wat
Park: This area will not be attacked for any reason. Under no circumstances will [forward air controllers] control orassist air strikes of any nation within the Angkor Wat area. Should a [forward air controller] observe such a strike
being made, he will advise the [Forces Armée Nationale Khmer] ground commander and depart the area
immediately. Other Areas of Cultural Value: Except during [combat search and rescue] operations, no U.S. air
strikes will be made within 1,000 meters of any of the areas of cultural value [nearly 100 other sites specificallylisted in the directive]. U.S. [forward air controllers] will not control or assist air strikes of any nation within 1,000
meters of these areas regardless of [Forces Armée Nationale Khmer] request of validation.”).
607

These include museum curators and staff, local fire and law enforcement authorities, and civil defense personnel.

608

Refer to § 5.18.1.3 (Buildings Intended to Preserve Cultural Property).

299

protection. 609 Acts of hostility may, however, be directed against cultural property, its
immediate surroundings, or appliances in use for its protection, when military necessity
imperatively requires such acts. 610
5.18.5.1 Imperative Military Necessity Waiver. Acts of hostility may be directedagainst cultural property, its immediate surroundings, or appliances in use for its protection whenmilitary necessity imperatively requires such acts. The requirement that military necessity
imperatively require such acts should not be confused with convenience or be used to cloak
slackness or indifference to the preservation of cultural property. 611 This waiver of obligations
with respect to cultural property is analogous to the requirement that enemy property may only
be seized if imperatively required by the necessities of war. 612
For example, if cultural property is being used by an opposing force for military
purposes, then military necessity generally would imperatively require its seizure or
destruction. 613
Similarly, if an opposing force uses cultural property and its immediate surroundings toprotect military objectives, then the attack of those military objectives may be imperatively
required by military necessity. 614 Or, if a military objective was located near cultural property,
the protection afforded the area surrounding the cultural property could be subject to waiver forreasons of imperative military necessity such that the attack of the military objective would bepermissible, despite its proximity to cultural property. 615
609

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(1) (“The High Contracting Parties undertake to respect
cultural property situated within their own territory as well as within the territory of other High Contracting Parties… by refraining from any act of hostility directed against such property.”).

610

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(2) (“The obligations mentioned in paragraph 1 of thepresent Article may be waived only in cases where military necessity imperatively requires such a waiver.”).

611

Refer to footnote 602 in § 5.18.3.1 (Imperative Military Necessity Waiver).

612

Refer to § 5.17.2 (Enemy Property – Military Necessity Standard). For general discussion of military necessity,refer to § 2.2 (Military Necessity).
613

Cf. ROERICH PACT art. 5 (“The monuments and institutions mentioned in article I shall cease to enjoy theprivileges recognized in the present treaty in case they are made use of for military purposes.”); HAGUE IV REG. art.
27 (“In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicatedto religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick andwounded are collected, provided they are not being used at the time for military purposes.”) (emphasis added);
HAGUE IX art. 5 (“In bombardments by naval forces all the necessary measures must be taken by the commander tospare as far as possible sacred edifices, buildings used for artistic, scientific, or charitable purposes, historicmonuments, hospitals, and places where the sick or wounded are collected, on the understanding that they are notused at the same time for military purposes.”) (emphasis added). Compare § 5.18.8.2 (Conditions for the Grantingof Special Protection – No Use for Military Purposes).
614

FINAL REPORT ON THE PERSIAN GULF WAR 610 (“While Article 4(1) of the 1954 Hague Convention provides
specific protection for cultural property, Article 4(2) permits waiver of that protection where military necessity
makes such a waiver imperative; such ‘imperative military necessity’ can occur when an enemy uses culturalproperty and its immediate surroundings to protect legitimate military targets, in violation of Article 4(1).”).
615

Strobe Talbot, Letter of Submittal, May 12, 1998, MESSAGE FROM THE PRESIDENT TRANSMITTING THE 1954
HAGUE CULTURAL PROPERTY CONVENTION VIII (1999) (During Operation DESERT STORM, when “attacking
legitimate targets in the vicinity of cultural objects, to the extent possible, weapons were selected that would300

Even where the waiver of the protection afforded cultural property, its immediatesurroundings, or appliances in use for its protection may be warranted for reasons of imperative
military necessity, the risk of harm to the cultural property must be considered in a
proportionality analysis 616 and feasible precautions should be taken to reduce the risk of harm tothe cultural property. 617 And, even where waiver of the protection of cultural property may be
warranted as a matter of law, as a matter of policy, decision-makers may still seek to refrain fromharming cultural property. 618
5.18.6 Prohibition Against and Prevention of Theft, Pillage, Misappropriation, or Acts of
Vandalism, and Prohibition Against Requisition of Foreign Cultural Property. Any form of theft,pillage, or misappropriation of, and any acts of vandalism directed against, cultural property areprohibited. 619 In addition, Parties to the 1954 Hague Cultural Property Convention shall refrainfrom requisitioning movable cultural property situated in the territory of another Party to the1954 Hague Cultural Property Convention.
There are no “imperative military necessity” waivers from these obligations.
Pillage is prohibited, even if the property does not constitute cultural property. 620
5.18.6.1 Obligation to Stop or Prevent Theft, Pillage, or Misappropriation of, andActs of Vandalism Against, Cultural Property. Military commanders have an obligation to takereasonable measures to prevent or stop any form of theft, pillage, or misappropriation of, and any
acts of vandalism directed against, cultural property. This obligation may also be viewed as partof the obligation to take feasible precautions to reduce the risk of harm to cultural property. 621
What efforts would be reasonable would depend on a variety of factors, such asavailability of forces, the commander’s mission, and enemy threats. What efforts would beaccomplish destruction of the target while minimizing the risk of collateral damage to nearby cultural or civilian
property. However, the proximity of military objectives to cultural property did not render those military objectives
immune from attack, nor would it under the [1954 Hague Cultural Property] Convention.”).
616

Refer to § 5.12 (Proportionality – Prohibition on Attacks Expected to Cause Excessive Incidental Harm).

617

Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk ofHarm to Protected Persons and Objects).
618

For example, H. STIMSON, ON SERVICE IN PEACE AND WAR 625 (1948) (“With President Truman’s warm support
I struck off the list of suggest targets the city of Kyoto. Although it was a target of considerable militaryimportance, it had been the ancient capital of Japan and was a shrine of Japanese art and culture. We determinedthat it should be spared. I approved four other targets including the cities of Hiroshima and Nagasaki.”).
619

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(3) (“The High Contracting Parties further undertake toprohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts ofvandalism directed against, cultural property.”). See also LIEBER CODE art. 36 (“In no case shall [classical works ofart, libraries, scientific collections, or precious instruments] be sold or given away, if captured by the armies of theUnited States, nor shall they ever be privately appropriated, or wantonly destroyed or injured.”).
620

Refer to § 5.17.4 (Pillage Prohibited).

621

Refer to § 5.18.4 (Other Feasible Precautions to Reduce the Risk of Harm to Cultural Property).

301

reasonable would also depend on the information available to the commander at the time. 622
Some measures to ensure adherence to this obligation may include training members of
the armed forces and persons authorized to accompany the armed forces on the protection ofcultural property in general (and the prohibition of theft, pillage, or vandalism in particular) as
part of general procedures for the dissemination and implementation of the law of war. 623 Other
measures may include: (1) issuing and enforcing orders to the same effect; 624 (2) investigating
alleged or suspected offenses and taking disciplinary or punitive action, as appropriate under
U.S. law; 625 and (3) taking measures to facilitate the recovery and return of stolen or
misappropriated cultural property.
Although it may not always be feasible to prevent or stop theft, pillage, or
misappropriation of, or acts of vandalism against, cultural property, efforts to identify culturalproperty within an area of operations and to secure it from theft or pillage are a prudent part ofthe planning process of military operations. For example, such efforts may deny opposing forces
the opportunity to exploit harm to cultural property for propaganda purposes.
5.18.6.2 Prohibition Against Requisition of Movable Cultural Property Situatedin the Territory of Another Party to the 1954 Hague Cultural Property Convention. Parties tothe 1954 Hague Cultural Property Convention shall refrain from requisitioning movable culturalproperty situated in the territory of another Party to the 1954 Hague Cultural Property
Convention. 626
This rule makes no distinction between movable property of nationals of the country inwhich it is located and property of nationals of another High Contracting Party. As such, itwould also protect from requisition any movable property from a third State temporarily on loan
for an exhibition within the territory of a State participating in an armed conflict. 627
5.18.7 Marking of Cultural Property With the Distinctive Emblem. Cultural property

622

Refer to § 5.3 (Assessing Information Under the Law of War).

623

Refer to § 18.6 (Dissemination, Study, and Other Measures to Facilitate Understanding of Duties Under the Law
of War).
624

For example, General John P. Abizaid, U.S. Central Command, General Order 1B (GO-1B), Prohibited Activities
for U.S. Department of Defense Personnel Present Within the United States Central Command (USCENTCOM)
Area of Responsibility (AOR), ¶2h (Mar. 13, 2006) (prohibiting “[r]emoving, possessing, selling, defacing or
destroying archaeological artifacts or national treasures.”).
625

Refer to § 18.19 (Discipline in National Jurisdictions of Individuals for Violations of the Law of War).

626

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(3) (“They [the High Contracting Parties] shall, refrainfrom requisitioning movable cultural property situated in the territory of another High Contracting Party.”).

627

JIRI TOMAN, CULTURAL PROPERTY IN WARTIME 71 (1996) (“[T]he prohibition of requisitioning should also apply
to property existing on the territory of a High Contracting Party but belonging to the nationals of another HighContracting Party, as in the case of the collections of the historical or scientific institutes in Athens, Cairo, Paris, andRome. The same guarantee would also apply in respect of movable cultural property made available on loan for an
exhibition ... .”).

302

may bear a distinctive emblem so as to facilitate its recognition. 628 This distinctive emblem is
described in Article 16 of the 1954 Hague Cultural Property Convention. 629 There is a degree of
discretion as to the placing of the distinctive emblem and its degree of visibility. 630 The emblem
may be displayed on flags or armlets, and it may be painted on an object or represented in any
other appropriate form. 631
5.18.7.1 Distinctive Emblem Facilitates Identification Rather Than Confers Status
as Such. As is the case with distinctive emblems for medical personnel, units, transport, andfacilities, the distinctive emblem for cultural property facilitates identification, rather thanconfers cultural property status as such. 632 For example, cultural property may be protected,
even though it is not marked with the distinctive emblem. On the other hand, a distinctive
emblem placed on property does not make that property cultural property (and grantcorresponding protections) if that property does not meet the criteria for cultural property (or thecorresponding criteria for protection). 633
5.18.7.2 Display of the Distinctive Emblem for Cultural Property – Once Versus
Three Times. In some cases, the distinctive emblem for cultural property is to be used once,
while in other cases, the distinctive emblem for cultural property is to be displayed three times ina triangular formation (one shield below the other two shields). 634
The distinctive emblem for cultural property used once may only be used as a means ofidentification of:•cultural property not under special protection;•

the persons responsible for the duties of control in accordance with the Regulations for
the Execution of the 1954 Hague Cultural Property Convention; 635

628

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 6 (“In accordance with the provisions of Article 16, culturalproperty may bear a distinctive emblem so as to facilitate its recognition.”).

629

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 16(1) (“The distinctive emblem of the Convention shalltake the form of a shield, pointed below, per saltire blue and white (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 eitherside being taken up by a white triangle).”).

630

REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 20(1) (“Theplacing of the distinctive emblem and its degree of visibility shall be left to the discretion of the competentauthorities of each High Contracting Party.”).
631

REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 20(1) (“It may
be displayed on flags or armlets; it may be painted on an object or represented in any other appropriate form.”).
632

Compare § 7.15 (Display of the Distinctive Emblem to Facilitate Identification).

633

Refer to § 5.18.1 (Definition of Cultural Property).

634

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 16(2) (“The emblem shall be used alone, or repeated threetimes in a triangular formation (one shield below), under the conditions provided for in Article 17.”).

635

Refer to § 4.14 (Personnel Engaged in Duties Related to the Protection of Cultural Property).

303

•

the personnel engaged in the protection of cultural property; 636 and•the identity cards mentioned in the Regulations for the Execution of the 1954 Hague
Cultural Property Convention. 637

The distinctive emblem, repeated three times, may be used only as a means ofidentification of: 638•

immovable cultural property under special protection; 639•

the transport of cultural property under the special protection or in urgent cases; 640 and•

improvised refuges, under the conditions provided for in the Regulations for the
Execution of the 1954 Hague Cultural Property Convention. 641

5.18.7.3 Display of the Distinctive Emblem on Immovable Cultural Property. The
distinctive emblem for cultural property may not be placed on any immovable cultural property
unless at the same time there is displayed an authorization duly dated and signed by thecompetent authority of the relevant State. 642
5.18.7.4 Other Uses of the Distinctive Emblem for Cultural Property Prohibited
During Armed Conflict. During armed conflict, the use of the distinctive emblem for culturalproperty in any other cases than those mentioned in the 1954 Hague Cultural Property
Convention, and the use for any purpose whatsoever of a sign resembling the distinctive emblem,
is forbidden. 643
636

Refer to § 4.14 (Personnel Engaged in Duties Related to the Protection of Cultural Property).

637

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 17(2) (“The distinctive emblem may be used alone only asa means of identification of: (a) cultural property not under special protection; (b) the persons responsible for theduties of control in accordance with the Regulations for the execution of the Convention; (c) the personnel engaged
in the protection of cultural property; (d) the identity cards mentioned in the Regulations for the execution of theConvention.”).

638

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 17(1) (“The distinctive emblem repeated three times may
be used only as a means of identification of: (a) immovable cultural property under special protection; (b) thetransport of cultural property under the conditions provided for in Articles 12 and 13; (c) improvised refuges, under
the conditions provided for in the Regulations for the execution of the Convention.”).

639

Refer to § 5.18.8 (Special Protection for Certain Cultural Property).

640

Refer to § 5.18.9 (Transport of Cultural Property).

641

Refer to § 5.18.8 (Special Protection for Certain Cultural Property).

642

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 17(4) (“The distinctive emblem may not be placed on any
immovable cultural property unless at the same time there is displayed an authorization duly dated and signed by thecompetent authority of the High Contracting Party.”).

643

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 17(3) (“During an armed conflict, the use of the distinctive
emblem in any other cases than those mentioned in the Cultural Property Convention, and the use for any purpose
whatever of a sign resembling the distinctive emblem, shall be forbidden.”). Consider AP I art. 38(1)(a) (“It is also
prohibited to misuse deliberately in an armed conflict other internationally recognized protective emblems, signs or
signals, including the flag of truce, and the protective emblem of cultural property.”).

304

5.18.8 Special Protection for Certain Cultural Property. A highly limited category ofcultural property receives special protection by its entry in an International Register. 644
The standards governing the protection of such cultural property are essentially the sameas the standards governing the protection of cultural property under customary law 645 and theprotection afforded all cultural property under the 1954 Hague Cultural Property Convention. 646
However, the special procedures applicable to cultural property under special protection facilitate
its protection beyond that afforded cultural property that is not under special protection.
Special protection can apply to: 647•

a limited number of refuges intended to shelter movable cultural property in the event ofarmed conflict;•a limited number of centers containing monuments and other immovable property of very
great importance; and•improvised refuges under the procedures specified in the Regulations for the Execution of
the 1954 Hague Cultural Property Convention. 648

644

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8(6) (“Special protection is granted to cultural property by
its entry in the ‘International Register of Cultural Property under Special Protection’. This entry shall only be made,in accordance with the provisions of the present Convention and under the conditions provided for in theRegulations for the execution of the Convention.”).

645

See United States, Statement on Ratification of the 1954 Hague Cultural Property Convention, Mar. 13, 2009,
2575 UNTS 7, 8 (“It is the understanding of the United States of America that ‘special protection’, as defined in
Chapter II of the Convention, codifies customary international law in that it, first, prohibits the use of any culturalproperty to shield any legitimate military targets from attack and, second, allows all property to be attacked using
any lawful and proportionate means, if required by military necessity and notwithstanding possible collateral
damage to such property.”).
646

Compare 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 9 (“The High Contracting Parties undertake toensure the immunity of cultural property under special protection by refraining, from the time of entry in theInternational Register, from any act of hostility directed against such property and, except for the cases provided forin paragraph 5 of Article 8, from any use of such property or its surroundings for military purposes.”) with 1954
HAGUE CULTURAL PROPERTY CONVENTION art. 4(1) (“The High Contracting Parties undertake to respect culturalproperty situated within their own territory as well as within the territory of other High Contracting Parties byrefraining from any use of the property and its immediate surroundings or of the appliances in use for its protection
for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and by refraining
from any act of hostility directed against such property.”).
647

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8(1) (“There may be placed under special protection alimited number of refuges intended to shelter movable cultural property in the event of armed conflict, of centres
containing monuments and other immovable cultural property of very great importance, provided that they: (a) aresituated at an adequate distance from any large industrial centre or from any important military objective
constituting a vulnerable point, such as, for example, an aerodrome, broadcasting station, establishment engaged
upon work of national defence, a port or railway station of relative importance or a main line of communication; (b)are not used for military purposes.”).

648

REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 11 (“1. If,
during an armed conflict, any High Contracting Party is induced by unforeseen circumstances to set up an
improvised refuge and desires that it should be placed under special protection, it shall communicate this fact

305

Property granted special protection must be marked with the distinctive emblem forspecial protection, and opened to international control as provided for in the Regulations for the
Execution of the 1954 Hague Cultural Property Convention. 649
5.18.8.1 Conditions for the Granting of Special Protection – Adequate Distance
From Military Objectives. In order to qualify for special protection, these categories of property
must: (1) be situated an adequate distance from any large industrial center, or from any
important military objective constituting a vulnerable point; and (2) not be used for military
purposes.
The property must be situated at an adequate distance from any large industrial center orfrom any important military objective, such as an airport, railway station, or marshalling yards,
port facilities, key lines of communication, command and control activity, or other defense
facility. 650 The term “adequate distance” is not defined within the 1954 Hague Cultural Property
Convention, but relies upon determinations and actions by the State Party requesting “special
protection” status, and by States Parties in determining whether the distance set forth by therequesting nation is sufficient to support approval of the request.
Immovable cultural property of very great importance adjacent to a military objective
may retain its special protection status provided, in the event of armed conflict, all use of themilitary objective ceases. 651 For example, if the military objective in question is an airport, port
facility, or railway station or marshaling yards, all activity must cease, and military traffic must
be diverted, in order for the site to maintain its protected status.
A refuge for storing and protecting movable cultural property may also be placed under
forthwith to the Commissioner-General accredited to that Party. 2. If the Commissioner-General considers that sucha measure is justified by the circumstances and by the importance of the cultural property sheltered in thisimprovised refuge, he may authorize the High Contracting Party to display on such refuge the distinctive emblem
defined in Article 16 of the Convention. He shall communicate his decision without delay to the delegates of theProtecting Powers who are concerned, each of whom may, within a time-limit of 30 days, order the immediate
withdrawal of the emblem. 3. As soon as such delegates have signified their agreement or if the time-limit of 30days has passed without any of the delegates concerned having made an objection, and if, in the view of theCommissioner-General, the refuge fulfils the conditions laid down in Article 8 of the Convention, theCommissioner-General shall request the Director-General of the United Nations Educational, Scientific and Cultural
Organization to enter the refuge in the Register of Cultural Property under Special Protection.”).
649

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 10 (“During an armed conflict, cultural property under
special protection shall be marked with the distinctive emblem described in Article 16, and shall be open tointernational control as provided for in the Regulations for the execution of the Convention.”).

650

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8(1) (Refuges and centers may only be placed under special
protection if “they: (a) are situated at an adequate distance from any large industrial centre or from any importantmilitary objective constituting a vulnerable point, such as, for example, an aerodrome, broadcasting station,
establishment engaged upon work of national defence, a port or railway station of relative importance or a main lineof communication.”). Refer to § 5.6 (Military Objectives).

651

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8(5) (“If any cultural property mentioned in paragraph 1 ofthe present Article is situated near an important military objective as defined in the said paragraph, it may
nevertheless be placed under special protection if the High Contracting Party asking for that protection undertakes,
in the event of armed conflict, to make no use of the objective and particularly, in the case of a port, railway station
or aerodrome, to divert all traffic therefrom. In that event, such diversion shall be prepared in time of peace.”).

306

special protection, whatever its location, if it is so constructed that, in all probability, it will not
be damaged by bombs. 652
5.18.8.2 Conditions for the Granting of Special Protection – No Use for Military
Purposes. A “center containing monuments” 653 shall be deemed to be used for military purposes
whenever it is used for the movement of military personnel or material, even in transit. The
same shall apply whenever activities directly connected with military operations, the stationingof military personnel, or the production of war material are carried on within the center. 654
The guarding of cultural property under special protection by armed custodians speciallyempowered to do so, or the presence, in the vicinity of such cultural property, of police forces
normally responsible for the maintenance of public order, however, shall not be deemed to be
use for military purposes. 655 Such activities may fulfill the obligation to safeguard culturalproperty, especially against looters. 656 Employment of law enforcement personnel to protect
cultural property is analogous to activities of armed military medical personnel deployed in andaround military medical units and facilities in order to provide security from criminal acts. 657
5.18.8.3 Marking of Cultural Property Under Special Protection. The distinctive
emblem for cultural property is to be displayed three times in a triangular formation to indicate
cultural property under special protection. 658
The emblem shall be visible from the ground: (a) at regular intervals sufficient toindicate clearly the perimeter of a center containing monuments under special protection; and (b)at the entrance to other immovable cultural property under special protection. 659
5.18.8.4 Withdrawal of Special Protection. If a Party to 1954 Hague Cultural
652

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8(2) (“A refuge for movable cultural property may also beplaced under special protection, whatever its location, if it is so constructed that, in all probability, it will not bedamaged by bombs.”).

653

Refer to § 5.18.1.4 (Centers Containing Monuments).

654

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8(3) (“A centre containing monuments shall be deemed to
be used for military purposes whenever it is used for the movement of military personnel or material, even in transit.
The same shall apply whenever activities directly connected with military operations, the stationing of military
personnel, or the production of war material are carried on within the centre.”).

655

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 8(4) (“The guarding of cultural property mentioned inparagraph 1 above by armed custodians specially empowered to do so, or the presence, in the vicinity of such
cultural property, of police forces normally responsible for the maintenance of public order shall not be deemed to
be used for military purposes.”). Compare § 4.23.1 (Police as Civilians).

656

Refer to § 5.18.6.1 (Obligation to Stop or Prevent Theft, Pillage, or Misappropriation of, and Acts of Vandalism
Against, Cultural Property).
657

Refer to § 7.10.3.5 (Use of Weapons in Self-Defense or Defense of the Wounded and Sick).

658

Refer to § 5.18.7.2 (Display of the Distinctive Emblem for Cultural Property – Once Versus Three Times).

659

REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 20(2) (“Theemblem shall be visible from the ground: (a) at regular intervals sufficient to indicate clearly the perimeter of acentre containing monuments under special protection; (b) at the entrance to other immovable cultural property
under special protection.”).

307

Property Convention commits, in respect of any item of cultural property under special
protection, a violation of its obligations to refrain from any act of hostility directed against suchproperty and from use of such property or its surroundings for military purposes, the opposing
Party shall, so long as this violation persists, be released from the obligation to ensure theimmunity of the property concerned. 660 Nevertheless, whenever possible, the latter Party shallfirst request the cessation of such violation within a reasonable time. 661
Apart from violations by the opposing Party, immunity shall be withdrawn from culturalproperty under special protection only in exceptional cases of unavoidable military necessity,and only for such time as that necessity continues. 662 Such necessity can be established only by
an officer commanding a force the equivalent of a division in size or larger. 663 However, suchnecessity should not be construed to impose an unreasonable and disproportionate responsibilityon the attacker to avoid damage to cultural property. 664 Moreover, all property may be attacked
using any lawful and proportionate means if required by military necessity and notwithstanding
possible collateral damage to such property. 665
Whenever circumstances permit, the opposing Party shall be notified, a reasonable timein advance, of the decision to withdraw immunity. 666 The Party withdrawing immunity is also to
notify the Commissioner-General for Cultural Property as soon as possible as provided for in theRegulations for the Execution of the 1954 Hague Cultural Property Convention, in writing,660

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 11(1) (“If one of the High Contracting Parties commits, inrespect of any item of cultural property under special protection, a violation of the obligations under Article 9, theopposing Party shall, so long as this violation persists, be released from the obligation to ensure the immunity of theproperty concerned.”).

661

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 11(1) (“Nevertheless, whenever possible, the latter Party
shall first request the cessation of such violation within a reasonable time.”).

662

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 11(2) (“Apart from the case provided for in paragraph I of
the present Article, immunity shall be withdrawn from cultural property under special protection only in exceptional
cases of unavoidable military necessity, and only for such time as that necessity continues.”).

663

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 11(2) (“Such necessity can be established only by theofficer commanding a force the equivalent of a division in size or larger.”).

664

Section-by-Section Analysis of Provisions, 6, Tab 1 to Strobe Talbot, Letter of Submittal, May 12, 1998,
MESSAGE FROM THE PRESIDENT TRANSMITTING THE 1954 HAGUE CULTURAL PROPERTY CONVENTION 7 (“Due toambiguous modifiers such as those in the Article 11 phrase ‘‘exceptional cases of ‘unavoidable’ military necessity,’’
the provisions may be misconstrued to impose an unreasonable and disproportionate responsibility on the attacker toavoid damage to cultural property. Clarification would help avoid a suggestion that strict compliance with theConvention would mean that any collateral damage would constitute a violation of the Convention.”).
665

See United States, Statement on Ratification of the 1954 Hague Cultural Property Convention, Mar. 13, 2009,
2575 UNTS 7, 8 (“It is the understanding of the United States of America that ‘special protection’, as defined in
Chapter II of the Convention, … allows all property to be attacked using any lawful and proportionate means, if
required by military necessity and notwithstanding possible collateral damage to such property.”).

666

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 11(2) (“Whenever circumstances permit, the opposing
Party shall be notified, a reasonable time in advance, of the decision to withdraw immunity.”).

308

stating the reasons for withdrawing immunity. 667
5.18.9 Transport of Cultural Property. The transport of cultural property may take place:(1) under special protection through procedures provided in the Regulations for the Execution of
the 1954 Hague Cultural Property Convention; and (2) in urgent cases without such procedures.
Additional rules apply to the transport of cultural property in occupied territory. 668
The distinctive emblem for cultural property should be placed on vehicles of transport so
as to be clearly visible in daylight from the air as well as from the ground. 669
5.18.9.1 Transport Under Special Protection. Transport exclusively engaged in
the transfer of cultural property, whether within a territory or to another territory, may, at therequest of the State concerned, take place under special protection in accordance with theconditions specified in the Regulations for the Execution of the 1954 Hague Cultural Property
Convention. 670 No acts of hostility may be directed against transport under special protection. 671
A request for such transport should be addressed to the Commissioner-General for
Cultural Property and should contain all relevant information, including the reason for thetransfer, the approximate number and importance of objects to be transferred, their present
location, the intended destination, the means of transport to be used, the route to be followed, andthe date proposed for transfer. 672 The Commissioner-General for Cultural Property determines
whether such transfer is justified and notifies parties to the conflict concerned of the transfer. 673

667

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 11(3) (“The Party withdrawing immunity shall, as soon as
possible, so inform the Commissioner-General for cultural property provided for in the Regulations for the
execution of the Convention, in writing, stating the reasons.”).

668

Refer to § 11.19 (Protection of Cultural Property During Occupation).

669

REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 20(2)(“However, without prejudice to any possible fuller markings, the emblem shall, in the event of armed conflict andin the cases mentioned in Articles 12 and 13 of the Convention, be placed on vehicles of transport so as to be clearlyvisible in daylight from the air as well as from the ground.”).
670

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 12(1) (“Transport exclusively engaged in the transfer ofcultural property, whether within a territory or to another territory, may, at the request of the High Contracting Party
concerned, take place under special protection in accordance with the conditions specified in the Regulations for the
execution of the Convention.”).

671

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 12(3) (“The High Contracting Parties shall refrain from any
act of hostility directed against transport under special protection.”).

672

REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 17(1) (“Therequest mentioned in paragraph 1 of Article 12 of the Convention shall be addressed to the Commissioner-General
for Cultural Property. It shall mention the reasons on which it is based and specify the approximate number and theimportance of the objects to be transferred, their present location, the location now envisaged, the means of transport
to be used, the route to be followed, the date proposed for the transfer, and any other relevant information.”).
673

REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 17(2) (“If theCommissioner-General, after taking such opinions as he deems fit, considers that such transfer is justified, he shallconsult those delegates of the Protecting Powers who are concerned, on the measures proposed for carrying it out.
Following such consultation, he shall notify the Parties to the conflict concerned of the transfer, including in such
notification all useful information.”).

309

Transport under special protection shall take place under the international supervision
provided for in the Regulations for the Execution of the 1954 Hague Cultural Property
Convention and shall display the distinctive emblem described in Article 16. 674 The distinctive
emblem for cultural property is to be displayed repeated three times in a triangular formation toindicate that the transport occurs under special protection. 675
The transport of cultural property to the territory of another State is subject to additionalrules.

676

5.18.9.2 Transport in Urgent Cases. If a State that is a Party to the 1954 Hague
Cultural Property Convention considers that the safety of certain cultural property requires
transfer, and that the matter is of such urgency that the request procedure to the CommissionerGeneral for Cultural Property cannot be followed, the transport may display the distinctive
emblem for cultural property, provided that a request for transport under special protection has
not already been made and refused. 677 As far as possible, notification of transfer should be madeto the opposing Parties. 678 Nevertheless, transport conveying cultural property to the territory of
another State may not display the distinctive emblem unless immunity has been expressly
granted to it. 679

674

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 12(2) (“Transport under special protection shall take place
under the international supervision provided for in the aforesaid Regulations and shall display the distinctive
emblem described in Article 16.”). See also REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURALPROPERTY CONVENTION art. 17(3) (“The Commission-General shall appoint one or more inspectors, who shallsatisfy themselves that only the property stated in the request is to be transferred and that the transport is to be by theapproved methods and bears the distinctive emblem. The inspector or inspectors shall accompany the property to its
destination.”).
675

Refer to § 5.18.7.2 (Display of the Distinctive Emblem for Cultural Property – Once Versus Three Times).

676

See REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 18 (“(a)[W]hile the cultural property remains on the territory of another State, that State shall be its depositary and shallextend to it as great a measure of care as that which it bestows upon its own cultural property of comparable
importance; (b) the depositary State shall return the property only on the cessation of the conflict; such return shallbe effected within six months from the date on which it was requested; (c) during the various transfer operations,and while it remains on the territory of another State, the cultural property shall be exempt from confiscation andmay not be disposed of either by the depositor or by the depositary. Nevertheless, when the safety of the property
requires it, the depositary may, with the assent of the depositor, have the property transported to the territory of athird country, under the conditions laid down in the present article; (d) the request for special protection shallindicate that the State to whose territory the property is to be transferred accepts the provisions of the present Article[of the Regulations for the Execution of the 1954 Hague Cultural Property Convention].”).

677

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 13(1) (“If a High Contracting Party considers that the safetyof certain cultural property requires its transfer and that the matter is of such urgency that the procedure laid down in
Article 12 cannot be followed, especially at the beginning of an armed conflict, the transport may display thedistinctive emblem described in Article 16, provided that an application for immunity referred to in Article 12 has
not already been made and refused.”).

678

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 13(1) (“As far as possible, notification of transfer should bemade to the opposing Parties.”).

679

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 13(1) (“Nevertheless, transport conveying cultural property
to the territory of another country may not display the distinctive emblem unless immunity has been expressly
granted to it.”).

310

As far as possible, necessary precautions shall be taken to avoid acts of hostility directedagainst transport of cultural property under the protection provided in urgent cases and whiledisplaying the distinctive emblem. 680
5.18.9.3 Immunity From Seizure, Capture, and Prize. Transport of culturalproperty under special protection or under the protection provided in urgent cases is immune
from seizure, placing in prize, or capture. 681 Means of transport exclusively engaged in thetransport of such property is similarly immune. 682 However, such immunity does not limit theright of visit and search of such transportation or property. 683
5.18.10 AP I Provision on the Protection of Objects Which Constitute the Cultural or
Spiritual Heritage of Peoples. Article 53 of AP I provides certain protections to “historicmonuments, works of art or places of worship which constitute the cultural or spiritual heritageof peoples.” 684 This provision has been interpreted in a more limited fashion than its text would
suggest.
For example, based on the statements of national delegations, including the U.S.
delegation, during the negotiations of this provision, it appears that objects that qualify forspecial protection under Article 53 of AP I are substantially those that qualify for special
protection under the 1954 Hague Cultural Property Convention. 685
In addition, protection is waived when an object is used in support of the military effort
or for military purposes. 686 In addition, Canada has interpreted Article 53 to permit waiver of its
680

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 13(2) (“The High Contracting Parties shall take, so far as
possible, the necessary precautions to avoid acts of hostility directed against the transport described in paragraph 1of the present Article and displaying the distinctive emblem.”).

681

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 14(1) (“Immunity from seizure, placing in prize, or capture
shall be granted to: (a) cultural property enjoying the protection provided for in Article 12 or that provided for in
Article 13; (b) the means of transport exclusively engaged in the transfer of such cultural property.”).

682

Compare § 4.9.2.3 (Exclusively Engaged in Humanitarian Duties).

683

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 14(2) (“Nothing in the present Article shall limit the rightof visit and search.”). Refer to § 15.13 (Belligerent Right of Visit and Search of Merchant Vessels).

684

AP I art. 53 (“Without prejudice to the provisions of the Hague Convention for the Protection of Cultural
Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments, it isprohibited: (a) to commit any acts of hostility directed against the historic monuments, works of art or places ofworship which constitute the cultural or spiritual heritage of peoples; (b) to use such objects in support of themilitary effort; (c) to make such objects the object of reprisals.”).
685

BOTHE, PARTSCH, & SOLF, NEW RULES 333 (AP I art. 53, ¶2.5.1) (“In light of this understanding [by the U.S.
delegation], it appears that the objects which qualify for special protection under Art. 53 are substantially thosewhich would qualify for special protection under Art. 8 of the Hague Convention of 1954 without, however,imposing a requirement for the procedural measures required by that Convention to effect such special protection.”).

686

See, e.g., France, Statement on Ratification of AP I, translated in SCHINDLER & TOMAN, THE LAWS OF ARMED
CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 801 (2004) (“TheGovernment of the French Republic declares that if the objects protected by Article 53 are used for military
purposes, they will lose protection which they would otherwise have according to the provisions of the Protocol.”);Ireland, Statement on Ratification of AP I, Nov. 19, 1999, 2073 UNTS 28, 30 (“It is the understanding of Ireland in
relation to the protection of cultural objects in Article 53 that if the objects protected by this Article are unlawfully
used for military purposes they will thereby lose protection from attacks directed against such unlawful military311

obligations when military necessity imperatively requires such waiver. 687
5.19 SIEGES AND ENCIRCLED AREAS
It is lawful to besiege enemy forces. Commanders must seek to make arrangements topermit the passage of certain consignments and should seek to make arrangements for thepassage of certain categories of civilians, and of religious and medical personnel. Different rules
apply to blockade. 688
5.19.1 Siege and Encirclement Permissible. It is lawful to besiege enemy forces, i.e., toencircle them with a view towards inducing their surrender by cutting them off fromreinforcements, supplies, and communications with the outside world. 689 In particular, it ispermissible to seek to starve enemy forces into submission. 690
5.19.1.1 Belligerent Authority to Exercise Control in the Immediate Vicinity of
Military Operations. The conduct of a siege or encirclement may require the imposition of
measures of control to ensure that outsiders may not deliver supplies to enemy forces. Thus, theright to conduct a siege or encirclement impliedly recognizes the authority of the militarycommander to exercise control (e.g., stopping, searching, and diverting traffic) over civilians
and other persons in the immediate vicinity of military operations. For example, commanders
may also impose certain restrictions on neutral vessels or aircraft (such as restricting
communications) within the immediate vicinity of the belligerent’s operations. 691
5.19.2 Removal and Passage of Certain Personnel – Vulnerable Civilians, Diplomatic andConsular Personnel, the Wounded and Sick, and Medical Personnel. Although the commanderof the force laying siege has the right to forbid all communications and access between thebesieged place and the outside, the parties to the conflict should attempt to conclude localuse.”); Italy, Statement on Ratification of AP I, Feb. 27, 1986, 1425 UNTS 438, 439 (“If and so long as theobjectives protected by Article 53 are unlawfully used for military purposes, they will thereby lose protection.”);United Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 77 (“The United Kingdom
declares that if the objects protected by this Article are unlawfully used for military purposes they will thereby lose
protection from attacks directed against such unlawful military uses.”).
687

Canada, Statement on Ratification of AP I, Nov. 20, 1990, 1591 UNTS 462, 465 (“It is the understanding of theGovernment of Canada in relation to Article 53 that: a. Such protection as is afforded by the Article will be lost
during such time as the protected property is used for military purposes, and b. The prohibitions contained insubparagraphs (a) and (b) of this Article can only be waived when military necessity imperatively requires such a
waiver.”).
688

Refer to § 13.10 (Blockade).

689

1956 FM 27-10 (Change No. 1 1976) ¶40 (“Investment, bombardment, assault, and siege have always beenrecognized as legitimate means of land warfare.”). See also 2004 UK MANUAL ¶5.34.1 (“Attacks can be costly incasualties and incidental loss or damage. A more effective method may be to encircle enemy forces, cutting themoff from supplies and communications with the outside world and forcing their surrender. The same is true ofbesieging a town or stronghold. Siege is a legitimate method of warfare as long as it is directed against enemy
armed forces. It would be unlawful to besiege an undefended town since it could be occupied without resistance.”).
690

Refer to § 5.20 (Starvation).

691

Refer to § 13.8 (Belligerent Control of the Immediate Area of Naval Operations); § 14.6 (Belligerent Control ofAviation in the Immediate Vicinity of Hostilities).

312agreements for the removal of wounded, sick, infirm and aged persons, children, and maternity
cases, or for the passage of ministers of all religions, medical personnel, and medical equipmenton their way to such areas. 692 Concluding such agreements is not compulsory. A commander ofan encircling force is not required to agree to the passage of medical or religious personnel,
supplies, and equipment if he or she has legitimate military reasons denying such requests (e.g.,
if denying passage may increase the likelihood of surrender of enemy forces in the encircledarea). Nonetheless, commanders should make reasonable, good-faith efforts to do so whenpossible. 693
Diplomatic and consular personnel of a neutral State should not be prevented fromleaving a besieged place before hostilities commence, but this privilege cannot be claimed while
hostilities are in progress. If diplomatic and consular personnel of a neutral State voluntarily
decide to remain, they are subject to the same risks as other inhabitants. 694
5.19.3 Passage of Relief Consignments. Commanders should make arrangements topermit the free passage of certain consignments:•

all consignments of medical and hospital stores and objects necessary for religious
worship intended only for civilians; and•all consignments of essential foodstuffs, clothing, and tonics (i.e., medicine) intended forchildren under fifteen, expectant mothers, and maternity cases. 695

However, allowing passage of these items is not required by the party controlling the area
unless that party is satisfied that there are no serious reasons for fearing that:•the consignments may be diverted from their destination;

692

GC art. 17 (“The Parties to the conflict shall endeavour to conclude local agreements for the removal frombesieged or encircled areas, of wounded, sick, infirm, and aged persons, children and maternity cases, and for thepassage of ministers of all religions, medical personnel and medical equipment on their way to such areas.”); GWS
art. 15 (“Likewise, local arrangements may be concluded between Parties to the conflict for the removal or exchangeof wounded and sick from a besieged or encircled area, and for the passage of medical and religious personnel andequipment on their way to that area.”); GWS-SEA art. 18 (“Whenever circumstances permit, the Parties to theconflict shall conclude local arrangements for the removal of the wounded and sick by sea from a besieged or
encircled area and for the passage of medical and religious personnel and equipment on their way to that area.”).
693

GC COMMENTARY 139 (“The words ‘The Parties to the conflict shall endeavor’ show that under the Convention
evacuation is not compulsory; belligerents should nevertheless regard this provision as a very strong
recommendation to arrange for evacuation whenever it is in the interest of the civilian population and the militarysituation makes it possible.”).
694

1956 FM 27-10 (Change No. 1 1976) ¶44b (“Diplomatic and consular personnel of a neutral State should not be
prevented from leaving a besieged place before hostilities commence, but this privilege cannot be claimed while
hostilities are in progress. Should they voluntarily decide to remain, they must undergo the same risks as otherinhabitants.”).
695

GC art. 23 (“Each High Contracting Party shall allow the free passage of all consignments of medical andhospital stores and objects necessary for religious worship intended only for civilians of another High Contracting
Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential
foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.”).

313

•

the control may not be effective; or•a definite advantage may accrue to the military efforts or economy of the enemy. 696

5.19.3.1 Technical Arrangements for the Passage and Distribution of Relief
Consignments. Commanders may require, as a condition for allowing the passage ofconsignments listed above, that the consignments be distributed under the local supervision of
the Protecting Powers. 697 Commanders may prescribe other rules and regulations for how
consignments are to be distributed, although consignments should be forwarded as rapidly as
possible. 698
5.19.4 Attacks by Forces Laying Siege. The general rules that apply to conducting
attacks also apply to attacks by forces laying siege. 699
5.19.4.1 Use of Force to Drive Fleeing Civilians Back to Besieged Areas. In thepast, it was permissible, but an extreme measure, to refuse to allow civilians to leave a besieged
locality and to use force to drive any who attempted to flee back to the besieged locality. 700
However, such actions would now be prohibited because they would not be consistent with theduty to take feasible precautions for the protection of civilians. 701 Permitting civilians to flee
may also be militarily advantageous. 702
696

GC art. 23 (“The obligation of a High Contracting Party to allow the free passage of the consignments indicatedin the preceding paragraph is subject to the condition that this Party is satisfied that there are no serious reasons forfearing: (a) that the consignments may be diverted from their destination, (b) that the control may not be effective,or (c) that a definite advantage may accrue to the military efforts or economy of the enemy through the substitutionof the above-mentioned consignments for goods which would otherwise be provided or produced by the enemy orthrough the release of such material, services or facilities as would otherwise be required for the production of such
goods.”).
697

GC art. 23 (“The Power which allows the passage of the consignments indicated in the first paragraph of this
Article may make such permission conditional on the distribution to the persons benefited thereby being made under
the local supervision of the Protecting Powers.”).
698

GC art. 23 (“Such consignments shall be forwarded as rapidly as possible, and the Power which permits their freepassage shall have the right to prescribe the technical arrangements under which such passage is allowed.”).
699

Refer to § 5.4 (Rules on Conducting Assaults, Bombardments, and Other Attacks).

700

See, e.g., United States v. von Leeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE
THE NMT 563 (“Leningrad was encircled and besieged. Its defenders and the civilian population were in greatstraits and it was feared the population would undertake to flee through the German lines. Orders were issued to use
artillery to ‘prevent any such attempt at the greatest possible distance from our own lines by opening fire as early as
possible, so that the infantry, if possible, is spared shooting on civilians.’ … It is said that if the commander of abesieged place expels the noncombatants, in order to lessen the number of those who consume his stock ofprovisions, it is lawful, though an extreme measure, to drive them back so as to hasten the surrender.’ We mightwish the law were otherwise but we must administer it as we find it. Consequently, we hold no criminality attachedon this charge.”).
701

Refer to § 5.2.3 (Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other
Protected Persons and Objects).
702

See ROGERS, LAW ON THE BATTLEFIELD 62 (“In fact, the besieging commander would be better advised to allow
all civilians and the wounded and sick to leave the besieged area. He would then legitimately be able to prevent all
supplies from reaching the enemy forces and bombardment and assault would be considerably eased.”).

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5.19.5 Duties of Forces Under Siege to Take Feasible Precautions to Reduce the Risk of
Incidental Harm. Besieged forces should take feasible precautions to reduce the risk ofincidental harm. 703 For example, it may be appropriate to mark protected buildings to indicate
their protected status to enemy forces. 704 Similarly, it may be appropriate to concentrate thewounded and sick and civilians in areas remote from military objectives 705 or in areas neutralized
by arrangement with the enemy. 706
5.20 STARVATION
Starvation is a legitimate method of warfare, but it must be conducted in accordance withthe principles of distinction and proportionality, as well as other law of war rules. Starvation ofcivilians as a method of combat is also prohibited in non-international armed conflict. 707
5.20.1 Starvation – Distinction. It is a legitimate method of war to starve enemy
forces. 708 For example, it is permitted to destroy food intended as sustenance for enemy forces
with a view towards weakening them and diverting their resources. 709 Enemy forces, for the
purpose of this rule, means those persons constituting military objectives. 710
Starvation specifically directed against the enemy civilian population, however, isprohibited. 711 For example, it would be prohibited to destroy food or water supplies for the
purpose of denying sustenance to the civilian population.
703

Refer to § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party
Subject to Attack).
704

Refer to § 5.14.4 (Using Distinctive and Visible Signs to Identify Protected Persons and Objects as Such).

705

Refer to § 5.14.2 (Removing Civilians and Civilian Objects From the Vicinity of Military Objectives).

706

Refer to § 5.14.3 (Establishing Areas Where Civilians or the Wounded and Sick Are Protected).

707

Refer to § 17.9.2 (Prohibition on Starvation of Civilians as a Method of Combat).

708

See LIEBER CODE art. 17 (“It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the
speedier subjection of the enemy.”). Consider AP I art. 54(3) (“The prohibitions in paragraph 2 shall not apply tosuch of the objects covered by it as are used by an adverse Party: (a) As sustenance solely for the members of its
armed forces; or (b) If not as sustenance, then in direct support of military action, provided, however, that in no
event shall actions against these objects be taken which may be expected to leave the civilian population with suchinadequate food or water as to cause its starvation or force its movement.”).
709

For example, Department of the Air Force, Headquarters Pacific Air Forces, Directorate of Operations Analysis,
Project CHECO [Contemporary Historical Examination of Current Operations] Report, “Ranch Hand: Herbicide
Operations in SEA [Southeast Asia]” 19 (Jul. 13, 1971) (“The enemy documents revealed that the VC [Viet Cong]
had suffered serious personnel losses due to the lack of food. Troops normally used in fighting had to be detailed tocrop raising, and in one case the 95th North Vietnamese Army (NVA) regiment had to fast for one or two days on
several occasions due to a lack of food. The overall conclusion of the PACOM report was that crop destruction was‘an integral, essential and effective part of the total effort in South Vietnam.’”).
710

Refer to § 5.6.2 (Persons Who Are Military Objectives).

711

See J. Fred Buzhardt, General Counsel, Department of Defense, Letter to Chairman Fulbright, Senate Committee
on Foreign Relations, Apr. 5, 1971, 10 INTERNATIONAL LEGAL MATERIALS 1300, 1302 (1971) (“But an attack by
any means against crops intended solely for consumption by noncombatants not contributing to the enemy’s war
effort would be unlawful for such would not be an attack upon a legitimate military objective.”). Consider AP I art.
54(1) (“Starvation of civilians as a method of warfare is prohibited.”).

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5.20.2 Starvation – Proportionality. Military action intended to starve enemy forces,
however, must not be taken where it is expected to result in incidental harm to the civilian
population that is excessive in relation to the military advantage anticipated to be gained. 712
Feasible precautions to reduce the risk of harm to the civilian population or otherreasonable measures to mitigate the burden to the civilian population may also be warranted
when seeking to starve enemy forces. 713 For example, it may be appropriate to seek tocompensate civilians whose food has been inadvertently destroyed. 714 Moreover, an Occupying
Power would have additional duties to ensure food and water for the civilian population. 715
5.20.3 Starvation and Other Law of War Rules. Starvation as a method of warfare mustcomply with other applicable law of war rules. For example, it would be unlawful to poison
food or water. 716 Additionally, starvation, for example, may involve sieges or encirclement,
blockades, attacks, or the seizure and destruction of enemy property. 717 In each case, the rules
applicable to those situations must be followed.
5.20.4 AP I Provision on Objects Indispensable to the Survival of the Civilian
Population. Article 54(2) of AP I makes it prohibited for Parties to AP I “to attack, destroy,
remove or render useless objects indispensable to the survival of the enemy civilian population,such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking
water installations, and supplies for irrigation works, for the specific purpose of denying them fortheir sustenance value to the civilian population or to the adverse party, whatever the motive,

712

Cf. J. Fred Buzhardt, General Counsel, Department of Defense, Letter to Chairman Fulbright, Senate Committee
on Foreign Relations, Apr. 5, 1971, 10 INTERNATIONAL LEGAL MATERIALS 1300, 1302 (1971) (“Where it cannot be
determined whether crops were intended solely for consumption by the enemy’s armed forces, crop destruction
would be lawful if a reasonable inquiry indicated that the intended destruction is justified by military necessity under
the principles of Hague Regulation Article 23(g), and that the devastation occasioned is not disproportionate to themilitary advantage gained.”).
713

Refer to § 5.2.3 (Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other
Protected Persons and Objects).
714
For example, Department of State, Telegram From the Department of State to the Embassy in Vietnam,
Washington, May 7, 1963, reprinted in III FOREIGN RELATIONS OF THE UNITED STATES, 1961–1963, VIETNAM,JANUARY–AUGUST 1963, DOCUMENT 110, p. 275 (“All herbicide operations [including crop destruction] to beundertaken only after it is clear both PsyWar preparations and compensation and relief machinery [for peasants
whose crops are inadvertently destroyed] are adequate. Would appear GVN [Government of Vietnam] should
increase compensation efforts.”); Memorandum Prepared in the Department of State, Chemical Defoliation andCrop Destruction in South Viet-Nam, Washington, Apr. 18, 1963, reprinted in III FOREIGN RELATIONS OF THE
UNITED STATES, 1961–1963, VIETNAM, JANUARY–AUGUST 1963, DOCUMENT 96, pp. 240 (“The GVN [Governmentof Vietnam] has set up a mechanism for compensating peasants whose crops are inadvertently destroyed. We do nothave much information on the results of the compensation program, but there are indications that it was notadequately carried out, in part because of security difficulties.”).
715

Refer to § 11.14 (Food and Medical Supplies for the Civilian Population).

716

Refer to § 6.8 (Poison).

717

Refer to § 5.19 (Sieges and Encircled Areas); § 13.10 (Blockade); § 5.4 (Rules on Conducting Assaults,
Bombardments, and Other Attacks); § 5.17 (Seizure and Destruction of Enemy Property).

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whether in order to starve out civilians, cause them to move away, or for any other motive.” 718
This rule would not apply to attacks that are carried out for specific purposes other thanto deny sustenance. 719 For example, this rule would not prohibit destroying a field of crops toprevent it from being used as concealment by the enemy or destroying a supply route that is used
to move military supplies but is also used to supply the civilian population with food. 720
Similarly, this AP I prohibition does not apply to objects that would otherwise be coveredby it if those objects are used by an adverse party “as sustenance solely for the members of its
armed forces” or “if not as sustenance, then in direct support of military action.” 721 Actions
against this latter category of objects forfeiting protection, however, may not be taken if they“may be expected to leave the civilian population with such inadequate food or water as to cause
its starvation or force its movement.” 722
Further exception is made for a State to engage in a “scorched earth” defense of a party’s
own territory. 723
When adopted, this AP I prohibition was novel and the product of extensive diplomaticnegotiation. Given the intricacy of this provision of AP I, it would be difficult to conclude that
all of its particulars reflect customary international law. Nonetheless, the United States has
supported the underlying principle that starvation of civilians may not be used as a method of718

AP I art. 54(2).

719

See, e.g., APPENDIX TO 1985 CJCS MEMO ON AP I 56 (The restrictions of Article 54(2) “do not apply to attacks
that are not for the specific purpose of denying sustenance;”); United Kingdom, Statement on Ratification of AP I,
Jan. 28, 1998, 2020 UNTS 75, 77 (Article 54(2) of AP I “has no application to attacks that are carried out for a
specific purpose other than denying sustenance to the civilian population or the adverse party.”).
720

2004 UK MANUAL ¶5.27.2 (“The law is not violated if military operations are not intended to cause starvation but
have that incidental effect, for example, by cutting off enemy supply routes which are also used for thetransportation of food, or if civilians through fear of military operations abandon agricultural land or are notprepared to risk bringing food supplies into areas where fighting is going on.”); BOTHE, PARTSCH, & SOLF, NEW
RULES 339 (AP I art. 54, ¶2.3) (“This paragraph does not prohibit the incidental distress of civilians resulting fromotherwise lawful military operations. It would not, for example, be unlawful to attack or destroy a railroad line
simply because the railroad was used to transport food needed to supply the population of a city, if the railroad wasotherwise a military objective under Art. 52 [of AP I].”).
721

AP I art. 54(3) (“The prohibitions in paragraph 2 shall not apply to such of the objects covered by it as are usedby an adverse Party: (a) As sustenance solely for the members of its armed forces; or (b) If not as sustenance, thenin direct support of military action, provided, however, that in no event shall actions against these objects be taken
which may be expected to leave the civilian population with such inadequate food or water as to cause its starvationor force its movement.”).
722

AP I art. 54(3) (“The prohibitions in paragraph 2 shall not apply to such of the objects covered by it as are usedby an adverse Party: … (b) If not as sustenance, then in direct support of military action, provided, however, that in
no event shall actions against these objects be taken which may be expected to leave the civilian population withsuch inadequate food or water as to cause its starvation or force its movement.”).
723
AP I art. 54(5) (“In recognition of the vital requirements of any Party to the conflict in the defence of its national
territory against invasion, derogation from the prohibitions contained in paragraph 2 may be made by a Party to theconflict within such territory under its own control where required by imperative military necessity.”).

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warfare, as discussed in the sub-sections above. 724
5.21 OVERVIEW OF GOOD FAITH, PERFIDY, AND RUSES
Absolute good faith with the enemy must be observed as a rule of conduct. 725 The line
between those deceptions that good faith permits and those that good faith prohibits may appear
indistinct and has varied according to State practice. 726 Good faith prohibits:•

killing or wounding enemy persons by resort to perfidy; 727•

misusing certain signs; 728•

fighting in the enemy’s uniform; 729•

feigning non-hostile relations in order to seek a military advantage; 730 and•compelling nationals of a hostile party to take part in the operations of war directedagainst their own country. 731

However, good faith permits:•ruses of war or other lawful deceptive activities; 732

724

Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on the
Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the
Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 426 (1987) (“Wesupport the principle that starvation of civilians not be used as a method of warfare, and subject to the requirementsof imperative military necessity, that impartial relief actions necessary for the survival of the civilian population bepermitted and encouraged. These principles can be found, though in a somewhat different form, in articles 54 and70.”).
725
1956 FM 27-10 (Change No. 1 1976) ¶49 (“Absolute good faith with the enemy must be observed as a rule ofconduct; but this does not prevent measures such as using spies and secret agents, encouraging defection or
insurrection among the enemy civilian population, corrupting enemy civilians or soldiers by bribes, or inducing theenemy’s soldiers to desert, surrender, or rebel.”).
726

1958 UK MANUAL ¶310 (“The borderline between legitimate ruses and forbidden treachery has varied at
different times, and it is difficult to lay down hard and fast rules in the matter. Many of the doubtful cases, however,which arose at a time when, from the nature of their weapons, troops could only engage at close range, can now
seldom or never occur.”).

727

Refer to § 5.22 (Treachery or Perfidy Used to Kill or Wound).

728

Refer to § 5.24 (Improper Use of Certain Signs).

729

Refer to § 5.23 (Use of Enemy Flags, Insignia, and Military Uniforms).

730

Refer to § 12.2 (Principle of Good Faith in Non-Hostile Relations).

731

Refer to § 5.27 (Prohibition Against Compelling Enemy Nationals to Take Part in the Operations of War Directed
Against Their Own Country).
732

Refer to § 5.25 (Ruses of War and Other Lawful Deceptions).

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•

intelligence collection; 733•

military information support operations, including propaganda; 734 and•certain types of bribery. 735

5.21.1 Harms From Breaches of Good Faith. Breaches of good faith may: (1) undermine
the protections afforded by the law of war to classes of persons and objects; (2) impair nonhostile relations between opposing belligerents; and (3) damage the basis for the restoration ofpeace short of complete annihilation of one belligerent by another.
Breaches of good faith, principally perfidious conduct, may undermine the protections
afforded by the law of war to civilians, persons who are hors de combat, or certain other classesof persons and objects. 736
Breaches of good faith also impair other non-hostile relations between opposing
belligerents during the war. For example, such breaches may diminish the legitimate activities
that depend upon a degree of mutual respect and trust between hostile forces, such as effecting
surrender or collection of the dead, wounded, or sick (enemy or friendly force) on the battlefield.
It also may make it more difficult for military commanders to ensure that their forces comply
with the law of war where treacherous acts by the enemy have resulted in casualties among theirown forces.
Breaches of good faith also damage, and may destroy, the basis for restoration of peace
short of the complete annihilation of one belligerent by another. 737 A degree of mutual respect
and trust is essential for the negotiation of cease-fires, truces, surrenders, and other agreements
necessary to bring an end to hostilities.
5.22 TREACHERY OR PERFIDY USED TO KILL OR WOUND
During international armed conflict, it is prohibited to kill or wound the enemy by resort
to perfidy. 738
733

Refer to § 5.26.1 (Propaganda).

734

Refer to § 5.26.2 (Information Gathering).

735

Refer to § 5.26.3 (Bribery or Offering of Rewards).

736

BOTHE, PARTSCH, & SOLF, NEW RULES 202 (AP I art. 37, ¶2.1) (“Combatants, in practice, find it difficult torespect protected persons and objects if experience causes them to believe or suspect that their adversaries are
abusing their claim to protection under the rules of international law applicable in armed conflict in order to achievea military advantage. The prohibitions of perfidy are thus directly related to protection for the wounded and sick,hors de combat combatants, prisoners of war and civilians.”). See also footnote 164, § 4.6.4 (Having a FixedDistinctive Sign Recognizable at a Distance).
737

1956 FM 27-10 (Change No. 1 1976) ¶50 (“Treacherous or perfidious conduct in war is forbidden because it
destroys the basis for a restoration of peace short of the complete annihilation of one belligerent by the other.”).
738

HAGUE IV REG. art. 23(b) (It is especially forbidden “[t]o kill or wound treacherously individuals belonging to
the hostile nation or army”); LIEBER Code art. 101 (noting that “the common law of war allows even capital
punishment for clandestine or treacherous attempts to injure an enemy”). Consider ROME STATUTE art. 8(2)(b)(xi)

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5.22.1 Definition of Perfidy. Acts of perfidy are acts that invite the confidence of enemy
persons to lead them to believe that they are entitled to, or are obliged to accord, protection under
the law of war, with intent to betray that confidence. 739
The key element in perfidy is the false claim to protections under the law of war in order
to secure a military advantage over the opponent. 740 The claim must be to legal protections. 741
5.22.1.1 Perfidy and Treachery – Notes on Terminology. “Treachery” and“perfidy” have been used interchangeably. 742 Article 23(b) of the Hague IV Regulations uses theword “treacherously,” which was also used in Article 13(b) of the 1874 Brussels Declaration. 743
Sometimes, “perfidy” is used to refer to conduct that is, by definition, prohibited. 744
Other times, as, for example, in AP I, “perfidy” is used to refer to a certain type of deception,
which might not, by itself, be prohibited (e.g., feigning death would not be prohibited in order tofacilitate escape). 745 It will be important to examine closely the context to determine whichusage is intended. This manual generally uses “perfidy” in the latter sense.
5.22.2 Perfidy - “Kill or Wound”. It is prohibited to use perfidy to kill or wound theenemy. It may not be prohibited to invite the confidence of the adversary that he or she is
obligated to accord protection under the law of war, for certain purposes (e.g., to facilitate(defining war crimes in international armed conflict to include “[k]illing or wounding treacherously individuals
belonging to the hostile nation or army”).
739

Consider AP I art. 37(1) (“Acts 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 tobetray that confidence, shall constitute perfidy.”); APPENDIX TO 1985 CJCS MEMO ON AP I 26 (“Rather than‘treachery,’ paragraph 1 of Article 37 uses the modern term ‘perfidy,’ and defines it as ‘acts inviting the confidenceof an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules ofinternational law applicable in armed conflict, with the intent to betray that confidence.’ This definition, and theexamples provided, are an accurate and helpful clarification of existing law.”).
740

ICRC AP COMMENTARY 435 (¶1500) (“The central element of the definition of perfidy is the deliberate claim tolegal protection for hostile purposes.”).
741

BOTHE, PARTSCH, & SOLF, NEW RULES 204-05 (AP I art. 37, ¶2.4.2) (“The ICRC draft of the article referred to‘confidence’ without elaborating that confidence must be based on a norm of international law. It would have
involved confidence in moral obligations as well as in binding legal obligations. This was considered to be overly
abstract and ambiguous by delegations representing several regional groups.”).

742

For example, XV OFFICIAL RECORDS OF THE CDDH 99 (CDDH/III/SR.47 ¶78) (“Mr. Reed (United States ofAmerica) said that article 35, paragraph 1, was a reaffirmation and development of Article 23 b) of The Hague
Regulations respecting the Laws and Customs of War on Land annexed to The Hague Convention No. IV of 1907
concerning the Laws and Customs of War on Land. The word ‘treacherously’ in Article 23 b) was synonymouswith ‘perfidy’ in article 35 of draft Protocol I.”).
743

SPAIGHT, WAR RIGHTS ON LAND 86 (“The word ‘Treachery’ in Article XXIII(b) seems hardly applicable to an
enemy’s act, and one of the Brussels delegates proposed to substitute ‘perfidy’ for it. The original word was,however, retained, as being the equivalent of the German Meuchelmord (‘murder by treachery’)”).

744

1956 FM 27-10 (Change No. 1 1976) ¶50 (providing that “[t]reacherous or perfidious conduct in war isforbidden”).
745

BOTHE, PARTSCH, & SOLF, NEW RULES 203 (AP I art. 37, ¶2.4) (“It should be noted that Art. 37 [of AP I] does
not prohibit perfidy per se, although the term is defined with precision.”).

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spying, sabotage, capturing enemy personnel, or evading enemy forces). However, suchdeception may not rely on certain signs and symbols. 746 Moreover, persons who use perfidy toengage in spying and sabotage may forfeit POW status or be liable to certain penalties under thedomestic law of enemy States. 747
5.22.2.1 AP I Prohibition on “Capture” by Resort to Perfidy. In addition tokilling or wounding, Article 37 of AP I prohibits “capture” by resort to perfidy. The Departmentof Defense has not interpreted customary international law to prohibit U.S. forces from seeking
to capture by resort to perfidy.
5.22.3 Examples of Killing or Wounding by Resort to Perfidy. Examples of killing or
wounding by resort to perfidy include:•

feigning an intent to negotiate under a flag of truce and then attacking, 748 which takes
advantage of the rule that flags of truce may not be used to shield military operations. 749•

feigning surrender and then attacking, 750 which takes advantage of the rule that theenemy may not attack those who have surrendered; 751•

feigning of death or incapacitation by wounds or sickness 752 and then attacking, whichtakes advantage of the respect afforded the dead753 or the protection afforded those whoare hors de combat; 754•

feigning civilian status and then attacking; 755 and746

Refer to § 5.24 (Improper Use of Certain Signs).

747

Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).

748

For example, William Gerald Downey, The Law of War and Military Necessity, 47 AJIL 251, 260 (1953) (“Agood example of the use of deception which involved a breach of good faith is one that happened in this writer’spresence during the Battle of Metz in 1944. At that time the German forces held several forts south and east ofMetz. One November morning, just as our attack was getting under way, a German unit of some 20 men came outof one of the forts under a white flag. The American battalion commander gave the order to cease fire, and theGermans marched under the protection of the white flag down the road toward our lines. As they came abreast of alarge bunker they pulled down their white flag, ran into the bunker and immediately opened fire on our positions.”).
749

Refer to § 5.24.7 (Flags of Truce).

750

See FINAL REPORT ON THE PERSIAN GULF WAR 621 (“During the same battle, an Iraqi officer approached
Coalition forces with his hands in the air, indicating his intention to surrender. When near his would-be captors, hedrew a concealed pistol from his boot, fired, and was killed during the combat that followed.”).
751

Refer to § 5.9.3 (Persons Who Have Surrendered).

752

1958 UK MANUAL ¶115 note 2 (“For instance, it would be treachery for a soldier to sham wounded or dead andthen to attack enemy soldiers who approached him without hostile intent, or to pretend he had surrendered andafterwards to open fire upon or attack an enemy who was treating him as hors de combat or a prisoner.).

753

Refer to § 7.7 (Treatment and Handling of Enemy Military Dead).

754

Refer to § 5.9.4 (Persons Rendered Unconscious or Otherwise Incapacitated by Wounds, Sickness, orShipwreck).
755

Refer to § 5.4.8 (Obligation of Combatants to Distinguish Themselves When Conducting Attacks).

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•

calling out “do not fire; we are friends” and then attacking. 756

5.23 USE OF ENEMY FLAGS, INSIGNIA, AND MILITARY UNIFORMS
During international armed conflict, improper use of enemy flags, military emblems,
insignia, or uniforms, is prohibited. 757
5.23.1 Improper Use of Enemy Flags, Insignia, and Military Uniforms Prohibited. In
general, the use of enemy flags, insignia, and military uniforms is prohibited during combat, butis permissible outside of combat. 758
A similar rule is applied during naval operations. 759
5.23.1.1 Improper Use of Enemy Uniforms and “Perfidy”. The prohibition on theuse of enemy uniforms in combat has been described as a prohibition against using enemy
uniforms to kill or wound treacherously. 760 However, feigning enemy military status is nottechnically “perfidy” as the term is used in this manual because perfidy requires the feigning ofprotected status, and the law of war generally does not protect enemy military personnel frombeing made the object of attack. 761
5.23.1.2 Use of Enemy Uniforms and Other Equipment Without the Intent to
Deceive. Uses of enemy uniforms and other equipment without any intention to deceive theenemy are not prohibited. For example, if there is a shortage of clothing it may be necessary touse enemy uniforms. 762 Similarly, the immediate use of captured enemy weapons or equipment7562004 UK MANUAL ¶5.9 footnote 35 (“Examples of treachery included calling out ‘Do no fire, we are friends’ andthen firing at enemy troops who had lowered their guard, especially if coupled with the wearing of enemy uniforms
or civilian clothing;”); 1958 UK MANUAL ¶311 note 1 (giving as an example of treacherous killing or wounding“calling out ‘Do not fire, we are friends’, and then firing” which “is often accompanied by the use of enemy
uniforms or civilian clothing”); 1914 1914 RULES OF LAND WARFARE ¶178 note 1 (“It would be treacherous to callout, ‘Do not fire; we are friends,’ and then fire a volley.”).
757

HAGUE IV REG. art. 23(f) (making it especially forbidden “[t]o make improper use … of the national flag, or of
the military insignia and uniform of the enemy,”).
758

APPENDIX TO 1985 CJCS MEMO ON AP I 28 (“Existing international law prohibits ‘improper’ use of the enemy
uniform or insignia. The United States interprets this rule to prohibit their use in combat, but not in situations
preceding or following combat.”); 1956 FM 27-10 (Change No. 1 1976) ¶54 (“It is certainly forbidden to employ[national flags, insignia, and uniforms] during combat, but their use at other times is not forbidden.”).

759

Refer to § 13.13.1 (Belligerent Warship’s Use of False Colors and Other Disguises).

760

For example, Trial of Otto Skorzeny and Others, IX U.N. LAW REPORTS 90 (General Military Government Courtof the U.S. Zone of Germany, Aug. 18-Sept. 9, 1947) (“The ten accused involved in this trial were all officers in the150th Panzer Brigade commanded by the accused Skorzeny. They were charged with participating in the improperuse of American uniforms by entering into combat disguised therewith and treacherously firing upon and killing
members of the armed forces of the United States.”).

761

Refer to § 5.22.1 (Definition of Perfidy).

762

See 1958 UK MANUAL ¶322 (“If, owing to shortage of clothing, it becomes necessary to utilise apparel captured
from the enemy, the badges should be removed before the articles are worn.”); 1958 UK MANUAL ¶322 note 1(“Articles of uniform which are distinctive of a particular army—such as the beret of the French Chasseurs desAlpes or the coloured berets of certain British troops, the kilt of some regiments, or the Turkish fez—should not be
used except in cases of absolute necessity.”).

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during combat is permissible. When circumstances permit, however, enemy insignia should
generally be removed or alternative measures taken to distinguish U.S. forces from the enemy. 763
5.23.1.3 Deceptive Use of Enemy Flags, Insignia, and Military Uniforms Outsideof Combat. It is a legitimate ruse to use enemy flags, insignia, and military uniforms outside ofcombat. 764
5.23.1.4 Use of Enemy Uniforms to Evade Capture or Escape. Military
personnel, such as aircrew downed behind enemy lines, may use enemy uniforms to evadecapture. Similarly, escaping prisoners of war may use enemy military uniforms to facilitate theirescape from a POW camp to return to friendly lines. 765
However, those using enemy uniforms to evade capture or escape must not engage incombat while in the enemy’s uniform, and, if they are not escaping POWs, they may be liable totreatment as spies and saboteurs if caught behind enemy lines. 766
5.23.1.5 Use of Enemy Codes, Passwords, and Countersigns Not Restricted. The
prohibition on misuse of enemy flags, insignia, and military uniforms refers only to concrete
visual objects, rather than enemy codes, passwords, and countersigns. 767 Enemy codes,
passwords, and countersigns may be used as a ruse to aid military operations. 768 Enemy use of
these measures is permissible because military forces are expected to take measures to guard
against the use of their codes, passwords, and countersigns by the enemy.
5.23.2 Persons Using Enemy Uniforms May Be Liable to Treatment as Spies and
Saboteurs. Although the use of enemy uniforms outside of combat generally is neither
prohibited by the customary law of war nor by law of war treaties to which the United States is a
Party, combatants captured by an opposing party behind the opposing party’s lines while wearing
763

See LIEBER CODE art. 64 (“If American troops capture a train containing uniforms of the enemy, and thecommander considers it advisable to distribute them for use among his men, some striking mark or sign must be
adopted to distinguish the American soldier from the enemy.”).

764

For example, 1958 UK MANUAL ¶320 note 3 (“During the Second World War the German intelligence service inBelgium used German soldiers disguised as British airmen ‘to discover the attitude of the Belgian population
towards individual British airmen landing in Belgium. The operation was completely successful. Active assistance
was rendered by an organised network which was uncovered. The mass of the population was not involved’.
(Extract from a captured German teleprint dated 9th January, 1943.) It would seem that this use of enemy uniform
outside of battle operations is a legitimate ruse.”).

765

Refer to § 9.25.2.3 (Disciplinary Punishment for Certain Offenses Committed in Connection With Escape).

766

Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).

767

Cf. BOTHE, PARTSCH, & SOLF, NEW RULES 214 (AP I art. 29, ¶2.3.3) (“The term ‘emblem, insignia, or uniforms’[in AP I art. 39(2)] refers only to concrete visual objects, including the national symbols marked on military vehicles
and aircraft. This prohibition does not apply to the ruse of using the adversary’s codes, passwords and countersigns
to aid military operations.”).
768

See, e.g., BOTHE, PARTSCH, & SOLF, NEW RULES 207 footnote 25 (AP I art. 37, ¶2.5) (“It would be a legitimate
ruse to use the electronic transponder aboard a combatant aircraft to respond with the code used for identifying
friendly aircraft,”); SPAIGHT, AIR POWER AND WAR RIGHTS 176 (“The greatly developed use of wireless telephonyafforded opportunities for deception of which the airmen were not slow to avail themselves. The feigning of orders
to enemy machines to return to their base, for instance, was a common ruse.”).

323

the uniform of the opposing party may be liable to treatment as spies and saboteurs. 769
5.23.3 AP I and the Use of Enemy Flags, Insignia, or Uniforms to Shield, Favor, Protect,or Impede Military Operations. In addition to prohibiting the use of enemy uniforms while
engaging in attacks, AP I also prohibits the use of flags, military emblems, insignia, or uniformsof an enemy in order to shield, favor, protect, or impede military operations. 770 Canada hastaken a reservation from this rule. 771
This provision of AP I is unclear as to what uses would be permissible and what uses
would be prohibited. 772 However, because the United States is not a Party to AP I and because
the rule is not part of customary international law, U.S. military personnel are not subject to thismore restrictive rule.
5.24 IMPROPER USE OF CERTAIN SIGNS
Certain signs, symbols, or signals reflect a status that receives special protection under
the law of war, and thus these signs may not be improperly used. They may not be used: (1)while engaging in attacks; (2) in order to shield, favor, or protect one’s own military operations;or (3) to impede enemy military operations. Thus, their use may be improper even when that use
does not involve killing or wounding, and they may not be used to facilitate espionage (except
for signs, emblems, or uniforms of a neutral or non-belligerent State). The following types ofsigns are subject to this broader rule against improper use:
5.24.1 Signs, Emblems, or Uniforms of a Neutral or Non-Belligerent State. During
international armed conflict, the use of signs, emblems, or uniforms of a neutral or other nation
not a party to the conflict is prohibited. 773
However, recognized exceptions exist concerning espionage 774 and warfare at sea. 775

769

Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).

770

AP I art. 39(2) (“It is prohibited to make use of the flags or military emblems, insignia or uniforms of adverse
Parties while engaging in attacks or in order to shield, favour, protect or impede military operations.”).
771

Canada, Statement on Ratification of AP I, Nov. 20, 1990, 1591 UNTS 462, 463 (“The Government of Canada
does not intend to be bound by the prohibitions contained in paragraph 2 of Article 39 to make use of military
emblems, insignia or uniforms of adverse parties in order to shield, favour, protect or impede military operations.”).
772

BOTHE, PARTSCH, & SOLF, NEW RULES 214 (AP I art. 39, ¶2.3) (Article 39(2) of AP I “suggests that some uses[of the enemy uniform] are not breaches of the Protocol, but the boundary between forbidden and permissible uses is
not very distinct.”).

773

Consider AP I art. 39(1) (“It is prohibited to make use in an armed conflict of the flags or military emblems,
insignia or uniforms of neutral or other States not Parties to the conflict.”); AP I art. 37(1)(d) (giving as an example
of perfidy the feigning of protected status by the use of signs, emblems or uniforms “of neutral or other States not
Parties to the conflict.”); BOTHE, PARTSCH, & SOLF, NEW RULES 213 (AP I art. 39, ¶2.2) (“The purpose behind therule is to avoid escalation of armed conflict to neutral countries in the mistaken belief that the neutral State hadabandoned its neutrality.”).
774

See SPAIGHT, WAR RIGHTS ON LAND 203-04 (“The spy in modern war is usually a soldier who dons civilian
dress, or the uniform of the enemy, or of a neutral country; and in all these cases, he would be liable to punishment,
apart from this article, for assuming a disguise to further a hostile act.”). Although Article 37(1)(d) of AP I lists324

5.24.2 Distinctive Emblems of the Geneva Conventions (e.g., Red Cross). The
distinctive emblems of the red cross, red crescent, and red crystal are symbols that identify
military medical and religious personnel, medical units, and medical transports, or certain othercategories of persons engaged in humanitarian work as personnel and objects entitled to special
protection. 776 These emblems may not be used except to identify these protected persons andobjects. 777
5.24.3 Markings for POW or Civilian Internee Camps. Only POW camps under the
GPW should be marked using internationally agreed symbols, such as the PW or PG
designation. 778
Only civilian internee camps under the GC should be marked with an IC designation. 779
5.24.4 Markings for Hospital, Safety, or Neutralized Zones. Markings that distinguishhospital or safety zones or neutralized zones established under the 1949 Geneva Conventions
may not be used for other purposes. 780
5.24.5 Distinctive and Visible Signs to Identify Civilian Objects as Such. Certain
distinctive and visible signs that are intended to identify that an object is protected as a civilian
object under the law of war must not be used for other purposes. 781
5.24.6 Markings for Cultural Property. The distinctive emblem for cultural property may
not be used for other purposes. 782
5.24.7 Flags of Truce. The improper use of a flag of truce is strictly prohibited. 783“[t]he feigning of protected status by the use of signs, emblems or uniforms ... of neutral or other States not Parties
to the conflict” as an example of perfidy, and Article 39(1) prohibits the “use in an armed conflict of the flags or
military emblems, insignia or uniforms of neutral or other States not Parties to the conflict,” Article 39(3) of AP I
clarifies that “[n]othing in this Article or in Article 37, paragraph 1 (d), shall affect the existing generally recognizedrules of international law applicable to espionage ... .”775

APPENDIX TO 1985 CJCS MEMO ON AP I 28 (“Article 39, paragraph 1, of the Protocol prohibits the use of neutral
flags, uniforms or emblems in armed conflict. This is already a rule of customary law, to which recognizedexceptions exists governing espionage and warfare at sea. The exceptions are preserved by paragraph 3 of the
Article.”). Refer to § 13.13.1 (Belligerent Warship’s Use of False Colors and Other Disguises).
776

Refer to § 7.15 (Display of the Distinctive Emblem to Facilitate Identification).

777

Refer to § 7.15.4 (Prohibitions on Unauthorized Uses of the Distinctive Emblem).

778

Refer to § 9.11.4.3 (Marking of POW Camps).

779

Refer to § 10.11.1.3 (Marking of Internment Camps).

780

Refer to § 5.14.3 (Establishing Areas Where Civilians or the Wounded and Sick Are Protected).

781

Refer to § 5.14.4 (Using Distinctive and Visible Signs to Identify Protected Persons and Objects as Such).

782

Refer to § 5.18.7.4 (Other Uses of the Distinctive Emblem for Cultural Property Prohibited During Armed
Conflict).
783

Refer to § 12.4.2.1 (Prohibition on Improper Use of the Flag of Truce).

325

5.25 RUSES OF WAR AND OTHER LAWFUL DECEPTIONS
Ruses of war are considered permissible. 784 In general, a belligerent may resort to thosemeasures for mystifying or misleading the enemy against which the enemy ought to takemeasures to protect itself. 785 Apart from ruses of war, certain other deceptions are notprohibited, but may expose combatants employing them to liability as spies and saboteurs.
5.25.1 Definition of Ruses of War. Ruses of war are acts that are intended to mislead an
adversary or to induce him to act recklessly, but that do not infringe upon any rule ofinternational law applicable in armed conflict and that are not perfidious because they do notinvite the confidence of an adversary with respect to protection under that law. 786
Ruses of war are methods, resources, and techniques that can be used either to convey
false information or deny information to opposing forces. They can include physical, technical,
or administrative means, such as electronic warfare measures, flares, smoke, chaff, aerosol
material, or dissemination devices.
5.25.1.1 Acts That Are Intended to Mislead an Adversary or to Induce anAdversary to Act Recklessly. Ruses may be used for a variety of purposes, such as:•

facilitating surprise attacks or ambushes, 787 such as byo misleading the enemy as to the planned targets or locations of military
operations; 788

784

HAGUE IV REG. 24 (“Ruses of war and the employment of measures necessary for obtaining information about
the enemy and the country are considered permissible.”). Consider AP I art. 37(2) (“Ruses of war are notprohibited.).
785

1956 FM 27-10 (Change No. 1 1976) ¶49 (“In general, a belligerent may resort to those measures for mystifying
or misleading the enemy against which the enemy ought to take measures to protect himself.”).
786

Consider AP I art. 37(2) (“Such ruses are acts which are intended to mislead an adversary or to induce him to act
recklessly but which infringe no rule of international law applicable in armed conflict and which are not perfidious
because they do not invite thé confidence of an adversary with respect to protection under that law.”). Refer to§ 5.22.1 (Definition of Perfidy).
787

Refer to § 5.4.6.1 (Surprise Attacks).

788

For example, FINAL REPORT ON THE PERSIAN GULF WAR 247 (“CINCCENT [Commander-in-Chief, U.S. Central
Command] placed a high priority on deception operations which were intended to convince Iraq that the main attack
would be directly into Kuwait, supported by an amphibious assault. All components contributed to the deception
operation. Aggressive ground force patrolling, artillery raids, amphibious feints and ship movements, and air
operations all were part of CINCCENT’s orchestrated deception operation.”); SPAIGHT, AIR POWER AND WAR
RIGHTS 185 (“‘The greatest hoax in military history’ was the description officially applied to the scheme ofdeception used to induce the Germans to believe that the invasion of the Continent in June, 1944, was coming in thePas de Calais and not in Normandy. It was carried out by a force of 105 aircraft of the R.A.F., by 34 ships of theRoyal Navy, and by ‘R.C.M.’ (Radio Counter-Measures). On the night of 5 June, 18 small ships of the Navysteamed towards Cap d’Antifer to give the impression of an intended landing, while a bomber squadron, No. 617,
under G/Capt. G. L. Chesire, V.C., circled over them, dropping bundles of ‘Window,’ the thin metallised strips
which produce false echoes on the enemy’s radar screens and so confuse their plotting. Another squadron, No. 218,
with 16 ships, made a similar feint towards Boulogne, and other methods of deception were practised elsewhere326

o baiting the enemy into a trap; oro distracting or disorienting the enemy;•inducing enemy forces to waste their resources;•

inducing enemy forces to surrender by falsely alleging military superiority;•

provoking friendly fire among enemy forces; or•causing confusion among enemy forces.

5.25.1.2 But That Do Not Infringe Upon Any Rule of International Law
Applicable in Armed Conflict. According to the definition in AP I, ruses do not infringe upon
any rule of international law applicable in armed conflict. For example, misusing certain signs
and symbols would not constitute ruses. 789 Similarly, although fighting in the enemy’s uniform
would not be perfidy since enemy military personnel are not generally protected by the law ofwar, fighting in the enemy’s uniform also would not be a ruse, since such action would infringe
upon the rule against improper use of the enemy’s uniform. 790
5.25.1.3 And That Are Not Perfidious Because They Do Not Invite the Confidenceof an Adversary With Respect to Protection Under That Law. The ruses described in AP I do notinvite the confidence of the enemy with respect to protection under the law of war. 791 For
example, pretending to be a civilian would not constitute a ruse, although it may be a permissible
deception in certain circumstances. 792
5.25.1.4 Ruses – Notes on Terminology. The term “ruse” is sometimes used as alegal term of art to mean deceptions that are not prohibited by the law of war. In other cases,“ruse” may be used as a factual term to mean a deception that may or may not be prohibited by
the law of war, and thus the distinction is made between “lawful” and “unlawful” ruses. 793
In this manual, the term “ruse” is used to indicate a certain category of permissible
deceptions.
5.25.2 Examples of Ruses. Often, ruses of war operate by misleading the enemy as to theidentity, strength, position, or disposition of one’s own forces. Ruses of war include, but are notalong the Channel. The result was that the enemy were led to believe that convoys were moving to points other thanthat at which the landing was in fact made with complete success and without opposition by air or sea.”).
789

Refer to § 5.24 (Improper Use of Certain Signs).

790

Refer to § 5.23.1 (Improper Use of Enemy Flags, Insignia, and Military Uniforms Prohibited).

791

Refer to § 5.22.1 (Definition of Perfidy).

792

Refer to § 5.25.3 (Examples of Other Deceptions That Are Not Prohibited).

793

1956 FM 27-10 (Change No. 1 1976) ¶50 (“Ruses of war are legitimate so long as they do not involve treacheryor perfidy on the party of the belligerent resorting to them.”).

327

limited to: 794•

decoys or dummy materials, such as dummy weapons, equipment, ships, aircraft, andbuildings; 795•

feigned activity or inactivity, such aso simulating quiet;o feigned flights, retreats, attacks, marches, 796 movements (e.g., approaching adestination indirectly797), supply movements, operations, withdrawals, or camp;•

mimicking other friendly forces; 798•

camouflage or deceptive lighting; 799•

removing or altering identifying information, including moving identifying landmarks;•

planting false information in a manner that allows enemy forces to intercept it, 800 such as794

Consider AP I art. 37 (giving as examples of lawful ruses “the use of camouflage, decoys, mock operations andmisinformation”).
795

For example, SPAIGHT, WAR RIGHTS ON LAND 153-54 (“The ‘Quaker guns’—logs shaped like ordinary cannon
and mounted on wheels—which the Confederates used at Vicksburg to induce the besieging Federals to credit themwith an heavier armament than they possessed…[were a] legitimate ruse[] of war.”).
796

For example, SPAIGHT, AIR POWER AND WAR RIGHTS 186 (“The ruse of reversing temporarily the direction of amarch was used on both sides in the first world war. ‘Aeroplane observers can easily be deceived by a body of theenemy who, on sighting the aeroplane, move at once in a contrary direction to that of the real march, and turn backas soon as the machine has gone to give the news.’…[A] Turkish order which was captured in the Kara Tepe
operations in Mesopotamia in December, 1917, instruct[ed] the Turkish infantry to try to deceive the British
aeroplanes by setting out at once upon the march towards Jebel Hamrin if the aeroplanes came into sight and only toreturn to Kara Tepe upon the withdrawal of the aeroplanes.”).
797

For example, SPAIGHT, AIR POWER AND WAR RIGHTS 187 (“The outstanding example of the technique of indirect
approach is to be found in the raid on Munich on the night of 24 April, 1944. A force of Lancasters left England in
the evening and made for north Italy; they crossed the French Alps and flew nearly to Milan; then they suddenly
changed direction to the north-east and flew to Munich, which was heavily bombed. The feint took the Germans
completely by surprise and the raiders’ losses were extremely low. The bewilderment of the defences was increasedby the fact that Karlsruhe was attacked, after direct approach, on the same night.”).

798

Refer to § 5.25.2.1 (Mimicking Other Friendly Forces).

799

For example, SPAIGHT, WAR RIGHTS ON LAND 154 (“The concealment of cannon in deftly arranged branches orbrushwood is a common device of gunners, but the Japanese reached a dizzy and dramatic height of stratagem when
they actually transformed the face of nature as a means of masking their batteries. On the night before the battle of
the Yalu they transplanted trees to hide the tell-tale discharge of their artillery, choosing those growing either
directly in front or directly behind the entrenchment that was to be concealed. Thus next morning the landscapeappeared unchanged from the Russian side of the river, as the fact that a tree of a particular shape had advanced or
retired 200 or 300 yards during the night was naturally imperceptible.”) (internal quotations omitted).
800

For example, ALBERT N. GARLAND & HOWARD M. SMYTH, SICILY AND THE SURRENDER OF ITALY 64-65 (1993)(“One part of this plan, known as Operation Mincemeat, was designed to convince the enemy high command thatthe objectives of the impending Allied offensive in the Mediterranean were Sardinia and the Peloponnesus rather
than Sicily. The plan itself was simple but highly imaginative. With painstaking care a counterfeit letter from328

through the use ofo false messages among one’s own forces;o intensifying or minimizing message traffic; oro bogus messages, dispatches, or newspapers;•

lying in the course of a POW interrogation in answering questions where no obligation toanswer correctly exists;•

feigning enemy military status by using enemy flags, insignia, or military uniforms
outside of combat; 801 or•

using enemy codes, signals, or passwords. 802

5.25.2.1 Mimicking Other Friendly Forces. It is a permissible ruse of war forcombatant forces to mimic other friendly forces. For example, small forces may simulate larger
units. 803 Units of one type may pretend to be units of another type. 804 Markings that identify
equipment or personnel as belonging to a particular unit may be removed. Individuals or units
may also dress like friendly forces. 805‘Archie Nye’ of the British War Office in London was drawn up….[i]ndicating that a feint against Sicily would be a
deception maneuver to screen an invasion of Sardinia…. To get this letter into Axis hands, British intelligenceobtained with great difficulty the body of a service man who had been a victim of pneumonia.… With a courier’s
briefcase realistically chained to the wrist, the body was cast adrift at a predesignated spot where tide and current
would carry it to [the Axis-controlled] shore.… The information reached the Germans who accepted it asauthentic.”).
801

Refer to § 5.23.1.3 (Deceptive Use of Enemy Flags, Insignia, and Military Uniforms Outside of Combat).

802

Refer to § 5.23.1.5 (Use of Enemy Codes, Passwords, and Countersigns Not Restricted).

803

For example, HUGH M. COLE, THE LORRAINE CAMPAIGN 162 (1993) (“General Walker asked for a ‘deception
team’ to simulate a stronger force in the cavalry sector. This team finally arrived from 12th Army Group
headquarters and operated for some weeks in the area as an ‘armored division.’ (The Germans seem to have been
well deceived for the OB WEST maps show the ‘14th Armored Division’ in this area.)”).
804

For example, R. FRANK FUTRELL, ET AL., ACES AND AERIAL VICTORIES: THE UNITED STATES AIR FORCE IN
SOUTHEAST ASIA 1965-1973, 37-43 (1976) (“The West Force used an elaborate ruse to make the Phantoms appear
to the enemy as an F-105 Rolling Thunder strike force. The F4C’s used F-105 tanker anchors, refueling altitudes,
approach routes, approach altitudes, airspeeds, and radio call signs and communications to simulate a normal
Thunderchief strike force. This was intended to deceive the enemy on NVN [North Vietnamese] radars. … An
opportunity to perpetuate another ruse presented itself a few days later, when RF-4C weather reconnaissance aircraft
were forced to abort their planned weather reconnaissance missions in North Vietnam because of MIG attacks on 3
and 4 January 1967. To lure the MIG’s into the air, two F4C’s on the following day flew, in close formation, a routesimilar to that normally flown by weather reconnaissance aircraft. The intent of the F4C’s was to deceive the enemy
radar operators into believing that only one aircraft was flying a weather reconnaissance mission.”).
805

For example, W. Hays Parks, Special Forces’ Wear of Non-Standard Uniform, 4 CHICAGO JOURNAL OF
INTERNATIONAL LAW 493, 554 (2003) (“In response to the September 11, 2001 al Qaeda terrorist attacks against theWorld Trade Center and the Pentagon, US and Coalition Special Forces began operations in Afghanistan in late
September 2001. At the request— initially insistence—of the leaders of the indigenous forces they supported, they
dressed in indigenous attire. For identification purposes within the Northern Alliance, this included the Massoud329

5.25.3 Examples of Other Deceptions That Are Not Prohibited. Certain deceptions may
not meet the definition of “ruses” because they may invite the confidence of an adversary withrespect to protection under the law of war. Nevertheless, these deceptions are not technicallyprohibited by the law of war, even though, in some cases, they may expose the persons
performing them to liability under an enemy State’s domestic law. 806 These include:•

feigning incapacitation or death in order to escape the enemy, 807 such aso a soldier who feigns death in the hope that he or she will be left alone by enemy
forces, permitting him or her subsequently to take evasive actions to return tofriendly forces without engaging the enemy; 808 ando an aircraft crew that feigns loss of control and the appearance that the aircraft was
about to crash in order to dissuade further enemy attack and to break contact withenemy forces; 809•

feigning civilian status to facilitate spying or sabotage, such as
o false use of journalist credentials; and•using an informal ceasefire for the purpose of collecting wounded and dead and towithdraw unseen by the enemy. 810

pakol (a round brownish-tan or gray wool cap) and Massoud checkered scarf, each named for former Northern
Alliance leader Ahmad Shah Massoud, who was assassinated days before the al Qaeda attacks on the World Trade
Center and Pentagon. This attire was not worn to appear as civilians, or to blend in with the civilian population, butrather to lower the visibility of US forces vis-à-vis the forces they supported.”).
806

Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).

807

ICRC AP COMMENTARY 438 (¶1505) (“[P]erfidious use always involves the abuse of the adversary’s confidence.
Thus, for example, feigning death simply to save one’s life would not be an act of perfidy, while feigning death tokill an enemy once his back is turned, would constitute an act of perfidy.”).
808

For example, SPAIGHT, AIR POWER AND WAR RIGHTS 173 (“A ruse which is mentioned by Major C. J. Biddle,
American Aviation, appears to have been a legitimate one. An American pilot was forced down in the Germanlines. ‘When he landed he left his motor turning over slowly and lay over in his cockpit, as though he had been shot,
the Huns all the time circling above his head. They evidently thought he was done for, for after looking him overthey flew away, whereupon our pilot took off and came home.”).

809

SPAIGHT, AIR POWER AND WAR RIGHTS 170-71 (“The chief ruse practised in air fighting in the first world war
was the vertical nose-dive or spin, used by a pilot who was outfought or outnumbered, or whose gun had jammed orengine failed, to escape by simulating a fall out of control.”).

810

For example, 1958 UK MANUAL ¶319 note 1 (“[A]t 1 p.m. on 7th March, 1905, during the battle of Mukden, agroup of Russians bearing Red Cross and white flags advanced towards the 1st Japanese Army and asked for asuspension of arms for several hours to remove the wounded and dead. The Japanese agreed, as they themselves
had many wounded, but the suspension was made without any formal agreement (sans entente bien dèfinie). In theevening, when the Japanese reopened fire, there was no reply and it was found that the Russians had retired during
the suspension of arms.”).

330

5.26 NON-FORCIBLE MEANS AND METHODS OF WARFARE
In general, propaganda, information gathering, and bribery are permissible means andmethods of warfare.
5.26.1 Propaganda. In general, the use of propaganda is permissible under the law ofwar, even when it encourages acts that violate an enemy State’s domestic law or is directed
towards civilian or neutral audiences. However, certain types of propaganda are prohibited.
5.26.1.1 Propaganda – Notes on Terminology. Propaganda has been referred toas psychological warfare, psychological operations (PSYOP), or military information support
operations (MISO). 811 The word “propaganda” often has been used with a pejorative
connotation to refer to misleading or false statements, but “propaganda” is used in this section
without intending any such connotation.
5.26.1.2 Propaganda Generally Permissible. In general, propaganda is apermissible means of warfare. 812 Propaganda has been disseminated through a variety ofcommunications media, including printed materials, loudspeakers, radio or television broadcast,aircraft, or the internet. Propaganda is sometimes used with bribery813 or to support intelligencegathering. 814 Propaganda may be directed at enemy civilians and neutrals. 815
Propaganda may encourage enemy persons to commit acts that would violate thedomestic law of the enemy State. 816 For example, it would be permissible to encourage enemy
811

Robert Gates, Secretary of Defense, Memorandum: Changing the Term Psychological Operations (PSYOP) to
Military Information Support Operations (MISO), OSD 1012-10 (Dec. 3, 2010) (“Since the 1940s, military
information activities, undertaken both in wartime and peacetime, have been described as ‘psychological warfare,’‘psychological operations,’ or PSYOP. These terms helped draw a useful distinction between lethal military
operations, on the one hand, and military efforts to change minds and reduce or prevent conflict through truthful,
persuasive information, on the other. Today, however, the term ‘Psychological Operations’ has becomeanachronistic and misleading. Although PSYOP activities rely on truthful information, credibly conveyed, the term
PSYOP tends to connote propaganda, brainwashing, manipulation, and deceit.”).
812

GREENSPAN, MODERN LAW OF LAND WARFARE 323 (“Propaganda must be considered a legal means of warfare,since there are no specific rules of war which forbid its use, nor is it as such incompatible with the existing rules ofwar.”).
813

1976 AIR FORCE PAMPHLET 110-31 ¶5-6 (“In World War I, Austrian airmen dropped leaflets over Italian lines
inviting desertion with the promise of compensation for every airplane surrendered intact. In the Korean conflict, anaward was offered to any enemy flier who would defect with his plane intact to the United Nations Command. Infact $100,000 was paid to a North Korean pilot for such a defection.”).
814

Robert Gates, Secretary of Defense, Memorandum: Changing the Term Psychological Operations (PSYOP) to
Military Information Support Operations (MISO), OSD 1012-10 (Dec. 3, 2010) (“In Iraq and Afghanistan, U.S.
military information programs urging civilians to report possible insurgent activity led to valuable information,
enabling our forces to disarm hundreds of improvised explosive devices safely and capture numerous key insurgent
leaders.”).
815

For example, 1958 UK MANUAL ¶313 note 3 (“In the Second World War both sides established regular wirelessservices for spreading war news among both the enemy and neutrals. They also resorted on a large scale topropaganda disseminated from aircraft and from the ground.”).

816

See SPAIGHT, AIR POWER AND WAR RIGHTS 333 (“To drop a pamphlet inciting to assassination would no doubt
be an offence under the laws of war, assassination being forbidden by those laws. It is an entirely different matter331

combatants to defect, desert, or surrender. 817 Similarly, it is generally permissible to encourage
insurrection among the enemy civilian population. 818
5.26.1.3 Prohibited Types of Propaganda. Propaganda must not: (1) inciteviolations of the law of war; nor (2) itself violate a law of war rule.
Propaganda must not incite acts that are prohibited by the law of war. 819 For example,
propaganda intended to incite attacks against civilians is prohibited. In certain cases, individuals
may be liable for instigating or inciting violations of the law of war. 820
Propaganda is also prohibited when it would violate other law of war rules. For example,
it is specifically prohibited for an Occupying Power to use propaganda that aims at securing
voluntary enlistment of protected persons in its armed or auxiliary forces. 821 Similarly, it isprohibited to declare that no quarter will be given, and propaganda in the form of a declaration to
the adversary that no quarter will be given would be prohibited. 822 In addition, propaganda
would be prohibited if it constituted a measure of intimidation or terrorism against the civilian
population, such as the threats of violence whose primary purpose is to spread terror among thecivilian population. 823 Similarly, propaganda may not be used to subject a detainee to public
curiosity or other humiliating or degrading treatment. 824 Additionally, the delivery of thewhen the act which the message seeks to accomplish is one not repugnant to natural law, not malum in se, but
merely contrary to the law (because to the interest) of the State affected, or malum prohibitum. It cannot be held thatto try to persuade a modern civilized nation to change its form of government is to incite to an act of the former
category.”).
817

For example, FINAL REPORT ON THE PERSIAN GULF WAR xxvi (“Coalition strategy also benefitted immenselyfrom psychological operations, the success of which is evidenced primarily by the large number of Iraqi soldiers
who deserted Iraqi ranks or surrendered without putting up any resistance during the ground offensive. Our efforts
built on, among other factors, the disheartening effect on Iraqi troops of the unanswered and intensive Coalition
aerial bombardment, the privations they suffered due to the degradation of the Iraqi logistics system, and the threatof the impending ground campaign. Radio transmissions and leaflets exploited this demoralization by explaining to
the Iraqi troops how to surrender and assuring them of humane treatment if they did. More specific messages
reduced Iraqi readiness by warning troops to stay away from their equipment (which was vulnerable to attack by
precision munitions) and induced desertions by warning troops that their positions were about to be attacked by B52s.”).
818

For example, LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 426-27 (§162a) (“The legitimacy, formerly
controversial, of inciting enemy subjects to rise against the Government in power is now no longer disputed. …
While, in the Second World War, both sides established regular wireless services for spreading war news among
both the enemy and the neutrals, the Allies resorted on a large scale to propaganda disseminated from aircraft as ameans of inducing the population of Germany to remove a dictatorial régime which, it was asserted, was solely
responsible for the war.”).

819

1976 AIR FORCE PAMPHLET 110-31 ¶5-6 (“Propaganda which would incite illegal acts of warfare, as for example
killing civilians, killing or wounding by treachery or the use of poison or poisonous weapons, is forbidden.”).
820

Refer to § 18.23.2 (Instigating or Directly Inciting).

821

Refer to § 11.20.1.1 (Prohibition on Compulsory Service in an Occupying Power’s Armed Forces).

822

Refer to § 5.4.7 (Prohibition Against Declaring That No Quarter Be Given).

823

Refer to § 10.5.3.2 (Collective Penalties and Measures of Intimidation or Terrorism).

824

Refer to § 8.2.2 (Protection Against Humiliating or Degrading Treatment).

332

propaganda should be consistent with other law of war obligations. 825
5.26.2 Information Gathering. The employment of measures necessary for obtaining
information about the enemy and their country is considered permissible. 826
Information gathering measures, however, may not violate specific law of war rules. 827
For example, it would be unlawful, of course, to use torture or abuse to interrogate detainees forpurposes of gathering information. Similarly, it is prohibited to make improper use of a flag oftruce to obtain information. 828
Some forms of deception used to gather information, although not prohibited by the lawof war, may put the persons engaging in them at risk of being treated as spies. 829
5.26.3 Bribery or Offering of Rewards. In general, it is permissible to offer rewards forassistance in the conduct of hostilities, including rewards intended to corrupt enemy combatants
or civilians. 830 Rewards, however, may not be offered for the commission of violations of thelaw of war, and rewards may not be offered for the killing of enemy persons.
5.26.3.1 Prohibition on Offering Rewards for Enemy Persons Dead or Alive. It is
forbidden to place a price on the head of enemy persons or to offer a reward for enemy persons“dead or alive.” 831 Such actions encourage the denial of quarter or encourage private persons totake up arms whose participation in hostilities is often undisciplined and associated with thecommission of war crimes. 832 This prohibition extends to offers of rewards for the killing or
wounding of all enemies, including specific individuals or a class of enemy persons (e.g.,
officers).
However, this rule would not prohibit offering rewards for the capture of unharmed
enemy personnel generally or of particular enemy personnel. 833 Similarly, this rule does not
825

See, e.g., GREENSPAN, MODERN LAW OF LAND WARFARE 324 (“It would appear to be improper to induce enemy
nationals to listen to propaganda emanating from the opposing side by such methods as doling out a few names ofprisoners of war on the occasion of each broadcast and deliberately holding other next of kin in suspense, instead oftransmitting such information by the most rapid means possible.”).

826

HAGUE IV REG. 24 (“[T]he employment of measures necessary for obtaining information about the enemy andthe country are considered permissible.”).
827

GREENSPAN, MODERN LAW OF LAND WARFARE 325 (“In obtaining information, a belligerent must notcontravene specific rules of war.”).

828

Refer to § 5.24.7 (Flags of Truce).

829

Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).

830

1958 UK MANUAL ¶313 (“It is not unlawful to employ spies; or to corrupt enemy civilians or soldiers by bribes
in order to induce them to give information, to desert with or without technical equipment, new weapons, vehicles oraircraft, to surrender, to rebel, or to mutiny; or to give false information to the enemy.”).

831

1956 FM 27-10 (Change No. 1 1976) ¶31 (Article 23 of the Hague IV Regulations “is construed as prohibiting …
putting a price upon an enemy’s head, as well as offering a reward for an enemy ‘dead or alive.’”).
832

Refer to § 4.18.3 (Private Persons Who Engage in Hostilities – Lack of the Privileges of Combatant Status).

833

See 2004 UK MANUAL ¶5.14.1 (“[O]ffers of rewards for the capture unharmed of enemy personnel generally orof particular enemy personnel would be lawful.”).

333

prohibit offering rewards for information that may be used by combatants to conduct military
operations that attack enemy combatants.
5.27 PROHIBITION AGAINST COMPELLING ENEMY NATIONALS TO TAKE PART IN THE OPERATIONS
OF WAR DIRECTED AGAINST THEIR OWN COUNTRY
During international armed conflict, it is prohibited to compel the nationals of the hostile
party to take part in the operations of war directed against their own country, even if they were in
the belligerent’s service before the commencement of the war. 834 Underlying this prohibition is
the principle that States must not compel foreign nationals to commit treason or otherwise toviolate their allegiance to their country. 835
Additional restrictions are applicable with respect to POWs, retained personnel, protected
persons in the home territory of a belligerent, and protected persons in occupied territory. 836
5.27.1 Compel. This prohibition applies to attempts to compel enemy nationals, rather
than measures short of compulsion, such as bribing enemy nationals or seeking to influence themthrough propaganda. 837 However, it is specifically prohibited for an Occupying Power to use
propaganda that aims at securing voluntary enlistment of protected persons in its armed or
auxiliary forces. 838
5.27.2 Nationals of a Hostile Party … Against Their Own Country. This rule applies tonationals of a hostile party; States are not prohibited by the law of war from compelling theirnationals to serve in the armed forces. 839 Similarly, this rule would not prohibit States from834

HAGUE IV REG. art. 23 (“A belligerent is likewise forbidden to compel the nationals of the hostile party to takepart in the operations of war directed against their own country, even if they were in the belligerent’s service before
the commencement of the war.”).
835

See Johnson v. Eisentrager, 339 U.S. 763, 773 (1950) (“The United States does not invoke this enemy allegianceonly for its own interest, but respects it also when to the enemy’s advantage. In World War I, our conscription act
did not subject the alien enemy to compulsory military service. 40 Stat. 885, c. XII, § 4. The Selective Service Actof 1948, 62 Stat. 604, 50 U.S.C. Appendix, § 454(a), exempts aliens who have not formally declared their intention
to become citizens from military training, service and registration, if they make application, but if so relieved, they
are barred from becoming citizens. Thus, the alien enemy status carries important immunities, as well as
disadvantages. The United States does not ask him to violate his allegiance or to commit treason toward his own
country for the sake of ours. This also is the doctrine and the practice of other states comprising our Western
Civilization.”).
836

Refer to § 9.19.2.3 (Labor Assignments That May Be Compelled); § 7.9.5.6 (No Other Compulsory Duties);§ 10.7.3 (Compulsory Work for Protected Persons in a Belligerent’s Home Territory); § 11.20.1.1 (Prohibition on
Compulsory Service in an Occupying Power’s Armed Forces).
837

United States v. Weizsaecker, et al. (The Ministries Case), XIV TRIALS OF WAR CRIMINALS BEFORE THE NMT
549 (“As the war progressed Germany suffered severe losses of manpower. It adopted conscription as to its own
nationals and in many instances of foreign nationals living within its borders. We hold that it is not illegal to recruit
prisoners of war who volunteer to fight against their own country, but pressure or coercion to compel such persons
to enter into the armed services obviously violates international law.”). Refer to § 5.26.1 (Propaganda); § 5.26.3(Bribery or Offering of Rewards).
838

Refer to § 11.20.1.1 (Prohibition on Compulsory Service in an Occupying Power’s Armed Forces).

839

Refer to § 4.5.2.4 (Draftees).

334

compelling persons to betray an allegiance to a non-State armed group during non-internationalarmed conflict. 840

840

Refer to § 17.12.1 (Compelling Captured or Surrendered Enemy Personnel to Take Part in the Conflict).

335

VI – Weapons
Chapter Contents
6.1 Introduction
6.2 DoD Policy of Reviewing the Legality of Weapons
6.3 Other Practices to Help Implement Law of War Obligations With Respect toWeapons
6.4 Prohibited Weapons
6.5 Lawful Weapons
6.6 Weapons Calculated to Cause Superfluous Injury
6.7 Inherently Indiscriminate Weapons
6.8 Poison, Poisoned Weapons, Poisonous Gases, and Other Chemical Weapons
6.9 Biological Weapons
6.10 Certain Environmental Modification Techniques
6.11 Weapons Injuring by Fragments Not Detectable by X-Rays
6.12 Landmines, Booby-Traps, and Other Devices
6.13 Cluster Munitions
6.14 Incendiary Weapons
6.15 Laser Weapons
6.16 Riot Control Agents
6.17 Herbicides
6.18 Nuclear Weapons
6.19 Explosive Ordnance6.20 Explosive Remnants of War
6.1 INTRODUCTION
This Chapter addresses the legal review of new weapons and legal rules specific tocertain types of weapons, including whether certain weapons are illegal per se, specific rules forthe use of certain other weapons, and obligations that may arise after certain weapons are used.
In addition to the law of war, other law, policy, and regulation may apply to certain
weapons. Such law, policy, or regulation may include arms control agreements, U.S. domestic
law, U.S. policy, applicable rules of engagement, and other military orders. This Chapter notes
some provisions of such law, policy, and regulation where relevant, but does not seek to address
exhaustively all of them. 1 In advising on the legality of specific weapons, one must take care to
identify all applicable restrictions and not rely unduly on the absence of discussion in this
Chapter as reflecting the absence of any such restrictions.
6.1.1 Legality of the Weapon Itself (Per Se) Distinguished From the Legality of the Useof the Weapon. A weapon may be illegal per se if a treaty to which the United States is a Party

1

Refer to § 1.2.2.4 (Citation of Policies and Regulations).

336

or customary international law has prohibited its use under all circumstances. 2 For example, theuse of “blinding laser” weapons is prohibited, regardless of how they are used. 3
On the other hand, most weapons are not illegal per se. That is, their use may be lawful
in some circumstances, although unlawful in others, such as if they are used to attack combatants
placed hors de combat. 4
Law of war issues related to targeting (e.g., the requirement that an attack may only bedirected against a military objective) generally are not determinative of the lawfulness of aweapon. However, weapons that are inherently indiscriminate are prohibited. 5 In addition,certain weapons, such as mines, are subject to specific rules on their use in order to reduce therisk of harm to the civilian population. 6
6.2 DOD POLICY OF REVIEWING THE LEGALITY OF WEAPONSAs provided in DoD issuances, DoD policy for many years has required the legal reviewof the intended acquisition or procurement of weapons or weapon systems; this review includes
ensuring that such acquisition or procurement is consistent with the law of war. 7 These DoD
policy requirements have been implemented in Military Department regulations. 8
The fact that the legality of a weapon is discussed in this manual does not obviate the21976 AIR FORCE PAMPHLET 110-31 ¶6-2 (“A weapon may be illegal per se if either international custom or treaty
has forbidden its use under all circumstances.”). Refer to § 6.4.2 (Specifically Prohibited Types of Weapons).

3

Refer to § 6.15.1 (Prohibition on “Blinding Laser” Weapons).

4

Refer to § 5.9 (Persons Placed Hors de Combat).

5

Refer to § 6.7 (Inherently Indiscriminate Weapons).

6

Refer to § 6.12.5.3 (Obligation to Take Feasible Precautions to Protect Civilians From the Effects of Mines,
Booby-Traps, and Other Devices).
7

For example, DOD DIRECTIVE 5000.01, The Defense Acquisition System, ¶E1.1.15 (May 12, 2003, certified current
as of Nov. 20, 2007) (“The acquisition and procurement of DoD weapons and weapon systems shall be consistent
with all applicable domestic law and treaties and international agreements (for arms control agreements, see DoD
Directive 2060.1 (Reference (m), customary international law, and the law of armed conflict (also known as the laws
and customs of war)[)]. An attorney authorized to conduct such legal reviews in the Department shall conduct thelegal review of the intended acquisition of weapons or weapons systems.”); DOD DIRECTIVE 5000.01, The Defense
Acquisition System, ¶4.2.10 (Mar. 15, 1996, cancelled by DoD Directive 5000.1 Oct. 23, 2000) (“DoD acquisitionand procurement of weapons shall be consistent with applicable domestic law and all applicable treaties, customaryinternational law, and the law of armed conflict (also known as the laws and customs of war).”); DOD INSTRUCTION
5500.15, Review of Legality of Weapons Under International Law, ¶II (Oct. 16, 1974, cancelled by DoD Instruction
5000.2 Feb. 23, 1991) (“All actions of the Department of Defense with respect to the acquisition and procurement of
weapons, and their intended use in armed conflict, shall be consistent with the obligations assumed by the UnitedStates Government under all applicable treaties, with customary international law, and, in particular, with the lawsof war.”).
8

For example, DEPARTMENT OF THE ARMY REGULATION 27-53, Review of Legality of Weapons Under International
Law (Jan. 1, 1979); SECRETARY OF THE NAVY INSTRUCTION 5000.2E, Department of the Navy Implementation andOperation of the Defense Acquisition System and the Joint Capabilities Integration and Development System (Sept.
1, 2011); DEPARTMENT OF THE AIR FORCE INSTRUCTION 51-402, Legal Reviews of Weapons and Cyber Capabilities(Jul. 27, 2011).

337

requirement under applicable directives or regulations for a legal review of a weapon or weapon
system that is to be acquired or procured.
6.2.1 Review of New Types of Weapons. The development of new types of weapons hasoften resulted in public denunciation of their allegedly cruel effects and in attempts to prohibit
their use in armed conflict. 9 This has been true of the crossbow, siege engines for hurling
projectiles, firearms, gunpowder, bayonets, and other weapons that have since been widely
recognized as not prohibited by the law of war.
Like other aspects of the law of war, the rules relating to weapons are generally
characterized as prohibitive law forbidding certain weapons or the use of weapons in certain
instances rather than positive law authorizing the weapon or its use. 10 The lawfulness of the useof a type of weapon does not depend on the presence or absence of authorization, but, on thecontrary, on whether the weapon is prohibited. 11 Thus, the mere fact that a weapon is novel or
employs new technology does not mean that the weapon is illegal. 12 The law of war does not
require States to establish a general practice of using a weapon before it is to be regarded aslegal. Moreover, it would appear absurd to suggest that a new type of weapon should
automatically be prohibited because there is no State practice supporting such use, or to suggestthat States must continue using a weapon in each conflict simply to maintain its legality.
6.2.2 Questions Considered in the Legal Review of Weapons for Consistency With U.S.
Law of War Obligations. The review of the acquisition or procurement of a weapon for
consistency with U.S. law of war obligations should consider three questions to determine
whether the weapon’s acquisition or procurement is prohibited:•

whether the weapon’s intended use is calculated to cause superfluous injury; 13•

whether the weapon is inherently indiscriminate; 14 and•whether the weapon falls within a class of weapons that has been specifically

91976 AIR FORCE PAMPHLET 110-31 ¶6-7a (“The development of new weapons or methods of warfare has often
resulted in public denunciation of their allegedly cruel effects, and attempts to prohibit their use in warfare. This has
been true of the crossbow, siege engines for hurling projectiles, firearms, gunpowder, bayonets and other lessefficient methods of warfare.”).
10

Refer to § 1.3.3.1 (Law of War as Prohibitive Law).

11

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 247 (¶52) (“Nor, however,is there any principle or rule of international law which would make the legality of the threat or use of nuclear
weapons or of any other weapons dependent on a specific authorization. State practice shows that the illegality of
the use of certain weapons as such does not result from an absence of authorization but, on the contrary, isformulated in terms of prohibition.”).

12

1976 AIR FORCE PAMPHLET 110-31 ¶6-7a (“A weapon or method of warfare may not be considered illegal solely
because it is new or has not previously been used in warfare.”).

13

Refer to § 6.6 (Weapons Calculated to Cause Superfluous Injury).

14

Refer to § 6.7 (Inherently Indiscriminate Weapons).

338

prohibited. 15
If the weapon is not prohibited, the review should also consider whether there are legal
restrictions on the weapon’s use that are specific to that type of weapon. 16 If any specificrestrictions apply, then the intended concept of employment of the weapon should be reviewed
for consistency with those restrictions.
Lastly, it may be appropriate to advise whether other measures should be taken thatwould assist in ensuring compliance with law of war obligations related to the type of weapon
being acquired or procured. For example, it may be appropriate to advise on the need fortraining programs and other practical measures, such as promulgating doctrine and rules ofengagement related to that type of weapon. 17
6.2.3 AP I Requirement for Legal Review of a New Weapon, Means, or Method of
Warfare. Article 36 of AP I provides:
In the study, development, acquisition or adoption of a new weapon, means or
method of warfare, a High Contracting Party is under an obligation to determine
whether its employment would, in some or all circumstances, be prohibited bythis Protocol or by any other rule of international law applicable to the HighContracting Party.
The DoD policy and practice of conducting legal reviews of weapons preceded this AP I
provision. 18
6.2.4 Policy and Processes for Review of Applicable Arms Control Obligations. DoD
has had a separate, but complementary, policy and practice requiring review of its activities (e.g.,
research, development, and testing of weapons) to ensure that these activities are consistent withthe arms control agreements to which the United States is a Party. 19

15

Refer to § 6.4.2 (Specifically Prohibited Types of Weapons).

16

Refer to § 6.5.1 (Certain Types of Weapons With Specific Rules on Use).

17
Refer to § 6.15.2 (Feasible Precautions in the Employment of Laser Systems to Avoid the Incident of Permanent
Blindness).
18

For example, DOD INSTRUCTION 5500.15, Review of Legality of Weapons Under International Law, ¶II (Oct. 16,
1974, cancelled by DoD Instruction 5000.2 Feb. 23, 1991) (“All actions of the Department of Defense with respect
to the acquisition and procurement of weapons, and their intended use in armed conflict, shall be consistent with the
obligations assumed by the United States Government under all applicable treaties, with customary internationallaw, and, in particular, with the laws of war.”).
19

DOD DIRECTIVE 2060.1, Implementation of, and Compliance with, Arms Control Agreements, ¶4.6.7 (Jan. 9,
2001, certified current Nov. 24, 2003) (“For specific DoD-planned activities, [Heads of DoD components are to]seek clearance from the USD(AT&L), through the appropriate CRG [Compliance Review Group], on a timely basis,
before taking any action, including but not limited to research, tests, development, exercises and operations thatreasonably raises an issue of DoD compliance with an arms control agreement. For other compliance issues
requiring resolution (such as those arising from an on-site inspection), seek resolution from the USD(AT&L),
through the appropriate CRG. When there is doubt whether clearance or resolution is necessary, it shall be sought.
If the issue involves a DoD SAP [Special Access Program], contact the Director of the cognizant DoD SAP Central339

6.3 OTHER PRACTICES TO HELP IMPLEMENT LAW OF WAR OBLIGATIONS WITH RESPECT TO
WEAPONS
A number of practices contribute to the effective implementation of law of war
obligations with respect to weapons (although these practices are not necessarily required by thelaw of war): (1) using weapons in accordance with their design intent and the doctrine that has
been promulgated for their use; (2) refraining from modifying weapons without proper
authorization; (3) refraining from using personal firearms during military operations; and (4)refraining from using captured weapons in combat, except on a field-expedient basis.
6.3.1 Using Weapons in Accordance With Their Design Intent and PromulgatedDoctrine. The use of weapons in accordance with their design intent and the doctrine that has
been promulgated for their use contributes to compliance with law of war obligations withrespect to weapons because the legality of the weapon would have been reviewed based on its
intended use. 20 However, the use of weapons outside their design intent does not necessarily
violate the law of war.
Certain weapon systems may also be subject to law of war restrictions on how they are to
be used, such as incendiary weapons or mines. 21 In such cases, the use of the weapon inaccordance with doctrine and policy is required by international law because that doctrine andpolicy incorporates certain international obligations.
6.3.1.1 Using Weapons for Purposes Other Than Those for Which a Weapon orTool Is Designed. Although in some cases military orders may restrict the use of certain
weapons to only certain authorized purposes, there is not a law of war rule that requires that
weapons or tools only be used for the purposes for which they were designed.
For example, an entrenching tool may be designed for digging fighting positions.
However, its use as a weapon is not prohibited by the law of war. 22 Similarly, it is not prohibitedto use a laser that is not designed to blind enemy persons as a weapon to blind an attacking
enemy. 23 It also generally would not be prohibited to use a weapon that has been designed todestroy enemy material, such as a large-caliber machine gun, against enemy personnel. 24
6.3.2 Refraining From Modifying Weapons Without Proper Authorization. For a varietyof reasons, DoD practice has been not to permit the modification of weapons without proper
authorization.

Office and the Chairman of the DoD SAP Senior Review Group (SRG). The SRG Chairman will effectcoordination with the appropriate CRG.”).
20

Refer to § 6.6.3.4 (Superfluous Injury Rule – the Circumstances to Be Assessed and Design Intent); § 6.7.2(Inherently Indiscriminate Weapons – Circumstances to Be Assessed and Design Intent).
21

Refer to § 6.5.1 (Certain Types of Weapons With Specific Rules on Use).

22

Refer to § 6.5.3.2 (Use of Tools to Stab or Cut).

23

Refer to § 6.15.2.1 (Use of Non-Prohibited Laser Systems to Blind Is Not Absolutely Prohibited).

24

Refer to § 6.5.4.7 (Anti-Personnel Use of Larger (e.g., .50) Caliber Guns or Cannons).

340

In particular, weapons must not be modified in the field for the purposes of aggravating
the harm inflicted on incapacitated persons. 25 For example, substances designed to inflame
wounds must not be added to bullets or edged weapons for the purpose of making wounds more
painful or difficult to treat.
6.3.3 Refraining From the Use of Personal Firearms and Ammunition. DoD personnel
have normally not been permitted to deploy with, or use, personal firearms or ammunition during
military operations. 26 This practice is based on a variety of reasons, including to help ensurecompliance with the law of war and U.S. domestic law.
6.3.4 Refraining From the Use of Captured Weapons, Except on a Field-Expedient Basis.
Under DoD practice, captured or other foreign weapons have been used on a field-expedientbasis, but otherwise have not been used in combat unless they have undergone the required legal
review and have been duly issued to personnel.
Any weapon, ammunition, or munition captured, found, or recovered on the battlefield by
DoD personnel is the property of the United States and not the individual who recovered it,
regardless of whether the property is of U.S., enemy, allied, or unknown origin. 27
6.4 PROHIBITED WEAPONS
Two general prohibitions apply to all types of weapons. In addition, certain types of
weapons are specifically prohibited.
6.4.1 General Prohibitions Applicable to All Types of Weapons. Two fundamental
prohibitions based in customary international law apply to all weapons. It is prohibited to use:•

weapons calculated to cause superfluous injury; 28 or•inherently indiscriminate weapons. 29

6.4.2 Specifically Prohibited Types of Weapons. In addition, the use of the following
types of weapons is prohibited by treaty or customary international law:

25

Refer to § 6.6.4 (Weapons Modified for the Purpose of Aggravating the Harm Inflicted on Incapacitated Persons).

26

For example, General John P. Abizaid, U.S. Central Command, General Order 1B (GO-1B), Prohibited Activities
for U.S. Department of Defense Personnel Present Within the United States Central Command (USCENTCOM)
Area of Responsibility (AOR), ¶2a (Mar. 13, 2006) (prohibiting “[p]urchase, possession, use or sale of privately
owned firearms, ammunition, explosives or the introduction of these items into the USCENTCOM AOR.”); General
Tommy R. Franks, U.S. Central Command, General Order 1A (GO-1A), Prohibited Activities for U.S. Departmentof Defense Personnel Present Within the United States Central Command (USCENTCOM) AOR, ¶2a (Dec. 19,
2000) (prohibiting “[p]urchase, possession, use or sale of privately owned firearms, ammunition, explosives, or the
introduction of these items into the USCENTCOM AOR.”).
27

Refer to § 5.17.3 (Enemy Movable Property on the Battlefield (War Booty)).

28

Refer to § 6.6 (Weapons Calculated to Cause Superfluous Injury).

29

Refer to § 6.7 (Inherently Indiscriminate Weapons).

341

•

poison, poisoned weapons, poisonous gases, and other chemical weapons; 30•

biological weapons; 31•

certain environmental modification techniques; 32•

weapons that injure by fragments that are non-detectable by X-rays; 33•

certain types of mines, booby-traps, and other devices; 34 and•blinding lasers. 35

6.4.3 Relationship Between the Specific Prohibitions and the General Prohibitions.
When a specific prohibition on a weapon is viewed as reflecting customary international law,such prohibition may sometimes be viewed as, in effect, a declaration that the weapon isprohibited as one calculated to cause superfluous injury or as one that is inherently
indiscriminate. 36
However, a specific treaty prohibition on a weapon does not necessarily reflect a State
Party’s view that the weapon is prohibited by customary international law (e.g., that the weapon
is calculated to cause superfluous injury or is inherently indiscriminate). For example, the mere
prohibition or restriction of a weapon in the CCW or its Protocols does not necessarily reflect theconclusion that the weapon is calculated to cause superfluous injury or is inherently
indiscriminate. 37
6.5 LAWFUL WEAPONSApart from the categories of weapons described in § 6.4 (Prohibited Weapons), all othertypes of weapons are lawful for use by the U.S. armed forces; that is, they are not illegal per se.
In other words, other types of weapons are prohibited only to the extent that they fall under the
categories of weapons described in § 6.4 (Prohibited Weapons). For example, a landmine is not
30

Refer to § 6.8 (Poison, Poisoned Weapons, Poisonous Gases, and Other Chemical Weapons).

31

Refer to § 6.9 (Biological Weapons).

32

Refer to § 6.10 (Certain Environmental Modification Techniques).

33

Refer to § 6.11 (Weapons Injuring by Fragments Not Detectable by X-Rays).

34

Refer to § 6.12.4 (Prohibited Classes of Mines, Booby-Traps, and Other Devices).

35

Refer to § 6.15.1 (Prohibition on “Blinding Laser” Weapons).

36

J. Fred Buzhardt, General Counsel, Department of Defense, Letter to Chairman Fulbright, Senate Committee on
Foreign Relations, Apr. 5, 1971, 10 INTERNATIONAL LEGAL MATERIALS 1300, 1302 (1971) (“The thrust of thephrase ‘harmless to man’ made part of the discussion of the rules draws attention to Article 23(e) of the Hague
Regulations of 1907, wherein combatants are forbidden to employ weapons ‘calculated to cause unnecessary
suffering.’ However, the provision in Hague Regulation Article 23(a) concerning the prohibition against using
poison or poisoned weapons is a special case of this rule since it, in effect, declares that any use of a lethal substanceagainst human beings is, per se, a use which is calculated to cause unnecessary suffering.”).
37

Refer to § 19.21.1.3 (CCW and Customary International Law).

342

necessarily a legally prohibited weapon; it is only prohibited if it falls under one of the specificclasses of prohibited mines listed in § 6.12.4 (Prohibited Classes of Mines, Booby-Traps, andOther Devices).
The rules that apply to the use of all weapons are addressed in § 5.4.2 (Overview of Rulesin Conducting Attacks).
6.5.1 Certain Types of Weapons With Specific Rules on Use. Certain types of weapons,
however, are subject to specific rules that apply to their use by the U.S. armed forces. These
rules may reflect U.S. obligations under international law or national policy. These weapons
include:•mines, booby-traps, and other devices (except certain specific classes of prohibited
mines, booby-traps, and other devices); 38•

cluster munitions; 39•

incendiary weapons; 40•

laser weapons (except blinding lasers); 41•

riot control agents; 42•

herbicides; 43•

nuclear weapons; 44 and•explosive ordnance. 45

6.5.2 Other Examples of Lawful Weapons. In particular, aside from the rules prohibiting
weapons calculated to cause superfluous injury and inherently indiscriminate weapons, 46 there
are no law of war rules specifically prohibiting or restricting the following types of weapons by
the U.S. armed forces:38

Refer to § 6.12 (Landmines, Booby-Traps, and Other Devices).

39

Refer to § 6.13 (Cluster Munitions).

40

Refer to § 6.14 (Incendiary Weapons).

41

Refer to § 6.15.2 (Feasible Precautions in the Employment of Laser Systems to Avoid the Incident of Permanent
Blindness).
42

Refer to § 6.16 (Riot Control Agents).

43

Refer to § 6.17 (Herbicides).

44

Refer to § 6.18 (Nuclear Weapons).

45

Refer to § 6.19 (Explosive Ordnance).

46

Refer to § 6.6 (Weapons Calculated to Cause Superfluous Injury); § 6.7 (Inherently Indiscriminate Weapons).

343

•

edged or pointed weapons, including weapons with serrated edges or entrenching tools
used as weapons; 47•

small arms, cannons, and other guns, including shotguns, exploding bullets, expanding
bullets, suppressors, or large-caliber guns; 48•

blast weapons; 49•

fragmentation weapons; 50•

depleted uranium munitions; 51•

remotely piloted aircraft; 52•

autonomy in weapons systems; 53 and•non-lethal weapons. 54

6.5.3 Edged or Pointed Weapons. Stabbing or cutting weapons (e.g., knives, bayonets,
swords, lances, and tomahawks) are not specifically prohibited or restricted by the law of war.
Like other weapons, however, they must not be calculated to cause superfluous injury. 55 Thus, it
is prohibited to modify the weapon for the purpose of making wounds more difficult to treat,such as by adding a barbed head to a lance or by applying to the blade or point a poison or
substance that is designed to inflame wounds. 56
6.5.3.1 Serrated Edges. The law of war does not prohibit the use of serratededged weapons by military forces, including against enemy personnel.
Many bayonets or knives have a serrated edge (a formation resembling the toothed edgeof a saw). Provided that the design intent of the serrated edge is not to aggravate suffering
unnecessarily, such as by making the wound more difficult to treat, the serrated edge is notprohibited. For example, a serrated edge may improve the capabilities of the blade as a multipurpose field utility tool, rather than be intended to increase the pain and suffering of enemy
personnel injured by the blade.
47

Refer to § 6.5.3 (Edged or Pointed Weapons).

48

Refer to § 6.5.4 (Small Arms, Cannons, and Other Guns).

49

Refer to § 6.5.5 (Blast Weapons).

50

Refer to § 6.5.6 (Fragmentation Weapons).

51

Refer to § 6.5.7 (Depleted Uranium Munitions).

52

Refer to § 6.5.8 (Remotely Piloted Aircraft).

53

Refer to § 6.5.9 (Autonomy in Weapon Systems).

54

Refer to § 6.5.10 (Non-Lethal (Less-Lethal) Weapons).

55

Refer to § 6.6 (Weapons Calculated to Cause Superfluous Injury).

56

Refer to § 6.6.4 (Weapons Modified for the Purpose of Aggravating the Harm Inflicted on Incapacitated Persons).

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6.5.3.2 Use of Tools to Stab or Cut. Edged tools, such as over-size knives,
machetes, and entrenching tools, have often been employed both as tools and as weapons. Suchtools are not prohibited by the law of war, and the law of war does not prohibit the use of tools as
weapons to bludgeon, stab, or cut.
6.5.4 Small Arms, Cannons, and Other Guns. Small arms, cannons, and other guns are
not specifically restricted or prohibited by the law of war. In particular, there are no specificrules against shotguns, exploding bullets, expanding bullets, suppressors, or anti-personnel use oflarger caliber guns or cannons.
6.5.4.1 Small Arms, Cannons, and Other Guns – Other Rules on Weapons, as
Applicable. Although no law of war rule regulates small arms, cannons, and other guns as a
specific category, these weapons are subject to other law of war rules on weapons, as applicable.
For example, the use of ammunition, the primary effect of which is to injure by fragmentsthat in the human body escape detection by X-rays, is prohibited. 57 In addition, poison must not
be added to bullets or other projectiles. 58 As with other weapons, small arms, cannons, and otherguns must not be calculated to cause superfluous injury. 59 For example, modifying guns or
ammunition for the purpose of aggravating the harm inflicted upon incapacitated persons would
be prohibited (e.g., adding a substance to bullets with the intent to inflame wounds). 60
Guns that fall under the definition of incendiary weapons would be regulated as
incendiary weapons. 61 However, tracer ammunition is not an “incendiary weapon” because any
incendiary effects are incidental. 62 In addition, even certain projectiles designed to have
incendiary effects that are combined with other effects (e.g., penetration, blast, or fragmentation
effects) would not be regulated as incendiary weapons. 63
6.5.4.2 Shotguns. There is no law of war prohibition on the use (including antipersonnel use) of the shotgun in combat. 64 The fact that multiple fragments are used in many
57

Refer to § 6.11 (Weapons Injuring by Fragments Not Detectable by X-Rays).

58

Refer to § 6.8.1 (Poison and Poisoned Weapons).

59

Refer to § 6.6 (Weapons Calculated to Cause Superfluous Injury).

60

Refer to § 6.6.4 (Weapons Modified for the Purpose of Aggravating the Harm Inflicted on Incapacitated Persons).

61

Refer to § 6.14 (Incendiary Weapons).

62

Refer to § 6.14.1.3 (Excluded From the Definition of Incendiary Weapons – Weapons With Incidental Incendiary
Effects).
63

Refer to § 6.14.1.4 (Excluded From the Definition of Incendiary Weapons – Certain Combined-Effects
Munitions).
64

For example, The Secretary of State to the Swiss Chargé (Oderlin) (Sept. 28, 1918), reprinted in PAPERS
RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES, 1918, SUPPLEMENT 2, THE WORLD WAR 785-86(1933) (“In reply to the German protest, the Government of the United States has to say that the provision of theHague convention [Hague IV Reg. art. 23(e)], cited in the protest, does not in its opinion forbid the use of this kindof weapon. Moreover, in view of the history of the shotgun as a weapon of warfare, and in view of the well-known
effects of its present use, and in the light of a comparison of it with other weapons approved in warfare, the shotgun
now in use by the American Army cannot be the subject of legitimate or reasonable protest.”).

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shotgun rounds to wound does not prohibit their use. 65
Shotguns have been used as anti-personnel weapons for close-combat, for guarding
enemy prisoners of war, and for anti-materiel purposes during armed conflict for many years. 66
Shotgun munitions may include, for example, buckshot ammunition, flechette ammunition, nonlethal projectiles, and breaching rounds.
Breaching rounds are an anti-materiel munition designed to dislodge door hinges or door
locks and are used to enable military forces to enter a room or building. As with other weapons
designed for anti-material use, the use of an anti-material round against enemy personnel is notprohibited. 67 For example, a breaching round may be used against an enemy combatant who
opens the door or appears in the doorway just as the door is about to be breached.
6.5.4.3 Exploding Bullets. The use of exploding bullets, including use against
enemy personnel, is not prohibited by the law of war. For example, explosive bullets have been
lawfully used during armed conflict, against both enemy material and enemy combatants. 68
Exploding bullets, like all weapons, however, are subject to the superfluous injury rule. 69
For example, without a valid military reason, bullets that are specifically designed to explodewithin the human body would be prohibited, since a non-exploding bullet would be just as
effective and efficient at incapacitating an enemy combatant. 70
On the other hand, an explosive bullet that was designed to explode in order to increase
the probability of striking an enemy combatant or to strike an enemy combatant behind cover65

Refer to § 6.5.6 (Fragmentation Weapons).

66

For example, W. Hays Parks, Special Assistant for Law of War Matters, Office of The Judge Advocate General,
U.S. Army, Joint Service Combat Shotgun Program, THE ARMY LAWYER 16, 17-18 (Oct. 1997) (“The combat
shotgun or military rifle with a shotgun-type munition continued to be used in the United States. In the American
Revolution, General George Washington encouraged his troops to load their muskets with ‘buck and ball,’ a loadconsisting of one standard musket ball and three to six buckshot, in order to increase the probability of achieving ahit. … United States Air Force security police employed shotguns in base security operations in Saudi Arabia during
Operations Desert Shield and Desert Storm (1990-91) to protect them from attack by terrorists or Iraqi military
units, and some personnel in British armored units were armed with shotguns as individual weapons during thatconflict.”).
67

Refer to § 6.3.1.1 (Using Weapons for Purposes Other Than Those for Which a Weapon or Tool Is Designed).

68

For example, SPAIGHT, AIR POWER AND WAR RIGHTS 213 (“In the second world war projectiles of the kindreferred to [in the 1868 St. Petersburg Declaration] were freely used by all the belligerent air forces. The explosivebullet gave place to the small cannon shell, but the latter, fired normally from a gun of 20 mm. bore, was equally
within the prohibited limit, since its weight was only 130 grammes as compared with the 400 grammes specified in
the Declaration. Cannon guns of 40 mm. were also mounted in aircraft and the projectiles were outside the ban.
The incendiary bullets used were usually fired from machine guns with bores of .303 inch and .5 inch.”).

69

Refer to § 6.6 (Weapons Calculated to Cause Superfluous Injury).

70

For example, ULYSSES S. GRANT, I PERSONAL MEMOIRS OF U.S. GRANT 538 (1892) (“The enemy used in theirdefence explosive musket-balls, no doubt thinking that, bursting over our men in the trenches, they would do some
execution; but I do not remember a single case where a man was injured by a piece of one of these shells. Whenthey were hit and the ball exploded, the wound was terrible. In these cases a solid ball would have hit as well. Theiruse is barbarous, because they produce increased suffering without any corresponding advantage to those using
them.”).

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would not be prohibited. 71 Similarly, bullets that explode in order to neutralize enemy material
more effectively are not prohibited, and there is no objection to using these bullets also against
enemy combatants. 72
The United States is not a Party to the 1868 St. Petersburg Declaration on Exploding
Bullets, and its prohibition on the use of certain projectiles does not reflect customaryinternational law. 73
6.5.4.4 Expanding Bullets. The law of war does not prohibit the use of bullets
that expand or flatten easily in the human body. Like other weapons, such bullets are only
prohibited if they are calculated to cause superfluous injury. 74 The U.S. armed forces have used
expanding bullets in various counterterrorism and hostage rescue operations, some of which havebeen conducted in the context of armed conflict.
The 1899 Declaration on Expanding Bullets prohibits the use of expanding bullets inarmed conflicts in which all States that are parties to the conflict are also Party to the 1899
Declaration on Expanding Bullets. 75 The United States is not a Party to the 1899 Declaration on
Expanding Bullets, in part because evidence was not presented at the diplomatic conference that
expanding bullets produced unnecessarily severe or cruel wounds. 76

71

For example, C. Todd Lopez, Army wants 36 more “Punisher” weapons in 2012, ARMY NEWS SERVICE, Feb. 3,
2011 (“The XM25 allows Soldiers to engage defilade targets -- those behind a barrier, protected from oncoming
weapons fire. The XM25 measures the distance to the enemy’s protective barrier, and can then program the roundto detonate a user-adjustable distance past that -- allowing Soldiers to put an air-bursting round directly above theenemy’s head, inside their protected area. … The five prototype weapons entered theater in November, and werefirst used in combat Dec. 3.”).
72

U.S. RESPONSE TO ICRC CIHL STUDY 524 (“States widely have employed bullets that may detonate on impact
with materiel for both anti-materiel and anti-personnel purposes. Such ammunition was in common use by all Statesthat participated in World War II, and in conflicts thereafter including in widespread aircraft strafing of enemy
forces, a practice common to every conflict since World War I in which aircraft were employed.”). See
also Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General Report,
Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 1, 20-21 (1938) (“In the form in which theproposal was first brought forward its provisions were limited to a stipulation that the use of tracer bullets against
aircraft generally was not prohibited. Various criticisms were, however, made about the proposed text, chiefly
founded on the impracticability for an airman while in flight to change the ammunition which he is using in themachine-gun in his aircraft. He cannot employ different bullets in accordance with the target at which he is aiming,
one sort of ammunition for other aircraft and another sort for land forces by whom he may be attacked. The
Commission, therefore, came to the conclusion that the most satisfactory solution of the problem would be to state
specifically that the use of tracer, incendiary or explosive projectiles by or against aircraft is not prohibited.”).
73

Refer to § 19.6 (1868 St. Petersburg Declaration).

74

Refer to § 6.6 (Weapons Calculated to Cause Superfluous Injury).

75

Refer to § 19.7.1 (1899 Declaration on Expanding Bullets).

76

William Crozier, Captain of Ordnance, U.S. Army, Report of Captain Crozier to the American Delegation to theFirst Hague Conference, Regarding the Work of the First Committee of the Conference and its Subcommittee,
reprinted in INSTRUCTIONS TO THE AMERICAN DELEGATES TO THE HAGUE PEACE CONFERENCES AND THEIROFFICIAL REPORTS 34 (1916) (noting the objection of the U.S. representative that the 1899 Declaration “condemnedby designed implication, without even the introduction of any evidence against it, the use of a bullet actuallyemployed by the army of a civilized nation”).

347

In 2013, a review conducted by DoD in coordination with the Department of State
reconfirmed that the prohibition in the 1899 Declaration on Expanding Bullets did not reflect
customary international law. 77 The findings of this review were consistent with the longstanding
position of the United States not to become a Party to the 1899 Declaration and not to apply adistinct prohibition against expanding bullets, but instead to regard expanding bullets asprohibited only to the extent that such bullets are calculated to cause unnecessary suffering. 78
In the past, expanding bullets have been viewed as ineffective for military and technicalreasons. 79 Non-expanding bullets that were widely used in armed conflict produced wounds
comparable to, or more severe than, wounds produced by expanding bullets. 80 In addition,
77

Portions of the analysis in this review are presented in the following paragraphs.

78

William Crozier, Captain of Ordnance, U.S. Army, Report of Captain Crozier to the American Delegation to theFirst Hague Conference, Regarding the Work of the First Committee of the Conference and its Subcommittee,
reprinted in INSTRUCTIONS TO THE AMERICAN DELEGATES TO THE HAGUE PEACE CONFERENCES AND THEIROFFICIAL REPORTS 33-34 (1916); JAMES BROWN SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES:
III THE CONFERENCE OF 1907 15 (1921) (Brigadier General George B. Davis recalling the U.S. delegation’s
proposal in 1907 to amend the 1899 Declaration to prohibit ‘bullets that inflict unnecessarily cruel wounds’); 1914
RULES OF LAND WARFARE ¶3 note 2 (explaining that the 1899 Declaration “has never been ratified by the UnitedStates but see paragraph ‘e,’ Article XXIII, convention IV, Hague Rules, 1907, infra, par., 184”); U.S. ARMY
ORDNANCE, HISTORY OF SMALL-ARMS AMMUNITION, NO. 1940, 15 (1920) (“The Judge Advocate General’s Officehas given the opinion that the armor-piercing ammunition [with a soft lead nose that mushrooms] is a lawful
weapon”); 1934 RULES OF LAND WARFARE ¶34 (1934) (giving no separate rule against expanding bullets, but
providing that certain types of bullets may be prohibited under the rule against weapons calculated to cause
unnecessary suffering); 1940 RULES OF LAND WARFARE ¶34 (1940) (same); 1956 FM 27-10 (Change No. 1 1976)¶34(b) (same); Use of Expanding Ammunition by U.S. Military Forces in Counterterrorist Incidents, 45 (reiteratingthat the United States is not a party to the 1899 Hague Declaration on expanding bullets but is a party to the Hague
Convention IV, which includes the prohibition against weapons calculated to cause unnecessary suffering); W. Hays
Parks for The Judge Advocate General, U.S. Army, Memorandum of Law—Sniper Use of Open-Tip Ammunition,
Oct. 12, 1990, reprinted in THE ARMY LAWYER 86, 87 (Feb. 1991) (“The United States is not a party to [the 1899
Hague Declaration], but United States officials over the years have taken the position that the armed forces of theUnited States will adhere to its terms to the extent that its application is consistent with the object and purpose ofarticle 23e of the Annex to Hague Convention IV”); W. Hays Parks, Joint Service Combat Shotgun Program, THE
ARMY LAWYER 16, 22 (Oct. 1997) (same).
79

See, e.g., Alfons Vanheusden, W. Hays Parks, and William H. Boothby, The Use of Expanding Bullets in Military
Operations: Examining the Kampala Consensus, 50 MILITARY LAW AND LAW OF WAR REVIEW 535, 537 (2011)(“[L]ack of use of expanding ammunition by armed forces could be attributed equally to the increased risk of
weapon malfunction (specifically, failure to feed) through its use, particularly in machineguns”); P. R. COURTNEYGREEN, AMMUNITION FOR THE LAND BATTLE 33 (1991) (noting that expanding bullets “may not cause a sufficiently
incapacitating wound, particularly in a military context,”); WILLY LEY, SHELLS AND SHOOTING 39-41 (1942)(“[D]umdum bullets find too much air resistance. Roughly speaking, their power of penetration is only one-quarter
that of other bullets, and the ‘dumdum effect’ does not take place if the velocity is low. Ranges of more than 600
yards ruin the ‘dumdum effect,’ and over 1200 yards the bullet may be so slow that it cannot penetrate a heavy
uniform with overcoat.”); Charles Frederick Carter, “Atrocities” in War, Nov. 1914, 29 THE WORLD’S WORK 65, 66(1915) (“But since the first Hague Conference no nation has used dum-dum bullets for a compelling reason that has
nothing to do with the Hague nor with considerations of humanity. Experience has taught that when a modern highpowered rifle, such as is used in all armies to-day, is hot and dirty, conditions common to battle, the dum-dum bullet
is liable to ‘strip’; that is, the leaden core is apt to squirt out, leaving the jacket in the barrel, so that when the next
shot is fired the gun blows back, or bursts.”).
80

See, e.g., High-speed Bullets and Dumdums, 79 SCIENTIFIC AMERICAN SUPPLEMENT NO. 2053, 304 (May 8, 1915)(“But the modern spitzer, at its still higher velocities and its unsteady performance in tissue, gives results that are
more frightful than any dumdum.”); Medical News: The Explosive Effect of Bullets, 46 JOURNAL OF THE AMERICAN

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expanding bullets are widely used by law enforcement agencies today, which also supports theconclusion that States do not regard such bullets are inherently inhumane or needlessly cruel. 81
6.5.4.5 Rome Statute of the International Criminal Court War Crime Regarding
the Use of Expanding Bullets. The war crime of using expanding bullets that is reflected in theRome Statute of the International Criminal Court has been interpreted by States only tocriminalize the use of expanding bullets that are also calculated to cause superfluous injury andnot to create or reflect a prohibition against expanding bullets as such.
The Rome Statute of the International Criminal Court lists as a war crime “[e]mploying
bullets which expand or flatten easily in the human body, such as bullets with a hard envelope
which does not entirely cover the core or is pierced with incisions.” 82
Elements of Crimes have been adopted by the Assembly of States Parties to the Rome
Statute to assist the ICC in its interpretation and application of the Article 8 of the Rome Statute,which includes this war crime. 83 The Elements of Crimes explain that this rule is not violated
unless, inter alia, “[t]he perpetrator was aware that the nature of the bullets was such that theiremployment would uselessly aggravate suffering or the wounding effect.” 84 When adopting anamendment at the Review Conference in 2010 that would apply this crime to non-internationalarmed conflict, Parties to the Rome Statute reiterated this understanding and explained that “thecrime is committed only if the perpetrator employs the bullets to uselessly aggravate suffering or
the wounding effect upon the target of such bullets, as reflected in customary internationallaw.” 85
MEDICAL ASSOCIATION 66 (Jan. 2, 1915) (“[T]he instability of flight and tendency of the [pointed modern] bullet to
revolve around a transverse axis give it a capacity for wounding the soft part greater than that of any expanding orsoft-nosed bullet.”); George B. Davis, The Amelioration of the Rules of War on Land, 2 AJIL 63, 75-76 (1908)(“Small-arm projectiles having the mechanical construction, or causing the wounds which are particularly describedin the declaration, have ceased to be manufactured; and the forms now in use, some of which inflict wounds of great
and unnecessary severity, are no longer within the narrow and illogical terms of the prohibition. Had the Crozier
amendment been adopted, it is highly probable that a type of small-arm projectile would have been developed which
would have met all reasonable requirements in respect to velocity, range, and flatness of trajectory, without theneedless and inhuman laceration of tissues which attend those now in use, or which are proposed for adoption in thearmies of some civilized powers.”).
81

For example, NILS MELZER, TARGETED KILLING IN INTERNATIONAL LAW 417 and note 103 (2009) (“A model
example in this respect [i.e., a situation governed by the law enforcement paradigm] is the case of Ewald K., which
occurred in Chur, Switzerland, in 2000. In this case, although there was no risk to innocent bystanders, Swiss Police
snipers deliberately used expanding rifle bullets in order to ensure that Ewald K. had no opportunity to return fire,
but would be killed instantly. … This motivation was accepted by the Cantonal Court as sufficient to justify the useof expanding rifle bullets. See Cantonal Court Grisons, Ewald K. Case, Deliberation 13(d).”).
82

ROME STATUTE art. 8(2)(b)(xix).

83

ROME STATUTE art. 9 (“1. Elements of Crimes shall assist the Court in the interpretation and application of articles
6, 7 and 8. They shall be adopted by a two-thirds majority of the members of the Assembly of States Parties.”).
84

ROME STATUTE, ELEMENTS OF CRIMES, art. 8(2)(b)(xix), Official Records of the Assembly of States Parties to theRome Statute of the International Criminal Court, First session, New York, ICC-ASP/1/3, 112, 146 (Sept. 3-10,2002).

85

Resolution RC/Res. 5, First ICC Review Conference: Resolutions and Declarations, 49 INTERNATIONAL LEGAL
MATERIALS 1328, 1333 (2010).

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Thus, this crime only applies to expanding bullets that are also calculated to cause
superfluous injury and does not create or reflect a prohibition against expanding bullets assuch. 86
6.5.4.6 Suppressors (Silencers). A suppressor or silencer is a device that is
intended to reduce or disguise the sound of a firearm’s discharge without affecting its ability to
fire. There is no law of war prohibition on the use of a suppressor, and silenced weapons havebeen a part of the inventory of military forces and law enforcement agencies in many States,
including the United States. 87
6.5.4.7 Anti-Personnel Use of Larger (e.g., .50) Caliber Guns or Cannons. The
law of war does not prohibit the use of .50 caliber machineguns or other large-caliber guns
against enemy personnel. 88 Such use has been widespread and long-standing. 89
Similarly, cannons and other artillery (e.g., the M242 25mm Bushmaster in the BradleyFighting Vehicle or the 30mm GAU-8 in the A-10 aircraft) have often been used during armed
conflict against enemy material and may also be used against enemy combatants. Although use
against individual enemy combatants may not necessarily reflect the most efficient use ofresources, such use is not prohibited by the law of war.
6.5.5 Blast Weapons. Blast weapons rely upon the pressure wave caused by an
explosion, rather than fragmentation, to cause damage to objects and injury to enemy military
personnel. Inflicting blast injury is not prohibited by the law of war. 90
86

Refer to § 6.6 (Weapons Calculated to Cause Superfluous Injury).

87

W. Hays Parks, Special Assistant for Law of War Matters, Office of the Judge Advocate General, U.S. Army,
Memorandum re: Legality of Silencers/Suppressors 3 (Jun. 9, 1995) (“Today, silenced weapons are a standard partof the inventory of military forces and law enforcement agencies throughout the world. For example, the Heckler
and Koch MP5SD, an integrally suppressed 9x19mm Parabellum submachinegun, is in use by law enforcement andmilitary forces in more than forty nations; in the United States, local, state and federal law enforcement agencies andeach of the four armed services are equipped with the MP5SD. The H&K MP5SD was employed by U.S. Army,
Navy and Marine Corps units during the 1991 liberation of Kuwait.”).
88

U.S. Army, Office of the Judge Advocate General, International Law Division, Opinion DAJA-IA 1986/8044,
Use of the .50-Caliber Machinegun, Nov. 21, 1986, reprinted in THE ARMY LAWYER 36, 37 (Apr. 1987)(“Employment of the .50 caliber machinegun or other .50 caliber weapons against enemy personnel does not violate
the law of war.”).
89

U.S. Army, Office of the Judge Advocate General, International Law Division, Opinion DAJA-IA 1986/8044,
Use of the .50-Caliber Machinegun, Nov. 21, 1986, reprinted in THE ARMY LAWYER 36 (Apr. 1987) (“Largercaliber weapons have remained in the inventories of virtually every nation. For example, the Soviet Union mounts
the NSV .50 caliber machinegun on its tanks; it can be removed and employed on a tripod in a ground mode.
Nations generally employ .50-caliber machineguns as antiaircraft, antimaterial, and antipersonnel weapons. On
occasion, they have been employed specifically as long-range sniper weapons. The Soviet PTRD was a 14.5mm(.58 caliber) bolt-action, single-shot antitank weapon employed during World War II; because of its long-range
accuracy, it was frequently employed as a sniper weapon against German troops. Similarly, the Browning
Machinegun Caliber .50 HB, M2 currently in use by U.S. forces, was employed as a single-shot sniper rifle during
the Vietnam War.”).
90

W. Hays Parks, Special Assistant to The Judge Advocate General, U.S. Army, Memorandum re: 40mm
Thermobaric Munition; Legal Review, Apr. 2, 2003 (“Blast is and has been an inherent part of high explosive
munitions, and combatants have died solely from the blast effects of conventional HE munitions. Pioneers, sappers

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6.5.6 Fragmentation Weapons. Some munitions operate by projecting a large number offragments or projectiles on detonation. Such weapons may include fragmenting artillery shells,
the Claymore munition, “grape shot,” grenades, flechettes, 91 and shotgun buckshot. 92
The fragments or projectiles in such weapons must be detectable by X-rays. 93 However,the use of multiple fragments or projectiles to injure enemy personnel is not prohibited by thelaw of war. 94 The fact that enemy military personnel in the path of fragment dispersion arelikely to suffer multiple wounds does not render the weapon unlawful. Multiple fragments may
be necessary to increase the probability of incapacitating enemy combatants.
6.5.7 Depleted Uranium Munitions. Depleted uranium (DU) is used in some munitions
because its density and physical properties create a particularly effective penetrating combination
to defeat enemy armored vehicles, including tanks. 95
States have regarded the use of depleted uranium weapons as consistent with their law of
war obligations. 96

and combat engineers engaged in tunneling operations under enemy lines in the American Civil War, World War I,
and Korea employed substantial amounts of high explosives. Enemy personnel above the detonation became blast
casualties. Artillery barrages generally will produce a number of enemy casualties, including fatalities, from blast
alone, as will heavy aerial bombardment.”).
91

See SPAIGHT, AIR POWER AND WAR RIGHTS 201 (1947) (“Reference has been made above to flêchettes and it isdesirable to explain what these were. They were small arrows of steel which were dropped in bundles of fifty at atime from aeroplanes upon ground targets or observation balloons. They were used on both the Allies’ and theGerman sides, but were originally an Italian invention, having been first used in Tripoli in 1911-12.”). See also W.
Hays Parks, Conventional Weapons and Weapons Reviews, 8 YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW
55, 81 (2005) (“Flechettes are steel darts of varying sizes fired at high velocities in large quantities in munitions as
small as a shotgun shell to as large as a 90mm tank round, 105mm artillery round and 106mm recoilless rifle round,enabling a uniform dispersion of flechettes to increase the probability of wounding enemy combatants within theirpath. These munitions had proved particularly effective as a close-range final defensive fire against massed
attacking forces.”).
92

Refer to § 6.5.4.2 (Shotguns).

93

Refer to § 6.11 (Weapons Injuring by Fragments Not Detectable by X-Rays).

94

1976 AIR FORCE PAMPHLET 110-31 ¶6-6b (“Where a military purpose is apparent and suffering is incidental to themilitary necessities involved, the use of explosives and fragmentation particles such as those contained inprojectiles, mines, bombs, rockets, missiles and hand grenades is not prohibited under the law of armed conflict.
This result is confirmed by an extensive practice of nations in using such weapons during periods of armed conflictin the 20th Century and previously.”).
95

Col. James Naughton, Army Materiel Command, Special Department of Defense Briefing: Update on Depleted
Uranium (Mar. 14, 2003) (“[T]he depleted uranium is a material that has a characteristic that allows it to sharpen
itself as it penetrates the target. The uranium shreds off the sides of the penetrator instead of squashing or
mushrooming. If you look at the lower picture, which is what happens with tungsten, the tungsten mushrooms. The
result is the depleted uranium will penetrate more armor of a given character and type at a given range than tungsten
will, no matter how we design the penetrators.”).
96

For example, DAILY HANSARD, HOUSE OF COMMONS DEBATES, Jul. 12, 2012, Written Ministerial Statements,
Column 40WS-41WS (“The Minister for the Armed Forces (Nick Harvey): I informed the House on 31 October
2011 that I had commissioned officials to undertake a legal weapons review of our depleted uranium (DU) antiarmour tank rounds, known as Charm-3. … The review is now complete and has concluded that Charm-3 is capableof being used lawfully by UK armed forces in an international armed conflict. … The use of DU in weapon systems

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The U.S. armed forces have fielded and used depleted uranium munitions. Extensive
efforts have been made to study whether there are harmful health effects from exposure to
depleted uranium from weapons that use it, but no such effects have been found. 97
6.5.8 Remotely Piloted Aircraft. There is no prohibition in the law of war on the use of
remotely piloted aircraft (also called “unmanned aerial vehicles”). 98 Such weapons may offer
certain advantages over other weapons systems. 99

is not prohibited by any treaty provision. There have been extensive scientifically based studies, undertaken by theWorld Health Organisation in relation to the long-term environmental and other health effects allegedly attributable
to the use of DU munitions. In the light of the reassuring conclusions drawn by such scientific studies, and noting
the continuing military imperative underpinning retention of Charm-3 as a weapon system, it was concluded that useof Charm-3 does not offend the principle prohibiting superfluous injury or unnecessary suffering in armed conflict.
… Finally, it was concluded that DU continues to be a material of choice used by states in the manufacture of antiarmour munitions. To date no inter-state consensus has emerged that DU munitions should be banned and theavailable scientific evidence (developed in the aftermath of the Gulf war in 1991) continues to support the view heldby the UK that such munitions can be retained for the limited role envisaged for their employment. The UK policy
remains that DU can be used within weapons; it is not prohibited under current or likely future international
agreements.”).
97

Ambassador Robert Wood, United States Mission to the United Nations, Remarks at the Sixty-Ninth UNGA First
Committee Cluster Five: Explanation of Vote Before the Vote on L.43, Agenda Item 96 (e) “Effects of the use ofarmaments and ammunitions containing depleted uranium,” Oct. 31, 2014 (“I am speaking on behalf of France, theUnited Kingdom and the United States to explain our negative vote on draft resolution L.43 ‘Effects of the use ofarmaments and ammunitions containing depleted uranium’. Mr. Chairman, this is not a new issue. The
environmental and long-term health effects of the use of depleted uranium munitions have been thoroughly
investigated by the World Health Organization, the United Nations Environmental Program, the International
Atomic Energy Agency, NATO, the Centres for Disease Control, the European Commission, and others. None ofthese inquiries has documented long-term environmental or health effects attributable to use of these munitions.”);Dr. Michael Kilpatrick, DoD Deployment Health Support Directorate, Special Department of Defense Briefing:
Update on Depleted Uranium (Mar. 14, 2003) (“We looked at some 90 Gulf War veterans who were in or on anarmored vehicle when it was struck by depleted uranium in friendly fire. And those individuals have been followed
on an annual basis now we are talking 12 years post-incident. And we do not see any kidney damage in thoseindividuals … . They were also followed for other medical problems, and … they’ve had no other medical
consequences of that depleted uranium exposure. Now, some of these individuals had amputations, were burned,
had deep wounds, so that these individuals, some of them of course do have medical problems. But as far as aconsequence of the depleted uranium exposure, we are not seeing anything related to that either from a chemical orradiological effect.”).
98

John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, Speech at the Wilson
Center: The Ethics and Efficacy of the President’s Counterterrorism Strategy, Apr. 30, 2012, 2012 DIGEST OF
UNITED STATES PRACTICE IN INTERNATIONAL LAW 584, 585 (“As a matter of international law, the United States isin an armed conflict with al-Qa’ida, the Taliban, and associated forces, in response to the 9/11 attacks, and we may
also use force consistent with our inherent right of national self-defense. There is nothing in international law thatbans the use of remotely piloted aircraft for this purpose… .”); Harold Hongju Koh, Legal Adviser, Department ofState, Address at the Annual Meeting of the American Society of International Law: The Obama Administration andInternational Law, Mar. 25, 2010, 2010 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 715, 718-19(“[T]here is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed
conflict -- such as pilotless aircraft … .”).
99

John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, Speech at the Wilson
Center: The Ethics and Efficacy of the President’s Counterterrorism Strategy, Apr. 30, 2012, 2012 DIGEST OF
UNITED STATES PRACTICE IN INTERNATIONAL LAW 584, 586 (“Targeted strikes are wise. Remotely piloted aircraftin particular can be a wise choice because of geography, with their ability to fly hundreds of miles over the mosttreacherous terrain, strike their targets with astonishing precision, and then return to base. They can be a wise352

6.5.9 Autonomy in Weapon Systems. The law of war does not prohibit the use of
autonomy in weapon systems. DoD has developed policy on the use of autonomy in weapon
systems. 100
6.5.9.1 Description and Examples of the Use of Autonomy in Weapon Systems.
Some weapons may have autonomous functions. For example, mines may be regarded as
rudimentary autonomous weapons because they are designed to explode by the presence,
proximity, or contact of a person or vehicle, rather than by the decision of the operator. 101 Other
weapons may have more sophisticated autonomous functions and may be designed such that theweapon is able to select targets or to engage targets automatically after being activated by theuser. For example, the United States has used weapon systems for local defense withautonomous capabilities designed to counter time-critical or saturation attacks. These weapon
systems have included the Aegis ship defense system and the Counter-Rocket, Artillery, andMortar (C-RAM) system.
6.5.9.2 No Law of War Prohibition on the Use of Autonomy in Weapon Systems.
The law of war does not specifically prohibit or restrict the use of autonomy to aid in theoperation of weapons.
In fact, in many cases, the use of autonomy could enhance the way law of war principles
are implemented in military operations. For example, some munitions have homing functions
that enable the user to strike military objectives with greater discrimination and less risk ofincidental harm. As another example, some munitions have mechanisms to self-deactivate or toself-destruct, which helps reduce the risk they may pose generally to the civilian population orafter the munitions have served their military purpose. 102
Although no law of war rule specifically restricts the use of autonomy in weapon
systems, other rules may apply to weapons with autonomous functions. For example, to theextent a weapon system with autonomous functions falls within the definition of a “mine” in the
CCW Amended Mines Protocol, it would be regulated as such. 103 In addition, the general rules
applicable to all weapons would apply to weapons with autonomous functions. For example,
autonomous weapon systems must not be calculated to cause superfluous injury or be inherently
indiscriminate. 104
6.5.9.3 Law of War Obligations of Distinction and Proportionality Apply to
Persons Rather Than the Weapons Themselves. The law of war rules on conducting attacks
choice because of time, when windows of opportunity can close quickly and there may be just minutes to act. They
can be a wise choice because they dramatically reduce the danger to U.S. personnel, even eliminating the danger
altogether. Yet they are also a wise choice because they dramatically reduce the danger to innocent civilians,
especially considered against massive ordnance that can cause injury and death far beyond its intended target.”).
100

Refer to § 6.5.9.4 (DoD Policy on Autonomy in Weapon Systems).

101

Refer to § 6.12.1.2 (Designed to Be Exploded by the Presence, Proximity, or Contact of a Person or Vehicle).

102

Refer to § 6.12.1.6 (Mines With Compliant Self-Destruction and Self-Deactivation (SD/SDA) Mechanisms).

103

Refer to § 6.12.1 (Definition of Mine).

104

Refer to § 6.6 (Weapons Calculated to Cause Superfluous Injury); § 6.7 (Inherently Indiscriminate Weapons).

353

(such as the rules relating to discrimination and proportionality) impose obligations on persons.
These rules do not impose obligations on the weapons themselves; of course, an inanimate object
could not assume an “obligation” in any event. Thus, it is not the case that the law of war
requires that a weapon determine whether its target is a military objective. Similarly, the law of
war does not require that a weapon make other legal determinations such as whether an attack
may be expected to result in incidental harm that is excessive in relation to the concrete anddirect military advantage expected to be gained. The law of war does not require weapons tomake legal determinations, even if the weapon (e.g., through computers, software, and sensors)
may be characterized as capable of making factual determinations, such as whether to fire theweapon or to select and engage a target. Rudimentary autonomous weapons, such as mines,
have been employed for many years, and there has never been a requirement that such weapons
themselves determine that legal requirements are met.
Rather, it is persons who must comply with the law of war. For example, persons may
not use inherently indiscriminate weapons. 105 In addition, in the situation in which a person isusing a weapon that selects and engages targets autonomously, that person must refrain fromusing that weapon where it is expected to result in incidental harm that is excessive in relation to
the concrete and direct military advantage expected to be gained. 106 In addition, the obligationon the person using the weapon to take feasible precautions in order to reduce the risk of civilian
casualties may be more significant when the person uses weapon systems with moresophisticated autonomous functions. 107 For example, such feasible precautions a person is
obligated to take may include monitoring the operation of the weapon system or programming orbuilding mechanisms for the weapon to deactivate automatically after a certain period of time.
6.5.9.4 DoD Policy on Autonomy in Weapon Systems. DoD policy has addressed
the use of autonomy in certain types of weapon systems. 108 Under a 2012 policy, certain types
of autonomous weapon systems require an additional review by senior DoD officials before
formal development and fielding. 109 In addition, the policy establishes rigorous standards for
system design, testing of hardware and software, and training of personnel on the proper use of
autonomous and semi-autonomous systems. Among other things, the policy requires thatmilitary commanders use autonomous and semi-autonomous weapon systems in a mannerconsistent with their design, testing, certification, operator training, and doctrine. 110

105

Refer to § 6.7 (Inherently Indiscriminate Weapons).

106

Refer to § 5.12 (Proportionality – Prohibition on Attacks Expected to Cause Excessive Incidental Harm).

107

Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk ofHarm to Protected Persons and Objects).
108

DOD DIRECTIVE 3000.09, Autonomy in Weapons Systems (Nov. 21, 2012).

109

DOD DIRECTIVE 3000.09, Autonomy in Weapons Systems, ¶4d (Nov. 21, 2012) (“Autonomous or semiautonomous weapon systems intended to be used in a manner that falls outside the policies in subparagraphs 4.c.(1)through 4.c.(3) must be approved by the Under Secretary of Defense for Policy (USD(P)); the Under Secretary of
Defense for Acquisition, Technology, and Logistics (USD(AT&L)); and the CJCS before formal development andagain before fielding in accordance with the guidelines in Enclosure 3, References (b) and (c), and other applicablepolicies and issuances.”).
110

DOD DIRECTIVE 3000.09, Autonomy in Weapons Systems, Enclosure 4 ¶10 (Nov. 21, 2012) (“The Commandersof the Combatant Commands shall: a. Use autonomous and semi-autonomous weapon systems in accordance with354

U.S. domestic law may also be applicable to the development of autonomous functions incertain weapon systems. 111
6.5.10 Non-Lethal (Less-Lethal) Weapons. The law of war does not prohibit or
specifically address non-lethal weapons as a class of weapons. DoD policies regulate non-lethal
weapons and require the legal review of their acquisition, as with other types of weapons. Thereis no requirement to use non-lethal weapons before using lethal weapons against military
objectives.
6.5.10.1 Non-Lethal Weapons – Notes on Terminology. The United States is not a
Party to any law of war treaty that regulates “non-lethal weapons” as a class or category of
weapons. Thus, there is no applicable treaty definition of “non-lethal weapons” for the purposeof applying rules related to such weapons. Accordingly, in practice, the contours of thedefinition of “non-lethal weapons” have been developed as a matter of policy for the purpose of
applying DoD policies with respect to “non-lethal weapons.”
6.5.10.2 Description and Examples of Non-Lethal Weapons. Non-lethal weapons,
sometimes called “less-lethal weapons,” have been defined as weapons, devices, and munitions
that are explicitly designed and primarily employed to incapacitate targeted personnel or materiel
immediately, while minimizing fatalities, permanent injury to personnel, and undesired damage
to property in the target area or environment. 112
Non-lethal weapons are less lethal than conventional military weapons, and they use
means other than gross physical destruction to defeat targets (whether enemy vehicles or
personnel). Non-lethal weapons are intended to have reversible effects on personnel andmateriel.
Non-lethal weapons, however, do not have a zero probability of producing fatalities orpermanent injuries, which is why these weapons are sometimes referred to as less-lethal
weapons. 113 The use of non-lethal weapons may still present risks of serious injury or loss of
this Directive and in a manner consistent with their design, testing, certification, operator training, doctrine, TTPs,
and approval as autonomous or semi-autonomous systems.”).
111

See, e.g., PUBLIC LAW 100-180, § 224 (Dec. 4, 1987) (“No agency of the Federal Government may plan for,fund, or otherwise support the development of command and control systems for strategic defense in the boost or
post-boost phase against ballistic missile threats that would permit such strategic defenses to initiate the directing of
damaging or lethal fire except by affirmative human decision at an appropriate level of authority.”). This statutemay, however, be an unconstitutional intrusion on the President’s authority, as Commander in Chief, to determine
how weapons are to be used in military operations.
112

DOD DIRECTIVE 3000.03E, DoD Executive Agent for Non-Lethal Weapons (NLW), and NLW Policy, Glossary(Apr. 25, 2013) (“NLW. Weapons, devices, and munitions that are explicitly designed and primarily employed toincapacitate targeted personnel or materiel immediately, while minimizing fatalities, permanent injury to personnel,
and undesired damage to property in the target area or environment. NLW are intended to have reversible effects on
personnel and materiel.”).
113

See NATO RESEARCH AND TECHNOLOGY ORGANISATION TECHNICAL REPORT RTO-TR-HFM-073, The Human
Effects of Non-Lethal Technologies, §6-4 (August 2006) (“Terminology options have referred to ‘non-lethal’, ‘lessthan lethal’, or ‘less-lethal’. These first two terms imply that death will not result following the use of theseweapons but plainly, this is not always the case in spite of the reassuring connotation. … The military forces of theNorth Atlantic Treaty Organisation (NATO) use the descriptor ‘non-lethal’. This term in the military context does355

life.
Non-lethal weapons include, but are not limited to: 114•

riot control agents; 115•

blunt impact projectiles, such as stingball grenades, beanbag rounds, and rubber bullets;•

dazzling lasers that cause temporary loss of sight;•

the active denial system, a directed energy weapon that uses millimeter wave energy topenetrate 1/64th of an inch into the surface of the skin, causing a rapid and intense
heating sensation;•

electrical stun guns that incapacitate by disrupting the body’s electrical signals (alsocalled human electro-muscular incapacitation devices or tasers); and•counter-material weapons, such as the vehicle lightweight arresting device or the portablevehicle arresting barrier, that are designed to stop vehicles without harming the occupantsof the vehicles.

6.5.10.3 No Law of War Prohibitions or Restrictions on Non-Lethal Weapons as
Such. The law of war does not prohibit or specifically address non-lethal weapons as a class of
weapons. Rather, such weapons are governed by the general customary rules applicable toweapons and other specific rules, insofar as those rules are applicable. For example, the use ofriot control agents is prohibited as a method of warfare. 116
Weapons designed to use the minimum amount of force and to preserve life are,consistent with the principle of humanity, often less likely to be prohibited or restricted by thelaw of war.
6.5.10.4 DoD Policy Requiring a Legal Review of the Acquisition of Non-Lethal
not imply nil casualties or damage, but is a statement of intent to achieve the lowest achievable probability ofcasualties and physical damage. The term has often been challenged as being inappropriate, but an alternativedescriptor that can provide a better interpretation has yet to be widely adopted within international circles.”).
114

For example, David A. Koplow, Tangled Up in Khaki and Blue: Lethal and Non-Lethal Weapons in Recent
Confrontations, 36 GEORGETOWN JOURNAL OF INTERNATIONAL LAW 703, 727 (2005) (“In 1995, the thirteenth
Marine Expeditionary Unit was assigned the daunting mission of covering the withdrawal of 2,500 United Nations
peacekeepers from chaotic Somalia, while providing protection against native war lords, disorganized military, andparamilitary units. Lieutenant General Anthony C. Zinni boldly decided to include a variety of NLW in the
Marines’ training and equipment for this operation ‘United Shield,’ and his departure from standard operation
procedures garnered a substantial amount of publicity. Among the unconventional tools deployed to Somalia were:
sticky foam, used to create temporary, immediate barriers; caltrops, sharp-edged pyramids that could puncture thetires of vehicles following too closely; flash-bang and stinger grenades; low-kinetic-energy rounds which fired
beanbags or wooden plugs; laser dazzlers and target designators; and chemical riot control agents.”).
115

Refer to § 6.16 (Riot Control Agents).

116

Refer to § 6.16.2 (Prohibition on Use of Riot Control Agents as a Method of Warfare).

356

Weapons. DoD policy has addressed non-lethal weapons. 117 Like lethal weapons, non-lethal
weapons have been subject to legal review to ensure their compliance with U.S. law of war andarms control obligations. 118
If acquisition of a non-lethal weapon is being considered, the command seeking toacquire the weapon should inquire through command or service channels whether the applicablelegal reviews have been conducted.
6.5.10.5 No Requirement to Use Non-Lethal Weapons Before Using Lethal
Weapons Where Deadly Force Is Warranted. Where the use of deadly force is warranted, suchas against enemy combatants, the law of war does not create a legal obligation to use non-lethal
weapons before using lethal weapons. 119 Moreover, under the law of war, the availability of
non-lethal weapons does not create the obligation to use these weapons instead of lethal weapons
or create a higher standard for the use of force. 120
In addition, the availability of non-lethal weapons does not limit the authority to use force
in self-defense. 121
6.6 WEAPONS CALCULATED TO CAUSE SUPERFLUOUS INJURY
It is especially forbidden to use weapons that are calculated to cause superfluous

117

For example, DOD DIRECTIVE 3000.03E, DoD Executive Agent for Non-Lethal Weapons (NLW), and NLW
Policy (Apr. 25, 2013); DOD DIRECTIVE 3000.3, Policy for Non-Lethal Weapons (Jul. 9, 1996).
118

For example, DOD DIRECTIVE 3000.03E, DoD Executive Agent for Non-Lethal Weapons (NLW), and NLW
Policy, Enclosure 2 ¶11 (Apr. 25, 2013) (“The Secretaries of the Military Departments and the Commander,
USSOCOM, through the CJCS: … c. Require, as appropriate, that a legal review of the acquisition of all NLW is
conducted in accordance with Reference (h) and an arms control compliance review is completed in accordance with
DoDD 2060.1 (Reference (l)).”); DOD DIRECTIVE 3000.3, Policy for Non-Lethal Weapons, ¶E6 (Jul. 9, 1996) (“TheSecretaries of the Military Departments and the Commander in Chief of the United States Special Operations
Command shall: ... (b) Ensure that a legal review of the acquisition of all non-lethal weapons is conducted. The
review should ensure consistency with the obligations assumed by the U.S. Government under all applicable
treaties, with customary international law, and, in particular, the laws of war.”).
119

Refer to § 5.4.6 (Force That May Be Applied Against Military Objectives).

120

DOD DIRECTIVE 3000.03E, DoD Executive Agent for Non-Lethal Weapons (NLW), and NLW Policy, ¶3h (Apr.
25, 2013) (“The presence of NLW will not constitute an obligation for their use, or create a higher standard for theuse of force, under the applicable law, rules of engagement, or other rules for the use of force.”); DOD DIRECTIVE
3000.3, Policy for Non-Lethal Weapons, ¶4.5 (Jul. 9, 1996) (“Neither the presence nor the potential effect of nonlethal weapons shall constitute an obligation for their employment or a higher standard for employment of force thanprovided for by applicable law. In all cases, the United States retains the option for immediate use of lethal
weapons, when appropriate, consistent with international law.”).
121

DOD DIRECTIVE 3000.03E, DoD Executive Agent for Non-Lethal Weapons (NLW), and NLW Policy, ¶3g (Apr.
25, 2013) (“The availability of NLW will not limit the commander’s inherent right or obligation to exercise unit
self-defense in response to a hostile act of [sic] demonstrated hostile intent, or to use lethal force when authorized bycompetent authority pursuant to the standing rules of engagement or standing rules for the use of force.”); DOD
DIRECTIVE 3000.3, Policy for Non-Lethal Weapons, ¶4.4 (Jul. 9, 1996) (“The availability of non-lethal weapons
shall not limit a commander’s inherent authority and obligation to use all necessary means available and to take allappropriate action in self-defense.”).

357

injury. 122
6.6.1 Superfluous Injury or Unnecessary Suffering – Notes on Terminology. The
prohibition against weapons calculated to cause superfluous injury or of a nature to cause
unnecessary suffering has been formulated in a variety of ways both in treaties to which theUnited States is a Party and in other treaties. The United States is not a Party to a treaty thatprovides a definition of “superfluous injury.”
Article 23(e) of the 1899 Hague II Regulations prohibits weapons “of a nature to cause
superfluous injury.” Article 23(e) of the 1907 Hague IV Regulations prohibits weapons“calculated to cause unnecessary suffering.” The official texts of both the 1899 and 1907 treaties
are French, and the French text of that paragraph is exactly the same in both treaties, even though
English translations of the treaties are different. The title of the CCW refers to “Weapons WhichMay be Deemed to Be Excessively Injurious,” and the CCW Preamble also recognizes “theprinciple that prohibits the employment in armed conflicts of weapons, projectiles and material
and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.”
Treaties that the United States has not ratified have also included this prohibition. The
Preamble to the 1868 Declaration of St. Petersburg noted that “the employment of arms whichuselessly aggravate the sufferings of disabled men, or render their death inevitable” would be “becontrary to the laws of humanity.” 123 AP I Article 35(2) prohibits the use of “weapons,
projectiles and material and methods of warfare of a nature to cause superfluous injury or
unnecessary suffering.”
Although the various formulations may be regarded as describing the same underlying
prohibition, the phrase “calculated to cause superfluous injury” may be regarded as the moreaccurate translation of the French rule stated in the 1907 Hague IV Regulations and as more
precisely conveying the intent of the rule. 124

122

CCW preamble (recognizing “the principle that prohibits the employment in armed conflicts of weapons,
projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering”);
HAGUE IV REG. art. 23 (“[I]t is especially forbidden … (e) To employ arms, projectiles, or material calculated tocause unnecessary suffering … .”); 1899 HAGUE II REG. art. 23 (prohibits employing “arms, projectiles, or materialof a nature to cause superfluous injury”). Consider AP I art. 35(2) (“It is prohibited to employ weapons, projectiles
and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.”).
123

The Declaration of St. Petersburg, 1868, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 95 (1907).

124

R.R. Baxter, Conventional Weapons Under Legal Prohibitions, 1 INTERNATIONAL SECURITY 42, 43 (1977)(“This last expression [calculated to cause unnecessary suffering] has been the source of a vast amount of confusion
because the English translation from the authentic French text is inaccurate. The expression used in French was
propres a causer des maux superflus, which might be more accurately translated as ‘calculated to cause superfluous(or excessive) injury.’ In the metaphysical atmosphere in which the legality of certain weapons is often discussed,
such niceties count.”); W. Hays Parks, Conventional Weapons and Weapons Reviews, 8 YEARBOOK OF
INTERNATIONAL HUMANITARIAN LAW 55, 86-87 footnote 123 (2005) (“This argument [about superfluous injury or
unnecessary suffering] was based upon a novel ICRC interpretation of the original 1899 Hague language in Art.
23(g) of the Annex prohibiting ‘arms, projectiles or material of a nature to cause superfluous injury’, as compared to
the language in the subsequent 1907 Hague Convention, ‘calculated to cause unnecessary suffering’. The latterphrase is a clearer expression of the intent of governments to focus on design and intended purpose rather than every
remote possibility of weapon injury.”).

358

This manual generally uses the formulation “weapons calculated to cause superfluous
injury” or refers to the “superfluous injury rule.”
6.6.2 Superfluous Injury Rule – the Principle of Humanity. The superfluous injury rule isan application of the principle of humanity in the context of weapons. 125 The superfluous injury
rule prohibits weapons that are designed to increase the injury or suffering of the persons
attacked beyond that justified by military necessity. 126
Thus, the principle of humanity may assist in understanding and applying the rule. 127 For
example, weapons that are regarded as lawful in peacetime or that apply only the minimum force
necessary in order to avoid death or injury to civilians would not be prohibited under thesuperfluous injury rule. 128
6.6.3 Applying the Superfluous Injury Rule. The test for whether a weapon is prohibitedby the superfluous injury rule is whether the suffering caused by the weapon provides no militaryadvantage or is otherwise clearly disproportionate to the military advantage reasonably expectedfrom the use of the weapon. 129 Thus, the suffering must be assessed in relation to the militaryutility of the weapon. 130 Weapons that may cause great injury or suffering or inevitable death
are not prohibited, if the weapon’s effects that cause such injury are necessary to enable users to

Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-AR72, Decision on the Defence Motion for Interlocutory
Appeal on Jurisdiction, ¶119 (Oct. 2, 1995) (explaining that the prohibitions on weapons in the customary law of
war applicable to international and non-international armed conflicts are based on “elementary considerations ofhumanity and common sense”).
125

126

Written Statement of the Government of the United States of America, 28-29, Jun. 20, 1995, I.C.J., Request by theUnited Nations General Assembly for an Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons (“This prohibition was intended to preclude weapons designed to increase the injury or suffering of thepersons attacked beyond that necessary to accomplish the military objective. It does not prohibit weapons that may
cause great injury or suffering if the use of the weapon is necessary to accomplish the military mission. For
example, it does not prohibit the use of anti-tank munitions which must penetrate armor by kinetic-energy or
incendiary effects, even though such weapons can produce severe and painful injuries.”).
127

Refer to § 2.3 (Humanity).

128

Cf. Statement by Secretary Rusk, Mar. 24, 1965, 52 DEPARTMENT OF STATE BULLETIN 529 (Apr. 12, 1965)(defending the legality of riot control agents by explaining that “[w]hat has been involved has been well-known,
traditional agents, in the hands of police forces in many parts of the world. And under the circumstances in which
this gas was used in Viet-Nam, the desire was to use the minimum force required to deal with the situation to avoid
death or injury to innocent people.”). Refer to § 6.16 (Riot Control Agents).
129

WINTHROP, MILITARY LAW & PRECEDENTS 784 (“An illegitimate weapon of war would be one which, indisabling or causing death, inflicted a needless, unusual and unreasonable amount of torture or injury and thedeliberate use of such a weapon would properly be treated as a violation of the laws of war.”); SPAIGHT, WAR
RIGHTS ON LAND 75 (“Hence commanders are quite ready to admit the claims of humanity to the extent of forgoing
the use of any engine of war whose military effect is disproportioned to the suffering it entails.”).
130

Ronald J. Bettauer, Deputy Assistant Legal Adviser, Department of State, Statement at the Conference ofGovernment Experts on Weapons which may Cause Unnecessary Suffering or have Indiscriminate Effects, held in
Lucerne from Sept. 24 to Oct. 18, 1974, Sept. 25, 1974, 1974 DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 707 (“It is the U.S. view that the ‘necessity’ of the suffering must be judged in relation to themilitary utility of the weapons. The test is whether the suffering is needless, superfluous, or disproportionate to themilitary advantage reasonably expected from the use of the weapon.”).

359

accomplish their military missions. 131
6.6.3.1 Military Necessity. The legitimate military necessity that may beconsidered in assessing the legality of a weapon includes its capability to disable or incapacitate
enemy combatants, including, for example:•

the probability of striking a person against whom the weapon is aimed or directed;•

the probability that a person who is struck by the weapon will be incapacitated;•

the speed at which a person who is struck by the weapon will be incapacitated; and•the number of persons the weapon could strike. 132

However, the military utility of the weapon is often broader than its capacity to disable
enemy combatants. 133 It may include other factors, such as: 134•

the destruction or neutralization of military materiel;•

the restriction of military movement;•

the interdiction of military lines of communication;•

the effects on the morale, command and control, stamina, and cohesion of opposing
forces;131

Written Statement of the Government of the United States of America, 32-33, Jun. 20, 1995, I.C.J., Request by theUnited Nations General Assembly for an Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons (“This argument is based on a misconception of the St. Petersburg principle, which was directed at antipersonnel weapons that were deliberately designed to kill when that design feature was not needed to disable enemy
combatants. This does not mean that it is unlawful to use a weapon that has a high probability of killing persons in
its immediate vicinity if that design feature is required to fulfill a legitimate military mission. For example, anylarge high-explosive or fragmentation weapon has a high probability of killing exposed persons within a certain
distance of the detonation. An effective anti-submarine, anti-aircraft or anti-tank weapon has a high probability ofkilling the crews of these vehicles. This fact does not make these weapons unlawful, since these lethal effects arenecessary for the effective accomplishment of their legitimate mission.”).
132

SPAIGHT, AIR POWER AND WAR RIGHTS 203 (“[A]lthough a shell [fired by a cannon] may kill or mutilate—andmutilate horribly—only one man, it may also be compensated by the possible ‘bag’ of a projectile of widely
radiating effect.”).

133

BOTHE, PARTSCH, & SOLF, NEW RULES 196 (AP I art. 35, ¶2.3.3) (“The problem cannot be simplified by restating
the preamble of the 1968 [sic] St. Petersburg Declaration that to weaken the enemy’s military forces it is sufficient
to disable the greatest possible number of men (i.e., to render enemy combatants hors de combat). This test is valid
only for weapons designed for antipersonnel purposes. However, weapons are designed and produced to be used tofulfill a variety of military requirements other than merely disabling enemy combatants.”).

134

BOTHE, PARTSCH, & SOLF, NEW RULES 196-97 (AP I art. 35, ¶2.3.3) (“Some examples of such requirements
include the destruction or neutralization of military material, restriction of military movement, the interdiction of
military lines of communications, the weakening of the enemy’s war making resources and capabilities, and theenhancement of the security of friendly forces. … Factors which must also be taken into account are theavailability of alternate weapon systems (and their effects), the logistics of providing the weapon and its ammunitionat the place where it is to be used when needed, and the security of the troops involved.”).

360

•

the weakening of the enemy’s war-making resources and capabilities;•

the enhancement of the security of forces employing the weapon or other friendly forces;•

the effectiveness of the weapon against particular types of targets;•the availability of alternative weapons and their effects;•

the logistics of providing the weapon and its ammunition where and when it is needed;•

the amount of ammunition required;•the cost of using the weapon in terms of time, money, and other resources;•

the efficacy of the weapon compared to the adversary’s defenses;•

the efficacy of the weapon in light of the weapons and tactics of the adversary; or•

the risk to the civilian population when the weapon is used for its intended purposes. 135

These other factors can justify weapons that inflict injuries on enemy combatants that are muchgreater than the minimum needed to render them hors de combat. For example, an artillery shell
designed to destroy field fortifications or heavy material causes injuries to enemy personnel thatare much greater than those necessary to make enemy combatants hors de combat. However, theartillery shell is not prohibited because these military advantages are not clearly disproportionate
to the injuries it inflicts. 136
6.6.3.2 Suffering and Injury Inflicted. The superfluous injury rule addresses theharm inflicted upon the persons who are struck by the weapon. The types of harm addressed by
the superfluous rule include: mortality rates, the painfulness of wounds, the severity of wounds,
and the ease with which they may be treated (including the incidence of permanent damage ordisfigurement). 137 Weapons that have been modified only for the purpose of increasing these135

Christopher Greenwood, Legal Aspects of current Regulations, KEYNOTE SPEECHES, THIRD INTERNATIONAL
WORKSHOP ON WOUND BALLISTICS (Thun, Switzerland, Mar. 28-29, 2001) (“Moreover, there are circumstances,
particularly in street warfare and in counter terrorist operations where it may be necessary to make a trade, in effect,
between the principle of the protection of civilian life and the principle of ‘unnecessary suffering’ to combatants.
What I would like to suggest is that where that trade has to be made – and I accept that it is not one which has to bemade in all, or even most types of combat – one cannot regard suffering as unnecessary if it is inflicted for the
purpose of protecting the civilian population. In other words, if the civilian population’s protection is enhanced by
the use of a particular weapon, then the adverse effects of that weapon on combatants cannot properly be regarded as
unnecessary.”).
136

BOTHE, PARTSCH, & SOLF, NEW RULES 196-97 (AP I art. 35, ¶2.3.3) (“[A]n artillery projectile or missile
designed to destroy field fortifications or heavy material may be expected to cause injuries to personnel in thevicinity of the target which would be more severe than necessary to render these combatants hors de combat, but noauthority has questioned the lawfulness of such projectiles despite the gravity of the incidental effect on
personnel.”).

137

See INTERNATIONAL COMMITTEE OF THE RED CROSS, CONFERENCE OF GOVERNMENT EXPERTS ON THE USE OF
CERTAIN CONVENTIONAL WEAPONS: LUCERNE, SEPT. 24- OCT. 18, 1974, 8 (¶23) (Geneva, 1975) (“The concept of361

types of harms for persons who have already been incapacitated are prohibited by thesuperfluous injury rule. 138
6.6.3.3 Clearly Disproportionate. A weapon is only prohibited by the superfluous
injury rule if the suffering it inflicts is clearly disproportionate to its military utility. This
excessiveness should be assessed in light of the State practice and opinio juris and the principleof humanity.
Because of the difficulty of comparing the military necessity for the weapon and thesuffering it is likely to cause, a weapon is only prohibited if the suffering is clearly or manifestly
disproportionate to the military necessity. 139 The suffering likely to result from the use of theweapon and its military effectiveness are likely to be difficult to assess, much less to compare to
one another. 140
Like other determinations of customary international law, whether a weapon is calculated
to cause superfluous injury is to be determined in light of the practice of States, and in particular,
whether States have declined to use the weapon or similar weapons because they are believed to‘injury’ or ‘suffering’ evoked some further comment. It was generally considered that this comprised such factors
as mortality rates, the painfulness or severeness of wounds, or the incidence of permanent damage ordisfigurement.”).
138

Refer to § 6.6.4 (Weapons Modified for the Purpose of Aggravating the Harm Inflicted on Incapacitated Persons).

139

BOTHE, PARTSCH, & SOLF, NEW RULES 197 (AP I art. 35, ¶2.3.3) (“Because of the impossibility of quantifying
either side of the equation it is important that military advantage be qualified by such words as ‘definite’, and alsothat the disproportionate suffering be ‘manifest’ or ‘clear’.”). See also W. Hays Parks, Special Assistant for Law of
War Matters, Office of The Judge Advocate General, U.S. Army, Joint Service Combat Shotgun Program, THE
ARMY LAWYER 16, 18 (Oct. 1997) (“In determining whether a weapon causes superfluous injury, a balancing test isapplied between the force dictated by military necessity to achieve a legitimate objective vis-a-vis injury that may beconsidered superfluous to the achievement of the stated or intended objective (in other words, whether the suffering
caused is out of proportion to the military advantage to be gained). The test is not easily applied; a weapon that canincapacitate or wound lethally at, for example, 300 meters or longer ranges may result in a greater degree ofincapacitation or greater lethality at lesser ranges. For this reason, the degree of ‘superfluous’ injury must be clearly
disproportionate to the intended objective(s) for development of the weapon (that is, the suffering must outweighsubstantially the military necessity for the weapon).”); W. Hays Parks, Chief, International Law Branch,
International Affairs Division, Office of the Judge Advocate General, U.S. Army, Memorandum re: Sniper Use ofOpen-Tip Ammunition, Oct. 12, 1990, reprinted in THE ARMY LAWYER 86, 87 (Feb. 1991) (similar).
140

BOTHE, PARTSCH, & SOLF, NEW RULES 196 (AP I art. 35, ¶2.3.3) (“In applying para. 2 of Art. 35, the suffering or
injury caused by a weapon must be judged in relation to the military utility of the weapon. The test is whether thesuffering is needless, superfluous, or manifestly disproportionate to the military advantage reasonably expected fromthe use of the weapon. On the humanitarian side of the equation against which military advantage is to be balanced
are such factors as the painfulness or severity of wounds, mortality rates, and the incidence of permanent damage ordisfigurement and the feasibility of treatment under field conditions. Neither element of the equation can be taken in
isolation. All such comparative judgments logically lead to an inquiry into how much suffering various weaponscause and whether available alternate weapons can achieve the same military advantage effectively but cause lesssuffering. The comparison of, and balancing between, suffering and military effectiveness is difficult in practicebecause neither side of the equation is easy to quantify. Inevitably, the assessment will be subjective even whensufficient agreed factual data are available on wound effects and military effectiveness.”).

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have this effect. 141 The consideration of the military utility of the weapon and the suffering theweapon inflicts should be compared to other destructive mechanisms that States have used orretained for use and consider to be lawful.
A State’s acceptance of a treaty prohibition against a weapon should not be understood asnecessarily reflecting that State’s conclusion that the weapon is calculated to cause superfluous
injury. For example, the CCW and its Protocols generally do not reflect a conclusion that theweapons prohibited or restricted by them are calculated to cause superfluous injury. 142 On theother hand, a prohibition or restriction in a treaty can be relevant in determining that a weapon is
not calculated to cause superfluous injury. For example, the CCW Amended Mines Protocol
prohibits mines, booby-traps, and other devices that are designed or of a nature to cause
unnecessary suffering. 143 Thus, this prohibition implicitly recognizes that not all mines, boobytraps, and other devices are calculated to cause superfluous injury. 144 In addition, even if a treaty
that declared that certain weapons were calculated to cause superfluous injury, such treaty
language would not necessarily mean that the weapon was prohibited by customary internationallaw. For example, specially affected States might decline to ratify the treaty and decide to retain
the right to use the weapon. 145
6.6.3.4 Superfluous Injury Rule – the Circumstances to Be Assessed and Design
Intent. In determining a weapon’s legality, the weapon’s planned uses and the normal
circumstances in which it would be used should be considered. 146 It is not necessary to assess all
possible uses or all possible circumstances.
6.6.4 Weapons Modified for the Purpose of Aggravating the Harm Inflicted on
Incapacitated Persons. Weapons that have been modified for the purpose of aggravating theharm inflicted upon incapacitated persons are weapons that are prohibited by the superfluous
141

1956 FM 27-10 (Change No. 1 1976) ¶34b (“What weapons cause ‘unnecessary injury’ [within the meaning ofHague IV Reg. art. 23(e)] can only be determined in light of the practice of States in refraining from the use of agiven weapon because it is believed to have that effect.”).
142

Refer to § 19.21.1.3 (CCW and Customary International Law).

143

Refer to § 6.12.4.1 (Mines, Booby-Traps, and Other Devices Calculated to Cause Superfluous Injury).

144

Article-by-Article Analysis of CCW Amended Mines Protocol, 11, Enclosure A to Warren Christopher, Letter ofSubmittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 11 (CCW Amended
Mines Protocol art. 3(3) “reiterates a proscription already in place as a matter of customary international law
applicable to all weapons. It also implicitly makes clear that mines, booby-traps and other devices are not, per se, ofa nature to cause unnecessary suffering, for if that were considered to be the case, no such rule would be necessary
and they would be prohibited entirely.”).
145

Refer to § 1.8.2.3 (Specially Affected States).

146

WILLIAM BOOTHBY, WEAPONS AND THE LAW OF ARMED CONFLICT 62 (2009) (“So, in the context of superfluous
injury and unnecessary suffering, the comparator [or excessiveness] must be determined by ‘the generic purpose or
purposes for which the weapon has been designed or adapted, or the purpose or purposes for which that weapon will
generally be used’. The word ‘generic’ is used here to show that we are specifically not referring to the use of theweapon on a particular occasion in prosecution of a specific mission. The word ‘generally’ indicates that it is thenormal applications of the weapon that are to be considered, not some unusual application, or misapplication, of it
which lies outside the scope of purposes for which it was procured or adapted.”).

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injury rule. 147
For example, adding poison to bullets or other substances to weapons for the purpose ofincreasing the pain caused by the wound, to make wounds more difficult to treat, or to makedeath inevitable, would be prohibited. Such a substance would not increase the military utility of
the weapon to incapacitate the enemy (i.e., it would have no corresponding military advantage);thus, the additional injury would be superfluous when compared to the injury caused by theweapon without such a substance.
Weapons that have been modified are readily assessed under the superfluous injury rulebecause the unmodified version of the weapon provides a clear point of comparison. It isdifficult to compare, in the abstract, the military utility of a weapon against the suffering it
causes. But, by comparing an existing weapon to a proposed modification, one can evaluate
more easily whether the proposed changes are warranted by legitimate military reasons (e.g., toincrease the ability of the weapon to incapacitate the enemy) or illegitimate reasons (e.g.,cruelty) because, in considering a modification to the weapon, one would expect that a numberof relevant factors would be the same as between the existing weapon and the proposed
modification.
6.7 INHERENTLY INDISCRIMINATE WEAPONS
Inherently indiscriminate weapons, i.e., weapons that are incapable of being used inaccordance with the principles of distinction and proportionality, are prohibited. Such weapons
include weapons that are specifically designed to conduct attacks against the civilian population
as well as weapons that, when used, would necessarily cause incidental harm that is excessive
compared the military advantage expected to be gained from their use.
6.7.1 Inherently Indiscriminate Weapons – Principles of Distinction and Proportionality.
The prohibition against inherently indiscriminate weapons results from the principles of
distinction and proportionality. 148 Attacks must be conducted in accordance with the principles
of distinction and proportionality. 149 Consequently, a weapon that, when used, would
necessarily violate these rules, would be prohibited. 150

147

Consider The Declaration of St. Petersburg, 1868, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 95(1907) (considering that it would “be contrary to the laws of humanity” to use “arms which uselessly aggravate thesufferings of disabled men, or render their death inevitable;”).

148

Refer to § 2.5 (Distinction); § 2.4 (Proportionality).

149

Refer to § 5.5 (Discrimination in Conducting Attacks); § 5.12 (Proportionality – Prohibition on Attacks Expected
to Cause Excessive Incidental Harm).
150

See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 257 (¶78) (“Thecardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is
aimed at the protection of the civilian population and civilian objects and establishes the distinction between
combatants and non-combatants; States must never make civilians the object of attack and must consequently neveruse weapons that are incapable of distinguishing between civilian and military targets.”); GREENSPAN, MODERNLAW OF LAND WARFARE 359 (“[I]t must be borne in mind that indiscriminate bombardment of the civilian
population is prohibited, so that weapons which must necessarily have that effect when used are also illegal.”).

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Few weapons have been understood to be inherently indiscriminate weapons. 151 Thismay be the case because weapons that are more accurate and precise are more militarily
effective; the military and humanitarian interests coincide. 152 On the other hand, the few
weapons that have been understood to violate this rule have been directed at illegitimate
objectives, such as attacking and terrorizing the civilian population. 153
6.7.2 Inherently Indiscriminate Weapons – Circumstances to Be Assessed and Design
Intent. The test for whether a weapon is inherently indiscriminate is whether its use necessarily
violates the principles of distinction and proportionality, i.e., whether its use is expected to beillegal in all circumstances.
Special consideration should be given to the planned or intended uses of the weapon, i.e.,
those that are reasonably foreseeable. For example, a practitioner conducting a legal review ofthe proposed acquisition or procurement of a weapon should consider the uses of the weapon thatare planned and reflected in the design documents. Practitioners should advise if the planned
uses of the weapon are not consistent with the principles of distinction and proportionality, witha view towards ensuring that either the weapon or the planned uses are modified accordingly.
The wide range of circumstances in which weapons can lawfully be used should also be
considered before concluding that a weapon is prohibited as inherently indiscriminate. For
example, in some circumstances, an area of land can be a military objective. 154 Thus, even if itwould not be possible for the weapon to be directed against enemy combatants, if the weapon
could be directed at specific areas, it would be unlikely that the weapon would be consideredinherently indiscriminate. As another example, in some circumstances, feasible precautions canmitigate the incidental harm expected to be caused so that it is not excessive. 155 Whether suchprecautions could be taken to mitigate the expected incidental harm caused by the weapon underreview should be considered before concluding that a weapon is prohibited as inherently
indiscriminate.
6.7.3 Weapons Designed to Conduct Attacks Against the Civilian Population. Inherently
151

Christopher Greenwood, Legal Aspects of current Regulations, KEYNOTE SPEECHES, THIRD INTERNATIONAL
WORKSHOP ON WOUND BALLISTICS (Thun, Switzerland, Mar. 28-29, 2001) (“There are virtually no cases of
weapons which are inherently indiscriminate. The United States Naval Commander’s Handbook, one of the mostmodern texts and an important piece of State practice, gives in its annotations an illustration of an inherently
indiscriminate weapon – a proposal during the Second World War to tie tiny incendiary bombs around the necks ofbats. The bats would then be released from aircraft over enemy targets, would glide down into the trees and into therafters of buildings and set fire to those buildings when the incendiaries exploded. If that is the best example thatcan be given of an inherently indiscriminate weapon, there are not very many inherently indiscriminate weapons inexistence.”).
152

ICRC AP COMMENTARY 621 (¶1958) (“It should be noted that most armies endeavour to use accurate weapons as
attacks which do not strike the intended objective result in a loss of time and equipment without giving acorresponding advantage. … Here the military interests and humanitarian requirements coincide.”).

153

Refer to § 6.7.3 (Weapons Designed to Conduct Attacks Against the Civilian Population).

154

Refer to § 5.6.8.4 (Examples of Military Objectives – Places of Military Significance).

155

Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk ofHarm to Protected Persons and Objects).

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indiscriminate weapons include those that are specifically designed to be used to conduct attacks
against the civilian population, including attacks to terrorize the civilian population. For
example, Japanese bombs attached to free-floating, long-range balloons used during World War
II were unlawful for this reason. 156 Also, German long-range rockets without guidance systems
used during World War II were similarly illegal. 157
6.7.4 Weapons That Necessarily Cause Excessive Incidental Harm. Indiscriminate
weapons also include weapons whose anticipated incidental effects are necessarily excessive
compared to the military advantages expected to be gained from using the weapon. 158 To beclear, the principle of proportionality does not prohibit the use of weapons whose destructive
force cannot be limited to a specific military objective. 159 Such weapons may be used when theiruse is required against a target of sufficient military importance to outweigh the incidental harm

156

For example, ROBERT C. MIKESH, JAPAN’S WORLD WAR II BALLOON BOMB ATTACKS ON NORTH AMERICA 1(1973) (“In a desperate attempt to find a means of reprisal [for the Doolittle raid], the Japanese conceived a method
to strike directly at the American continent. Their plan was simple; launch balloons with incendiary andantipersonnel bombs attached, let them travel across the Pacific with the prevailing winds, and drop on American
cities, forests, and farmlands. It took over two years to design the balloons, bombs, and automatic dropping
mechanism. … Finally, on 3 November 1944, the first of more than nine thousand bomb-bearing balloons was
released. It is estimated that nearly one thousand of the death-dealing balloons must have reached the North
American continent.”).
157

For example, SPAIGHT, AIR POWER AND WAR RIGHTS 214-15 (“As used by the Germans in 1944-45, [the V-2
long-range rocket] was simply a crude instrument of random bombardment, utterly lacking in precision, and its
military value was nil. While such a weapon is not banned in terms by any international convention, the use of it
could not be regarded as compatible with the observance of certain rules which are the subject of definite
international agreement, such as those forbidding the bombardment ‘by any means’ of undefended towns andvillages, and those enjoining the sparing, as far as possible, of ‘buildings dedicated to religious, art, science or
charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected.’ … The
flying [V-1] bomb is another abominable projectile which might well be prohibited at the same time. It is, again, aweapon which cannot really be aimed at all.”).
158

1976 AIR FORCE PAMPHLET 110-31 ¶6-3c (“In addition, some weapons, though capable of being directed only at
military objectives, may have otherwise uncontrollable effects so as to cause disproportionate civilian injuries ordamage. Biological warfare is a universally agreed illustration of such an indiscriminate weapon. Uncontrollable
effects, in this context, may include injury to the civilian population of other states as well as injury to an enemy’s
civilian population. Uncontrollable refers to effects which escape in time or space from the control of the user as tonecessarily create risk to civilian persons or objects excessive in relation to the military advantage anticipated.
International law does not require that a weapon’s effects be strictly confined to the military objectives against
which it is directed, but it does restrict weapons whose foreseeable effects result in unlawful disproportionate injury
to civilians or damage to civilian objects.”).
159

J. Fred Buzhardt, General Counsel, Department of Defense, Letter to Senator Edward Kennedy, Sept. 22, 1972,
reprinted in 67 AJIL 122, 124 (1973) (“The existing laws of armed conflict do not prohibit the use of weapons
whose destructive force cannot be limited to a specific military objective. The use of such weapons is notproscribed when their use is necessarily required against a military target of sufficient importance to outweighinevitable, but regrettable, incidental casualties to civilians and destruction of civilian objects.”). See also Edward
Cummings, Head of the U.S. Delegation to CCW Group of Government Experts, Statement, Jul. 17, 2002 (“Onproportionality. As the paper noted, the law of armed conflict does not require the effects of weapons to be limited
such that they cause no civilian casualties. This would, unfortunately, be impossible. It does however, as Professor
Greenwood points out, require compliance with the principle of proportionality with respect to the use of weapons
and thus requires an assessment of the risks posed to civilians in the context of the military advantage hoped for.”).

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that is expected to result. 160
As with the superfluous injury rule, in assessing whether weapons necessarily cause
excessive incidental harm, it will be important to consider whether the practice of States
demonstrates that they are prohibited as such. 161 For example, the United States regards nuclear
weapons not to be inherently disproportionate weapons. 162
Weapons that necessarily cause excessive incidental harm include “blind” or essentiallyrandom weapons that are incapable of being controlled, and thus, cannot, with any degree ofcertainty, be directed against a military objective. 163 The expected incidental harm from the useof such weapons outweighs the little, if any, military utility of such weapons. 164
Weapons that necessarily cause excessive incidental harm also include weapons whose
uncontrollable nature is such that, even when directed against military objectives, they otherwise
are expected invariably to cause excessive incidental harm. For example, using communicablediseases such as the plague as weapons has been prohibited, in part because such use would
almost inevitably cause excessive incidental harm among the civilian population compared to themilitary advantages from their use. 165
6.8 POISON, POISONED WEAPONS, POISONOUS GASES, AND OTHER CHEMICAL WEAPONSThe use of poison, poisoned weapons, poison and asphyxiating gases, and other chemical
weapons is prohibited.
6.8.1 Poison and Poisoned Weapons. It is especially forbidden to use poison or poisoned
weapons. 166 For example, poisoning the enemy’s food or water supply is prohibited. 167

160

Refer to § 5.12 (Proportionality – Prohibition on Attacks Expected to Cause Excessive Incidental Harm).

161

Refer to § 6.6.3.3 (Clearly Disproportionate).

162

Written Statement of the Government of the United States of America, 23, Jun. 20, 1995, I.C.J., Request by theUnited Nations General Assembly for an Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons (“Whether an attack with nuclear weapons would be disproportionate depends entirely on thecircumstances, including the nature of the enemy threat, the importance of destroying the objective, the character,size and likely effects of the device, and the magnitude of the risk to civilians. Nuclear weapons are not inherently
disproportionate.”).
163

1976 AIR FORCE PAMPHLET 110-31 ¶6-3c (“Indiscriminate weapons are those incapable of being controlled,
through design or function, and thus they can not, with any degree of certainty be directed against military
objectives.”); BOTHE, PARTSCH, & SOLF, NEW RULES 305 (AP I art. 51, ¶2.5.2.2) (“The provision of subpara. 4.b. tomethods which cannot be directed at a specific military objective prohibits ‘blind’ weapons which cannot, with any
reasonable assurance, be directed against a military objective. Attaching incendiary or antipersonnel bombs to free
floating balloons, or using long range missiles with only a rudimentary guidance system are examples of this type of
weapon.”).
164

1976 AIR FORCE PAMPHLET 110-31 ¶6-3c (“Use of such essentially unguided weapons could be expected tocause unlawful excessive injury to civilians and damage to civilian objects.”).
165

Refer to § 6.9.1 (Biological Weapons – Prohibition on Use as a Method of Warfare).

166

See HAGUE IV REG. art. 23(a) (it is especially forbidden “[t]o employ poison or poisoned weapons;”); 1899
HAGUE II REG. art. 23(a) (same); LIEBER CODE art. 16 (military necessity “does not admit of the use of poison in any

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Similarly, adding poison to weapons is prohibited. The rule against poison and poisoned
weapons reflected in the 1899 Hague II Regulations has been interpreted not to include poisongas weapons that were developed during the modern era, which were subsequently prohibited. 168
Poisons are understood to be substances that cause death or disability with permanent
effects when, in even small quantities, they are ingested, enter the lungs or bloodstream, or touch
the skin. 169
The longstanding prohibition against poison is based on: (1) their uncontrolled character;(2) the inevitability of death or permanent disability; and (3) the traditional belief that it istreacherous to use poison. 170
6.8.1.1 Designed to Injure by Poison. This prohibition on poison applies toweapons that are designed to injure or kill by poison. It does not apply to weapons that injure orcause destruction by other means that also produce toxic byproducts. 171
6.8.1.2 Death or Permanent Disability to Persons. The prohibition on using
poison applies to use against human beings. 172 Thus, the prohibition on the use of poison has
been understood not to prohibit the use of chemical herbicides that are harmless to humanway,”); LIEBER CODE art. 70 (“The use of poison in any manner, be it to poison wells, or food, or arms, is wholly
excluded from modern warfare. He that uses it puts himself out of the pale of the law and usages of war.”).
167

1958 UK MANUAL ¶112 (“Water in wells, pumps, pipes, reservoirs, lakes, rivers, and the like, from which theenemy may draw drinking water, must not be poisoned or contaminated. The poisoning or contamination of water is
not made lawful by posting up a notice informing the enemy that the water has been thus polluted. There is,however, no rule to prevent measures being taken to dry up springs and to divert rivers and aqueducts.”).
168

WILLIAM H. BOOTHBY, WEAPONS AND THE LAW OF ARMED CONFLICT 122 (2009) (“The Hague Peace
Conference of 1899 tackled the problem [of poison gas attacks]. The delegates at that conference made no direct
association between poison, which they considered to be an ancient and barbarous form of warfare, and poison gas,
which was seen as a novel weapon the product of scientific advance.”).
169

1976 AIR FORCE PAMPHLET 110-31 ¶6-4f (“Poisons are biological or chemical substances causing death or
disability with permanent effects when, in even small quantities, they are ingested, enter the lungs or bloodstream, or
touch the skin.”).
170

1976 AIR FORCE PAMPHLET 110-31 ¶6-4f (“The longstanding customary prohibition against poison is based on
their uncontrolled character and the inevitability of death or permanent disability as well as on a traditional belief
that it is treacherous to use poison.”).
171

Written Statement of the Government of the United States of America, 24, Jun. 20, 1995, I.C.J., Request by theUnited Nations General Assembly for an Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons (“This prohibition was established with particular reference to projectiles that carry poison into the body ofthe victim. It was not intended to apply, and has not been applied, to weapons that are designed to injure or cause
destruction by other means, even though they also may create toxic byproducts. For example, the prohibition on
poison weapons does not prohibit conventional explosives or incendiaries, even though they may produce dangerous
fumes. By the same token, it does not prohibit nuclear weapons, which are designed to injure or cause destruction
by means other than poisoning the victim, even though nuclear explosions may also create toxic radioactive
byproducts.”).
172

1956 FM 27-10 (Change No. 1 1976) ¶37b (explaining that the prohibition against poison or poison weapons in
the Hague IV Regulations “prohibits the use in war of poison or poisoned weapons against human beings.”).

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beings. 173 Other rules, however, may apply to the use of herbicides. 174
6.8.2 Asphyxiating, Poisonous, or Other Gases, and All Analogous Liquids, Materials, orDevices. It is prohibited to use in war asphyxiating, poisonous, or other gases, and all analogous
liquids, materials, or devices. 175 The United States has determined that this rule is part ofcustomary international law. 176
Although the rule appears quite broad, it has been understood only to apply to the use ofgases that are designed to kill or injure human beings. 177 Thus, herbicides and riot control agents173

J. Fred Buzhardt, General Counsel, Department of Defense, Letter to Chairman Fulbright, Senate Committee on
Foreign Relations, Apr. 5, 1971, 10 INTERNATIONAL LEGAL MATERIALS 1300, 1302 (1971) (explaining the DoD
view that it does “not regard chemical herbicides, harmless to man, as poison or poisoned weapons, for if they had
been so considered, their use against crops intended solely for the consumption by the enemy’s armed forces would
clearly have been prohibited by Article 23(a) of the Hague Regulations.”).
174

Refer to § 6.17 (Herbicides).

175

1925 GENEVA GAS AND BACTERIOLOGICAL PROTOCOL (“Whereas the use in war of asphyxiating, poisonous orother gases, and of all analogous liquids materials or devices, has been justly condemned by the general opinion of
the civilised world; and Whereas the prohibition of such use has been declared in Treaties to which the majority ofPowers of the world are Parties; and To the end that this prohibition shall be universally accepted as part ofInternational Law, binding alike the conscience and the practice of nations; DECLARE: That the High Contracting
Parties, so far as they are not already Parties to Treaties prohibiting such use, accept this prohibition, agree to extend
this prohibition to the use of bacteriological methods of warfare and agree to be bound as between themselves
according to the terms of this declaration.”). Consider Treaty in Relation to the Use of Submarines and Noxious
Gases in Warfare, art. 5, Feb. 6, 1922, reprinted in 16 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 57, 59 (1922)(“The use in war of asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices, having
been justly condemned by the general opinion of the civilized world and a prohibition of such use having been
declared in treaties to which a majority of the civilized Powers are parties, The Signatory Powers, to the end that thisprohibition shall be universally accepted as a part of international law binding alike the conscience and practice ofnations, declare their assent to such prohibition, agree to be bound thereby as between themselves and invite allother civilized nations to adhere thereto.”); Declaration to Abstain From the Use of Projectiles the Object of WhichIs the Diffusion of Asphyxiating or Deleterious Gases, Jul. 29, 1899, reprinted in 1 AJIL SUPPLEMENT: OFFICIALDOCUMENTS 157 (1907) (“The Contracting Powers agree to abstain from the use of projectiles the object of which isthe diffusion of asphyxiating or deleterious gases.”).
176
Franklin D. Roosevelt, Statement Warning the Axis Against Using Poison Gas, Jun. 8, 1943 (“From time to timesince the present war began there have been reports that one or more of the Axis powers were seriously
contemplating use of poisonous or noxious gases or other inhumane devices of warfare. … Use of such weapons
has been outlawed by the general opinion of civilized mankind.”); Myron C. Cramer, The Judge Advocate General,
U.S. Army, Memorandum re: Destruction of Crops by Chemicals, ¶2, Mar. 1945, 10 INTERNATIONAL LEGAL
MATERIALS 1304, 1305 (1971) (noting that “[a]n exhaustive study of the source materials, however, warrants theconclusion that a customary rule of international law has developed by which poisonous gases and those causing
unnecessary suffering are prohibited”).
177

Myron C. Cramer, The Judge Advocate General, U.S. Army, Memorandum re: Destruction of Crops by
Chemicals, ¶3, Mar. 1945, 10 INTERNATIONAL LEGAL MATERIALS 1304, 1305 (1971) (“Nevertheless, the scope of
this prohibition is restricted. It does not constitute a complete ban on all gases and chemical substances. A
distinction exists between the employment of poisonous and deleterious gases against enemy human beings, and theuse of chemical agents to destroy property, such as natural vegetation, crop cultivations, and the like. … The true
motive behind the movement to outlaw poison gas is that it is considered a barbarous and inhumane weapon against
human beings, because it inflicts unnecessary suffering upon them.”).

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are not prohibited by this rule. 178 In addition, the rule is understood only to prohibit weapons
whose prime, or even exclusive, effect is to poison or asphyxiate. 179 Thus, for example, smoke,
flame, napalm, conventional explosives, and nuclear weapons are not covered by this rule, eventhough these weapons may produce asphyxiating or poisonous byproducts. 180
6.8.3 Chemical Weapons. Chemical weapons are subject to a number of prohibitions.
6.8.3.1 Definition of Chemical Weapons. Under the Chemical Weapons
Convention, chemical weapons mean the following, together or separately:(a) Toxic chemicals and their precursors, except where intended for purposes notprohibited under this Convention, as long as the types and quantities are
consistent with such purposes;(b) Munitions and devices, specifically designed to cause death or other harmthrough the toxic properties of those toxic chemicals specified in subparagraph(a), which would be released as a result of the employment of such munitions anddevices;(c) Any equipment specifically designed for use directly in connection with theemployment of munitions and devices specified in subparagraph (b). 181
Toxic chemicals refer to any chemical that through its chemical action on life processes
can cause death, temporary incapacitation, or permanent harm to humans or animals. This
includes all such chemicals, regardless of their origin or of their method of production, andregardless of whether they are produced in facilities, in munitions, or elsewhere. 182 Chemicals
178

William P. Rogers, Letter of Submittal, Aug. 11, 1970, MESSAGE FROM THE PRESIDENT TRANSMITTING THE 1925
GENEVA GAS AND BACTERIOLOGICAL PROTOCOL VI (“It is the United States understanding of the Protocol that it
does not prohibit the use in war of riot-control agents and chemical herbicides.”).
179

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 248 (¶55) (“The Court
will observe that the Regulations annexed to the Hague Convention IV do not define what is to be understood by‘poison or poisoned weapons’ and that different interpretations exist on the issue. Nor does the 1925 Protocol
specify the meaning to be given to the term ‘analogous materials or devices’. The terms have been understood, inthe practice of States, in their ordinary sense as covering weapons whose prime, or even exclusive, effect is topoison or asphyxiate. This practice is clear, and the parties to those instruments have not treated them as referring to
nuclear weapons.”).
180

See William P. Rogers, Letter of Submittal, Aug. 11, 1970, MESSAGE FROM THE PRESIDENT TRANSMITTING THE
1925 GENEVA GAS AND BACTERIOLOGICAL PROTOCOL VI (“Smoke, flame, and napalm are also not covered by theProtocol.”); Written Statement of the Government of the United States of America, 25, Jun. 20, 1995, I.C.J., Request
by the United Nations General Assembly for an Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons (“Once again, the [1925 Geneva Gas and Bacteriological] Protocol does not prohibit conventional
explosives or incendiary weapons, even though they may produce asphyxiating or poisonous byproducts, and it
likewise does not prohibit nuclear weapons.”); GREENSPAN, MODERN LAW OF LAND WARFARE 359 (“The use of
smoke for smoke screens concealing movements and operations could not be considered an infringement of the law
against gas warfare.”).
181

CHEMICAL WEAPONS CONVENTION art. 2(1).

182

CHEMICAL WEAPONS CONVENTION art. 2(2) (“‘Toxic Chemical’ means: Any chemical which through its
chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or370

that only cause harm to plants, such as herbicides, are not covered. 183 In addition, toxic
chemicals intended for purposes not prohibited by the Chemical Weapons Convention are also
excluded, so long as they are of a type and quantity consistent with these purposes that are notprohibited. 184
Precursor means any chemical reactant (including any key component of a binary or
multicomponent chemical system) that takes part at any stage in the production by whatever
method of a toxic chemical. 185 Key component of a binary or multicomponent chemical systemmeans the precursor that plays the most important role in determining the toxic properties of the
final product and reacts rapidly with other chemicals in the binary or multicomponent system. 186
Equipment specifically designed for use directly in connection with the employment ofsuch munitions and devices only applies to equipment designed solely for use with chemical
weapons and does not, for example, include equipment that is designed also for purposes that are
not prohibited. 187
6.8.3.2 Prohibitions With Respect to Chemical Weapons. Chemical weapons are
subject to a number of prohibitions. It is prohibited:•

to use chemical weapons;•

to develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer,

animals. This includes all such chemicals, regardless of their origin or of their method of production, and regardlessof whether they are produced in facilities, in munitions or elsewhere. (For the purpose of implementing thisConvention, toxic chemicals which have been identified for the application of verification measures are listed in
Schedules contained in the Annex on Chemicals.)”). See also Article-by-Article Analysis of the Chemical Weapons
Convention, 9, Attachment to Peter Tarnoff, Acting, Letter of Submittal, Nov. 20, 1993, MESSAGE FROM THE
PRESIDENT TRANSMITTING THE CHEMICAL WEAPONS CONVENTION 9 (“The wording of this definition [in paragraph
2 of Article 2] is intended to cover toxins, as well as organic and inorganic chemicals, and chemicals produced bybinary and multicomponent weapons.”).
183

Refer to § 6.17 (Herbicides).

184

Refer to § 6.8.3.4 (Certain Uses of Toxic Chemicals Not Prohibited).

185

CHEMICAL WEAPONS CONVENTION art. 2(3) (“‘Precursor’ means: Any chemical reactant which takes part at any
stage in the production by whatever method of a toxic chemical. This includes any key component of a binary or
multicomponent chemical system.”).
186

CHEMICAL WEAPONS CONVENTION art. 2(4) (“‘Key Component of Binary or Multicomponent Chemical
Systems’ (hereinafter referred to as ‘key component’) means: The precursor which plays the most important role indetermining the toxic properties of the final product and reacts rapidly with other chemicals in the binary or
multicomponent system.”).
187

See Article-by-Article Analysis of the Chemical Weapons Convention, 9, Attachment to Peter Tarnoff, Acting,Letter of Submittal, Nov. 20, 1993, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CHEMICAL WEAPONSCONVENTION 9 (“Note that the term ‘directly’ in subparagraph 1(c) is intended to mean ‘solely.’ Thus, dual-use
munitions and their components are not considered to be chemical weapons provided they do not otherwise meetthis definition. For example, dual-use munitions may be used to disperse chemicals not prohibited by theConvention, such as smoke, provided the munitions have not been specifically designed to cause death through therelease of toxic chemicals. Also, dual-use weapons systems such as artillery or aircraft that are capable ofemploying chemical weapons are not covered by this definition, and so are not subject to the destruction
requirements.”).

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directly or indirectly, chemical weapons to anyone;•

to engage in any military preparations to use chemical weapons; and•to assist, encourage, or induce, in any way, anyone to engage in any activity prohibited toa Party to the Chemical Weapons Convention. 188

These prohibitions apply in any circumstances. For example, chemical weapons may not
be used in international armed conflict and non-international armed conflicts. 189 Similarly,
chemical weapons may not be used in retaliation after a State has suffered from a chemical
weapons attack, even if that attack has been conducted by a State that is not a Party to theChemical Weapons Convention. 190
6.8.3.3 Obligation to Destroy Certain Chemical Weapons and Chemical Weapons
Production Facilities. In addition, a Party to the Chemical Weapons Convention has an
obligation to destroy chemical weapons or chemical weapon production facilities it owns or
possesses or that are located in a place under its jurisdiction or control. 191 If U.S. armed forcesencounter chemical weapons or chemical weapon production facilities during armed conflict,
U.S. national authorities should be notified as soon as practicable. In addition, with due regard
for safety and security considerations, reasonable efforts should be made to secure and retain
information regarding the chemical weapons. 192
6.8.3.4 Certain Uses of Toxic Chemicals Not Prohibited. The Chemical Weapons
188

CHEMICAL WEAPONS CONVENTION art. 1(1) (“Each State Party to this Convention undertakes never under any
circumstances: (a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer,directly or indirectly, chemical weapons to anyone; (b) To use chemical weapons; (c) To engage in any military
preparations to use chemical weapons; (d) To assist, encourage or induce, in any way, anyone to engage in any
activity prohibited to a State Party under this Convention.”).
189

Article-by-Article Analysis of the Chemical Weapons Convention, 4, Attachment to Peter Tarnoff, Acting, Letterof Submittal, Nov. 20, 1993, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CHEMICAL WEAPONS CONVENTION
4 (“Moreover, the prohibition on the use of chemical weapons extends beyond solely their use in international armed
conflicts, i.e. chemical weapons may not be used in any type of situation, including purely domestic conflicts, civil
wars or state-sponsored terrorism. As such, this article closes a loophole in the Geneva Protocol of 1925, which
covered only uses in war, i.e. international armed conflicts.”).
190

Article-by-Article Analysis of the Chemical Weapons Convention, 4, Attachment to Peter Tarnoff, Acting, Letterof Submittal, Nov. 20, 1993, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CHEMICAL WEAPONS CONVENTION
4 (“The prohibitions are phrased as undertakings ‘never under any circumstances’ to engage in certain activities
related to chemical weapons. … Thus, the prohibitions apply to a State Party even if chemical weapons are usedagainst it and even if those chemical weapons are used by a State not Party to the Convention, i.e. even ‘retaliatory
use’ of chemical weapons is banned.”).
191

CHEMICAL WEAPONS CONVENTION art. 1(2) (“Each State Party undertakes to destroy chemical weapons it owns
or possesses, or that are located in any place under its jurisdiction or control, in accordance with the provisions of
this Convention.”); CHEMICAL WEAPONS CONVENTION art. 1(4) (“Each State Party undertakes to destroy any
chemical weapons production facilities it owns or possesses, or that are located in any place under its jurisdiction orcontrol, in accordance with the provisions of this Convention.”).
192
See Ireland, Facilitator’s Paper, Concerning the Mandate Created by the Executive Council at its Fifty-Eighth
Sessions Under the Heading ‘Other Destruction-Related Issues,’ Oct. 8, 2010, Organization for the Prohibition ofChemical Weapons Doc. No. EC-62/NAT.11.

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Convention does not prohibit the use of toxic chemicals and their precursors for certain
purposes. 193 Toxic chemicals and their precursors that are used for these purposes are notconsidered chemical weapons, so long as they are of a type and quantity consistent with these
permitted purposes. 194 These purposes include:•industrial, agricultural, research, medical, pharmaceutical, or other peaceful purposes;•

protective purposes, namely those purposes directly related to protection against toxic
chemicals and to protection against chemical weapons;•military purposes not connected with the use of chemical weapons and not dependent on
the use of the toxic properties of chemicals as a method of warfare; and•law enforcement, including domestic riot control purposes. 195

Seeking to develop and use means of protection against chemical weapons is permissible,
provided such protection is not intended to facilitate the use of chemical weapons or for otherpurposes prohibited by the Chemical Weapons Convention. 196
6.9 BIOLOGICAL WEAPONS
Biological weapons, including bacteriological and toxin weapons, are subject to a numberof prohibitions and restrictions.
6.9.1 Biological Weapons – Prohibition on Use as a Method of Warfare. It is prohibitedto use bacteriological methods of warfare. 197 This prohibition includes all biological methods of
193

CHEMICAL WEAPONS CONVENTION art. 6(1) (“Each State Party has the right, subject to the provisions of thisConvention, to develop, produce, otherwise acquire, retain, transfer and use toxic chemicals and their precursors forpurposes not prohibited under this Convention.”).
194

Article-by-Article Analysis of the Chemical Weapons Convention, 13, Attachment to Peter Tarnoff, Acting, Letterof Submittal, Nov. 20, 1993, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CHEMICAL WEAPONS CONVENTION
13 (“Paragraph 9 of Article II defines, in four subparagraphs, the phrase ‘purposes not prohibited under thisConvention.’ This phrase is important because it forms the basis for many exceptions to obligations or prohibited
activities. … This provision means that toxic chemicals and their precursors that are used for one or more of theseenumerated purposes are not chemical weapons, so long as they are of a type and quantity consistent with these
permitted purposes.”).
195

CHEMICAL WEAPONS CONVENTION art. 2(9) (“‘Purposes Not Prohibited Under this Convention’ means: (a)Industrial, agricultural, research, medical, pharmaceutical or other peaceful purposes; (b) Protective purposes,
namely those purposes directly related to protection against toxic chemicals and to protection against chemical
weapons; (c) Military purposes not connected with the use of chemical weapons and not dependent on the use of the
toxic properties of chemicals as a method of warfare; (d) Law enforcement including domestic riot control
purposes.”).
196

CHEMICAL WEAPONS CONVENTION art. 10(2) (“Nothing in this Convention shall be interpreted as impeding theright of any State Party to conduct research into, develop, produce, acquire, transfer or use means of protection
against chemical weapons, for purposes not prohibited under this Convention.”).
197

Richard Nixon, Statement on Chemical and Biological Defense Policies and Programs, Nov. 25, 1969, 1969
PUBLIC PAPERS OF THE PRESIDENTS 968 (“The United States shall renounce the use of lethal biological agents andweapons, and all other methods of biological warfare.”); 1925 GENEVA GAS AND BACTERIOLOGICAL PROTOCOL

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warfare and the use in warfare of toxin weapons. 198 For example, it is prohibited to use plagueas a weapon. 199
A prohibition against the use of biological weapons may be understood to result from
U.S. obligations in the Biological Weapons Convention to refrain from developing, acquiring, or
retaining biological weapons. 200
Bacteriological or biological warfare is prohibited, at least in part, because it can havemassive, unpredictable, and potentially uncontrollable consequences. 201
6.9.1.1 Toxin Weapons. The term toxin refers to poisonous chemical substancesthat are naturally produced by living organisms, and that, if present in the body, produce effects
similar to disease in the human body. 202 Toxins are not living organisms and thus are not(The High Contracting Parties agree to prohibit “the use of bacteriological methods of warfare and agree to bebound as between themselves according to the terms of this declaration.”).
198

William P. Rogers, Letter of Submittal, Aug. 11, 1970, MESSAGE FROM THE PRESIDENT TRANSMITTING THE 1925
GENEVA GAS AND BACTERIOLOGICAL PROTOCOL VI (“The United States considers the term ‘bacteriological methodsof warfare’ as used in the Protocol encompasses all biological methods of warfare and the use in warfare of toxins
however produced.”).
199

For example, Verdict of the Military Tribunal, MATERIALS ON THE TRIAL OF FORMER SERVICEMEN OF THE
JAPANESE ARMY CHARGED WITH MANUFACTURING AND EMPLOYING BACTERIOLOGICAL WEAPONS 529-30 (1950)(“The Japanese imperialists employed bacteriological weapons in the war against China and in sabotage raids
against the U.S.S.R. In 1940 a special expedition of Detachment 731 commanded by General Ishii was despatchedto the theatre of hostilities in Central China, where, by dropping plague-infected fleas from aircraft with special
apparatus, it caused a plague epidemic in the Nimpo area. This criminal operation which brought in its wake
thousands of victims among the peaceful Chinese population was filmed, and this film was later demonstrated in
Detachment 731 to representatives of the High Command of the Japanese Army, among the accused Yamada.”).
200

William P. Rogers, Report of the Secretary of State, Jun. 21, 1972, MESSAGE FROM THE PRESIDENT OF THE
UNITED STATES TRANSMITTING THE CONVENTION ON THE PROHIBITION OF THE DEVELOPMENT, PRODUCTION, AND
STOCKPILING OF BACTERIOLOGICAL (BIOLOGICAL) AND TOXIN WEAPONS, AND ON THEIR DESTRUCTION, OPENEDFOR SIGNATURE AT WASHINGTON, LONDON AND MOSCOW ON APRIL 10, 1972, EXECUTIVE Q, 3 (1972) (“While thisConvention does not explicitly ban the use of biological weapons, no Party to the Convention would be permitted topossess such weapons even in wartime. There is no possibility that a Party could use biological or toxin weapons
without being in violation of Articles I and II of this Convention.”). Refer to § 6.9.2 (Biological Weapons –Prohibition on Development, Acquisition, or Retention).
201

Richard Nixon, Statement on Chemical and Biological Defense Policies and Programs, Nov. 25, 1969, 1969
PUBLIC PAPERS OF THE PRESIDENTS 968 (“Biological weapons have massive, unpredictable and potentiallyuncontrollable consequences. They may produce global epidemics and impair the health of future generations.”);1976 AIR FORCE PAMPHLET 110-31 ¶6-4(b) (“The wholly indiscriminate and uncontrollable nature of biologicalweapons has resulted in the condemnation of biological weapons by the international community, and the practice ofstates in refraining from their use in warfare has confirmed this rule.”); ICRC AP COMMENTARY 623 (¶1965)(“There are some weapons which by their very nature have an indiscriminate effect. The example of bacteriologicalmeans of warfare is an obvious illustration of this point.”).
202

William P. Rogers, Report of the Secretary of State, Jun. 21, 1972, MESSAGE FROM THE PRESIDENT OF THE
UNITED STATES TRANSMITTING THE CONVENTION ON THE PROHIBITION OF THE DEVELOPMENT, PRODUCTION, AND
STOCKPILING OF BACTERIOLOGICAL (BIOLOGICAL) AND TOXIN WEAPONS, AND ON THEIR DESTRUCTION, OPENEDFOR SIGNATURE AT WASHINGTON, LONDON AND MOSCOW ON APRIL 10, 1972, EXECUTIVE Q, 3 (1972) (“Toxins arepoisonous chemical substances which are naturally produced by living organisms and which, if present in the body,
produce effects comparable to those of infection by hostile organisms.”).

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capable of reproducing themselves and transmissible from one person to another. 203
Toxin weapons have been regulated in connection with biological weapons because they
have been produced in facilities similar to those used for the production of biological agents. 204
However, even toxins that are produced synthetically, and not through biological processes, fallwithin these prohibitions. Substances that are classified as “toxins” for the purpose of applying
the requirements of the Biological Weapons Convention may also be classified as “chemical
weapons” that are subject to the requirements of the Chemical Weapons Convention. 205
6.9.2 Biological Weapons – Prohibition on Development, Acquisition, or Retention. It isalso prohibited to develop, produce, stockpile, or otherwise acquire or retain:•

microbial or other biological agents, or toxins whatever their origin or method of
production, of types and in quantities that have no justification for prophylactic,
protective, or other peaceful purposes; or•weapons, equipment or means of delivery designed to use such agents or toxins for
hostile purposes or in armed conflict. 206

6.9.3 Biological Weapons – Prohibition on Transfer or Assisting, Encouraging, orInducing the Manufacture or Acquisition. It is also prohibited to transfer or to assist, encourage,
or induce others to acquire biological weapons. 207

203

Office of the White House Press Secretary, The United States renounces offensive preparations for and the use of
toxins as a method of warfare, Feb. 14, 1970, reprinted in DEPARTMENT OF STATE, FOREIGN RELATIONS OF THE
UNITED STATES, 1969-1976, VOLUME E-2, DOCUMENTS ON ARMS CONTROL, 1969-1972, Document 189 (2007)(“Toxins are chemical substances, not living organisms, and are so regarded by the U.N. Secretary General and theWorld Health Organization. Although the effects of some toxins are commonly described as disease, they are notcapable of reproducing themselves and are not, transmissible from one person to another.”).
204

Office of the White House Press Secretary, The United States renounces offensive preparations for and the use of
toxins as a method of warfare, Feb. 14, 1970, reprinted in DEPARTMENT OF STATE, FOREIGN RELATIONS OF THE
UNITED STATES, 1969-1976, VOLUME E-2, DOCUMENTS ON ARMS CONTROL, 1969-1972, Document 189 (2007)(“However, the production of toxins in any significant quantity would require facilities similar to those needed forthe production of biological agents. If the United States continued to operate such facilities, it would be difficult forothers to know whether they were being used to produce only toxins but not biological agents. Moreover, thoughtoxins of the type useful for military purposes could conceivably be produced by chemical synthesis in the future,
the end products would be the same and their effects would be indistinguishable from toxins produced bybacteriological or other biological processes.”).
205

Refer to § 6.8.3.1 (Definition of Chemical Weapons).

206

BIOLOGICAL WEAPONS CONVENTION art. 1 (“Each State Party to this Convention undertakes never in any
circumstances to develop, produce, stockpile or otherwise acquire or retain: (1) microbial or other biological agents,
or toxins whatever their origin or method of production, of types and in quantities that have no justification forprophylactic, protective or other peaceful purposes; (2) weapons, equipment or means of delivery designed to use
such agents or toxins for hostile purposes or in armed conflict.”).
207

BIOLOGICAL WEAPONS CONVENTION art. 3 (“Each State Party to this Convention undertakes not to transfer toany recipient whatsover [sic], directly or indirectly, and not in any way to assist, encourage, or induce any State,group of States or international organisations to manufacture or otherwise acquire any of the agents, toxins,
weapons, equipment or means of delivery specified in Article I of the Convention.”).

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The exchange of equipment, materials, and scientific and technological information for
the use of bacteriological and biological agents and toxins for peaceful purposes, such as theprevention of disease, however, is not restricted. 208
6.10 CERTAIN ENVIRONMENTAL MODIFICATION TECHNIQUESIt is prohibited to use environmental modification techniques having widespread, longlasting, or severe effects as a means of destruction, damage, or injury to another Party to the
ENMOD Convention. 209 In addition, it is prohibited to assist, encourage, or induce others to use
such environmental modification techniques against a Party to the ENMOD Convention. 210
6.10.1 Environmental Modification Techniques. “Environmental modification
techniques” refers to any technique for changing through the deliberate manipulation of naturalprocesses the dynamics, composition, or structure of the earth, including its biota, lithosphere,hydrosphere and atmosphere, or of outer space. 211
6.10.2 Having Widespread, Long-Lasting, or Severe Effects. The techniques must havewidespread, long-lasting, or severe effects. These terms are interpreted as follows:(a) “widespread”: encompassing an area on the scale of several hundred square
kilometers;(b) “long-lasting”: lasting for a period of months, or approximately a season;(c) “severe”: involving serious or significant disruption or harm to human life,

208

BIOLOGICAL WEAPONS CONVENTION art. 10(1) (“The States Parties to this Convention undertake to facilitate, andhave the right to participate in, the fullest possible exchange of equipment, materials and scientific and technologicalinformation for the use of bacteriological (biological) agents and toxins for peaceful purposes. Parties to theConvention in a position to do so shall also co-operate in contributing individually or together with other States orinternational organisations to the further development and application of scientific discoveries in the field ofbacteriology (biology) for the prevention of disease, or for other peaceful purposes.”); BIOLOGICAL WEAPONSCONVENTION art. 10(2) (“This Convention shall be implemented in a manner designed to avoid hampering the
economic or technological development of States Parties to the Convention or international co-operation in the fieldof peaceful bacteriological (biological) activities, including the international exchange of bacteriological (biological)
agents and toxins and equipment for the processing, use or production of bacteriological (biological) agents andtoxins for peaceful purposes in accordance with the provisions of the Convention.”).
209

ENMOD CONVENTION art. 1(1) (“Each State Party to this Convention undertakes not to engage in military or any
other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as themeans of destruction, damage or injury to any other State Party.”).
210

ENMOD CONVENTION art. 1(2) (“Each State Party to this Convention undertakes not to assist, encourage or
induce any State, group of States or international organization to engage in activities contrary to the provisions ofparagraph 1 of this article.”).
211
ENMOD CONVENTION art. 2 (“The term ‘Environmental modification techniques’ refers to any technique forchanging through the deliberate manipulation of natural processes the dynamics, composition or structure of theearth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space.”).

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natural and economic resources, or other assets. 212
For example, earthquakes, tsunamis, and cyclones are environmental effects likely to be
widespread, long-lasting, or severe that could be caused by the use of environmental
modification techniques. 213 On the other hand, dispelling fog to facilitate military or combat
operations may involve the use of environmental modification techniques that would not havewidespread, long-lasting, or severe effects. 214
6.10.3 As a Means of Destruction, Damage, or Injury. In order to fall within the
ENMOD Convention’s prohibitions, the environmental modification techniques must be used asa means of destruction, damage, or injury to another Party to the ENMOD Convention. The
ENMOD Convention does not prohibit damage to the environment, but reflects the idea that theenvironment itself should not be used as an instrument of war. 215
Weapons or military operations may incidentally have widespread, long-lasting, or severe
212

Cyrus Vance, Letter of Submittal, Aug. 31, 1978, MESSAGE FROM THE PRESIDENT OF THE UNITED STATESTRANSMITTING THE CONVENTION ON THE PROHIBITION OF MILITARY OR ANY OTHER HOSTILE USE OFENVIRONMENTAL MODIFICATION TECHNIQUES, SIGNED AT GENEVA ON MAY 18, 1977, EXECUTIVE K, 4 (1978)(“According to the Understanding related to this Article the terms ‘widespread, long-lasting and severe’, forpurposes of this Convention only, are to be interpreted as follows: (a) ‘widespread’: encompassing an area on thescale of several hundred square kilometers; (b) ‘long-lasting’: lasting for a period of months, or approximately aseason; (c) ‘severe’: involving serious or significant disruption or harm to human life, natural and economic
resources or other assets.”). See also U.N. Conference of the Committee on Disarmament, New York, U.S., Dec.
10, 1976, Report of the Conference of the Committee on Disarmament: Official records: Thirty-first session,
Supplement No. 27 92 U.N. Doc A/31/27 (Vol I) (1976) (“Referring to suggestions at the previous year’s session
and at the General Assembly that the phrase ‘having widespread, long-lasting or severe effects’ be eliminated, thedelegation of the United States held that the phrase was necessary to ensure that the ban could be implemented
successfully and would not give rise to friction over trivial issues: the phrase served to avoid the risk of unprovableclaims of violation while eliminating the use of techniques with significant effects.”).
213

See U.N. Conference of the Committee on Disarmament, Report of the Conference of the Committee on
Disarmament, U.N. Official records: Thirty-First Session, Supplement No. 27, U.N. Doc A/31/27 (Vol I) 92 (Dec.
10, 1976) (“It is the understanding of the Committee that the following examples are illustrative of phenomena that
could be caused by the use of environmental modification techniques as defined in article II of the Convention:
earthquakes; tsunamis; an upset in the ecological balance of a region; changes in weather patterns (clouds,
precipitation, cyclones of various types and tornadic storms); changes in climate patterns; changes in ocean currents;changes in the state of the ozone layer; and changes in the state of the ionosphere.”).
214

Rear Admiral Edward F. Welch, Jr., Deputy Director for International Negotiations, Plans and Policy Directorate,
Joint Chiefs of Staff, Environmental Modication Treaty: Hearing Before the Committee on Foreign Relations, U.S.
Senate, Ninety-Fifth Congress, Second Session, 31 (Oct. 3, 1978) (“I think the Joint Chiefs of Staff prefer to havethis threshold treaty with these stipulations in it rather than a complete foreclosure of any military options. The
example I might cite, that was in the testimony given to this committee in 1974 was the case of the situation in
Belgium during the Battle of the Bulge where they had the opportunity and, had the technique been available forcutting and dispelling the fog that attended that battle, it could have been done in 30 to 40 minutes. Dispelling thefog that was there preventing the resupply of our units is now within the technology of limiting fog.”).
215

Michael Moodie, United States Arms Control and Disarmament Agency, Statement before the Second Review
Conference of the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental
Modification Techniques (Sept. 15, 1992) (“The Environmental Modification Convention is not an Environmental
Protection Treaty; it is not a treaty to prohibit damage to the environment resulting from armed conflict. Rather, theEnvironmental Modification Convention fills a special, but important niche reflecting the international community’s
consensus that the environment itself should not be used as an instrument of war.”).

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effects on the environment. Such weapons and military operations are not prohibited by the
ENMOD Convention because the harm to the environment is incidental and not intended to be
used as a means of destruction, damage, or injury to another Party to the ENMOD Convention.
For example, nuclear weapons are not prohibited by the ENMOD Convention because theireffects on the environment are a by-product of their use rather than intended as a means of
injuring the enemy. 216
6.10.3.1 AP I Provisions on Environmental Protection. In contrast to the
ENMOD Convention’s prohibition against using certain environmental modification techniques
as a means of destruction, damage, or injury, two provisions of AP I specifically address theprotection of the environment. Article 35(3) of AP I provides that “[i]t is prohibited to employ
methods or means of warfare which are intended, or may be expected, to cause widespread, longterm and severe damage to the natural environment.” Article 55 of AP I provides:
Protection of the natural environment: (1) Care shall be taken in warfare toprotect the natural environment against widespread, long-term and severe
damage. This protection includes a prohibition of the use of methods or means of
warfare which are intended or may be expected to cause such damage to thenatural environment and thereby to prejudice the health or survival of the
population. (2) Attacks against the natural environment by way of reprisals areprohibited.
The United States has not accepted these provisions 217 and has repeatedly expressed theview that these provisions are “overly broad and ambiguous and ‘not a part of customarylaw.’” 218 Articles 35(3) and 55 of AP I “fail to acknowledge that use of such weapons is216

Written Statement of the Government of the United States of America, 29, Jun. 20, 1995, I.C.J., Request by theUnited Nations General Assembly for an Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons (“Although one might imagine a hypothetical use of nuclear weapons to create an environmental
modification technique (for example, to cause an earthquake or tidal wave), the Convention does not prohibit otheruses of nuclear weapons (or any other weapon), even if they cause serious damage to the environment. Only the‘deliberate manipulation’ of environmental forces to cause destruction is covered.”).
217

See, e.g., Mark Simonoff, Minister Counselor, U.S. Mission to the United Nations, Remarks at the 70th UN
General Assembly Sixth Committee on Agenda Item 83: Report of the International Law Commission on the Workof its 67th Session, Nov. 11, 2015, 2015 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 287(“Relatedly, we are troubled by the presence among the principles of rules extracted from certain treaties that we donot believe reflect customary law. For example, draft principle II-4 repeats a prohibition in Additional Protocol I,
AP I, on attacks against the natural environment by way of reprisals that we do not believe exists as a matter ofcustomary international law. To the extent the rule is offered to encourage normative development, we remain in
disagreement with it, consistent with the objections we have stated on other occasions.”); United States, Statementon Ratification of the CCW, Accepting Protocols I & II, Mar. 24, 1995, 1861 UNTS 482, 483 (“The United Statesconsiders that the fourth paragraph of the preamble to the Convention, which refers to the substance of provisions ofarticle 35 (3) and article 55 (1) of additional Protocol I to the Geneva Conventions for the Protection of War Victimsof August 12, 1949, applies only to States which have accepted those provisions.”).
218

U.S. RESPONSE TO ICRC CIHL STUDY 521 (“France and the United States repeatedly have declared that Articles
35(3) and 55 of AP I, from which the Study derives the first sentence of rule 45, do not reflect customaryinternational law. In their instruments of ratification of the 1980 CCW, both France and the United States asserted
that the preambular paragraph in the CCW treaty, which refers to the substance of Articles 35(3) and 55, applied
only to States that have accepted those articles. The U.S. State Department Principal Deputy Legal Adviser stated378

prohibited only if their use is clearly excessive in relation to the concrete and direct overall
military advantage anticipated.” 219
6.10.4 Environmental Modification Techniques for Peaceful Purposes. The ENMOD
Convention does not hinder the use of environmental modification techniques for peacefulpurposes. 220
6.11 WEAPONS INJURING BY FRAGMENTS NOT DETECTABLE BY X-RAYS
It is prohibited to use any weapon the primary effect of which is to injure by fragmentsthat in the human body escape detection by X-rays. 221
6.11.1 Primary Effect. The prohibition requires that the fragments that are intended tocause injury be made of materials that are detectable in the human body by X-rays.
Portions of many munitions, such as the casing, detonator, or timing mechanism, may bemade of nonmetallic parts or other substances that are not detectable by X-rays in order to reduceweight, manufacturing costs, etc. These munitions are not prohibited because their primaryeffect is not to injure by fragments that in the human body escape detection by X-rays. 222
6.11.2 Fragments That Injure by Penetrating the Human Body. The prohibition applies
only to weapons that are intended to injure by penetrating the human body. Thus, for example, aweapon that employs rubber projectiles that are unlikely to penetrate the skin need not be
detectable by X-rays.

during a conference in 1987 that the United States considered Articles 35 and 55 to be overly broad and ambiguousand ‘not a part of customary law.’”).
219

U.S. RESPONSE TO ICRC CIHL STUDY 528 endnote 30 (“An example illustrates why States – particularly those
not party to AP I – are unlikely to have supported rule 45. Suppose that country A has hidden its chemical andbiological weapons arsenal in a large rainforest, and plans imminently to launch the arsenal at country B. Under
such a rule, country B could not launch a strike against that arsenal if it expects that such a strike may cause
widespread, long-term, and severe damage to the rainforest, even if it has evidence of country A’s imminent launch,and knows that such a launch itself would cause environmental devastation.”).

220

ENMOD CONVENTION art. 3(1) (“The provisions of this Convention shall not hinder the use of environmental
modification techniques for peaceful purposes and shall be without prejudice to the generally recognized principles
and applicable rules of international law concerning such use.”).
221

CCW PROTOCOL I (“It is prohibited to use any weapon the primary effect of which is to injure by fragments
which in the human body escape detection by X-rays.”).

222

Canada, Statement on Ratification of CCW, Accepting Protocols I, II, & III, Jun. 24, 1994, 1787 UNTS 501(“With respect to Protocol I, it is the understanding of the Government of Canada that the use of plastics or similarmaterials for detonators or other weapons parts not designed to cause injury is not prohibited.”). For example, W.
Hays Parks, Memorandum re: Advanced Combat Rifle; Request for Legal Review, ¶6 (May 21, 1990), reprinted in
THE ARMY LAWYER 18, 20 (Jul. 1990) (“[B]oth the AAI and Steyr-Mannlicher ammunition employ liquid crystal
polymers in the sabot that holds the flechette in place. It is not necessary to determine whether liquid crystal
polymers are detectable by x-ray, as the sabot in each round is employed for effects other than injury to combatants.
(The wounding capability of the sabot is extremely limited, as it separates from the flechette, quickly loses its force,and falls to the ground within one hundred feet of the muzzle.) The negotiation history of the UNCCW Protocol I isclear that its prohibition would not extend to the polymer sabot in the AAI and Steyr ammunition.”).

379

6.11.3 Fragments Escaping Detection by X-Rays. The fragments must not be such thatthey escape detection by X-rays. For example, a member of the armed forces engaged in theauthorized construction and/or employment of field-improvised booby-traps may not use glassfor fragments for the purpose of wounding enemy personnel. 223
In some cases, the fragments that otherwise would not be detectable by X-rays may be
modified in order to ensure that they would be detectable by X-rays. For example, projectiles
may be modified with a substance, such as barium sulfate, so that they are readily detectable by
X-rays if they happen to penetrate the skin. 224
6.12 LANDMINES, BOOBY-TRAPS, AND OTHER DEVICES
As a class of weapons, landmines, booby-traps, and other devices are not specificallyprohibited under the law of war. However, certain landmines, booby-traps, and other devices areprohibited. In addition, the use of landmines, booby-traps, and other devices is subject to certain
restrictions that the United States has accepted in the CCW Amended Mines Protocol.
6.12.1 Definition of Mine. The CCW Amended Mines Protocol defines a “mine” as “amunition placed under, on, or near the ground or other surface area and designed to be explodedby the presence, proximity or contact of a person or vehicle.” 225 The term “mine” thus includes
both anti-personnel and anti-vehicle mines, including anti-tank mines.
The mines to which the CCW Amended Mines Protocol relate are those used on land,
including those laid to interdict beaches, waterway crossings, or river crossings, but do notinclude the use of anti-ship mines at sea or in inland waterways. 226 The rules on naval mines are
addressed in § 13.11 (Naval Mines).
The term “mine” does not include hand grenades. 227 A trip-wired hand grenade is not

223

Refer to § 6.12.4.1 (Mines, Booby-Traps, and Other Devices Calculated to Cause Superfluous Injury).

224

W. Hays Parks, Means and Methods of Warfare, 38 THE GEORGE WASHINGTON INTERNATIONAL LAW REVIEW
511, 524 note 53 (2006) (“In 1998, the author conducted the legal review of the Modular Crowd Control Munition, aless-lethal version of the M18 Claymore mine containing rubber instead of steel projectiles. While the chance of therubber projectiles penetrating the skin was negligible, the rubber projectiles were implanted with 5 percent Barium
Sulfate to make them detectable by x-ray and compliant with Protocol I of the UNCCW. See Office of The Judge
Advocate General of the Army, Memorandum of Law: Legal Review of Modular Crowd Control Munition(MCCM) (Oct. 13, 1998) [hereinafter DAJA-IO: Modular Crowd Control Munition].”) (insertion in original).
225

CCW AMENDED MINES PROTOCOL art. 2(1) (“‘Mine’ means a munition placed under, on or near the ground orother surface area and designed to be exploded by the presence, proximity or contact of a person or vehicle.”).
226

CCW AMENDED MINES PROTOCOL art. 1(1) (“This Protocol relates to the use on land of the mines, booby-traps
and other devices, defined herein, including mines laid to interdict beaches, waterway crossings or river crossings,
but does not apply to the use of anti-ship mines at sea or in inland waterways.”).

227

United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065
UNTS 128, 130 (“For the purposes of the Amended Mines Protocol, the United States understands that - … (C)none of the provisions of the Amended Mines Protocol, including Article 2 (5), applies to hand grenades other thantrip-wired hand grenades.”).

380

considered a mine, but is considered a booby-trap under the CCW Amended Mines Protocol. 228
6.12.1.1 Notes on Terminology - “Landmines” Versus “Mines”. The CCW
Amended Mines Protocol uses the term “mines,” but does not address naval mines. This sectionuses the term “mines” to refer to landmines, including both anti-personnel and anti-vehicle
mines.
6.12.1.2 Designed to Be Exploded by the Presence, Proximity, or Contact of a
Person or Vehicle. An important characteristic of a mine is its designed function of being
exploded by the presence, proximity, or contact of a person or vehicle. 229 Command-detonatedmunitions (i.e., munitions whose explosion is triggered by a decision of an operator) are not“mines” under the CCW Amended Mines Protocol, but may be regulated under the CCW
Amended Mines Protocol as “other devices.” 230
Some munitions, such as the Claymore, may be configured for detonation by command,or by trip-wire. When used in trip-wire mode, they are mines and subject to corresponding
restrictions. When used in command-detonated mode, they are subject to the restrictions
applicable to “other devices.” 231
The design function of being activated by the target also distinguishes a mine from
unexploded ordnance that results from the malfunction of a munition. 232 Other rules address
228

United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065
UNTS 128, 130 (“For the purposes of the Amended Mines Protocol, the United States understands that - … (B) atrip-wired hand grenade shall be considered a ‘booby-trap’ under Article 2(4) of the Amended Mines Protocol andshall not be considered a ‘mine’ or an ‘anti-personnel mine’ under Article 2(1) or 2(3), respectively;”). Refer to§ 6.12.2 (Definition of Booby-Trap).
229

Article-by-Article Analysis of CCW Amended Mines Protocol, 5, Enclosure A to Warren Christopher, Letter ofSubmittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 5 (“The definition also
contemplates that mines can be emplaced in a variety of ways -- under, on or near the ground or other surface area.
This makes clear that the critical defining characteristic of a mine is not its relationship to the ground or othersurface area but rather its design function of being exploded by the presence, proximity or contact of a target, be thattarget a person or a vehicle. (This applies whether a munition is designed for this purpose in the factory, or adapted
for this purpose in the field.)”).
230

Refer to § 6.12.10 (Rule for Using Booby-Traps and Other Devices).

231

Article-by-Article Analysis of CCW Amended Mines Protocol, 7, Enclosure A to Warren Christopher, Letter ofSubmittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 7 (“With respect toanti-personnel mines which have the potential to be either trip-wired or command-detonated, the definition applies
when such mines are used with a trip-wire or are otherwise target-activated. When such mines are commanddetonated, that is, exploded not by the target itself, but by an operator, they do not meet the definition of
antipersonnel mine and are therefore not subject to the restrictions imposed on anti-personnel mines. They do,
however, fall within the definition of ‘other devices’ in paragraph 7.”).
232

Article-by-Article Analysis of CCW Amended Mines Protocol, 5, Enclosure A to Warren Christopher, Letter ofSubmittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 5 (“It is also thischaracteristic, i.e. that the munition is designed to be activated by the target, that distinguishes a mine from so-called
unexploded ordinance [sic] or UXO. UXO is not covered by the Protocol, either the 1980 or the amended version.
Unexploded ordinance [sic] is a result of a malfunction of a munition; UXO is not ‘designed’ in any sense, and, in381

unexploded ordnance. 233
6.12.1.3 Anti-Personnel Mines. Under the CCW Amended Mines Protocol, an“anti-personnel mine” is a mine primarily designed to be exploded by the presence, proximity, or
contact of a person and that will incapacitate, injure, or kill one or more persons. 234“Primarily” was added to ensure that anti-vehicle mines equipped with anti-handlingdevices (which often cause the mine to detonate by contact of a person) are not treated as antipersonnel mines under the CCW Amended Mines Protocol. 235
Another element in the definition of “anti-personnel mine” is its effect of incapacitating,injuring, or killing one or more persons. This description was understood to be broad enough tocover the range of hazards posed by anti-personnel mines, but the term “incapacitating” means
permanent incapacity. 236 Thus, the definition of “mine” for the purposes of the CCW Amended
Mines Protocol does not include non-lethal weapon technology that is designed temporarily todisable, stun, or signal the presence of a person, but not to cause permanent incapacity. 237

particular, is not designed to be detonated by the presence, proximity or contact of person. Although UXO presents
a serious problem that requires concerted attention, it is a problem outside the scope of Protocol II.”).
233

Refer to § 6.20 (Explosive Remnants of War).

234

CCW AMENDED MINES PROTOCOL art. 2(3) (“‘Anti-personnel mine’ means a mine primarily designed to be
exploded by the presence, proximity or contact of a person and that will incapacitate, injure or kill one or more
persons.”).

235

Article-by-Article Analysis of CCW Amended Mines Protocol, 6-7, Enclosure A to Warren Christopher, Letter ofSubmittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 6-7 (“The first is theword ‘primarily’ in the phrase ‘primarily designed’. This element was added to ensure that anti-tank mines
equipped with anti-handling devices are not treated as anti-personnel mines. This was an important consideration
for U.S. military operations. Anti-personnel mines are frequently used in conjunction with anti-tank mines toprotect anti-tank mines against enemy removal during military operations. With increasing restrictions on the use ofanti-personnel mines, it was clear, from a military perspective, that alternative means of protecting anti-tank mines
against enemy removal during combat operations would be increasingly important. One such common alternative is
to equip anti-tank mines with anti-handling devices. But since such devices are, as a practical matter, intended tocause an anti-tank mine to detonate if handled by a person, there was concern that an anti-tank mine equipped withan anti-handling device would inadvertently fall within the definition of an anti-personnel mine, and be subject,
therefore, to the additional constraints imposed on anti-personnel mines. Adding the word ‘primarily’ before‘designed’ clarified that anti-tank mines that are equipped with anti-handling devices are not considered antipersonnel mines as a result of being so equipped. This language was not intended to exclude from the restrictions on
anti-personnel mines any munition designed to perform the function of an anti-personnel mine.”).
236

Article-by-Article Analysis of CCW Amended Mines Protocol, 7, Enclosure A to Warren Christopher, Letter ofSubmittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 7 (“The second
additional element in the anti-personnel mine definition is the reference to incapacitating, injuring or killing one ormore persons. This description was understood to be broad enough to cover the range of hazards posed by antipersonnel mines. Additionally, the term ‘incapacitating’ does not restrict non-lethal weapon technology that may
temporarily disable, stun or signal the presence of person but not cause permanent incapacity.”).
237

United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065
UNTS 128, 130 (“The United States understands that nothing in the Amended Mines Protocol may be construed as382

6.12.1.4 Mines Other Than Anti-Personnel Mines. The CCW Amended Mines
Protocol uses the term “mines other than anti-personnel mines” to refer to anti-vehicle mines.
“Anti-vehicle mines” or “mines other than anti-personnel mines” are also sometimes referred toas anti-tank mines. 238
The CCW Amended Mines Protocol defines “mine” in terms of a munition that isdesigned to be exploded by a person or vehicle. 239 Thus, “mines other than anti-personnel
mines” are anti-vehicle mines. 240
6.12.1.5 Remotely Delivered Mines. “Remotely-delivered mine” means a minethat is not directly emplaced, but is instead delivered by artillery, missile, rocket, mortar, or
similar means, or dropped from an aircraft. 241
Mines delivered from a land-based system from less than 500 meters, however, are notconsidered to be remotely delivered, provided that they are used in accordance with Article 5 andother relevant articles of the CCW Amended Mines Protocol. 242 These mines were excluded
from the definition of remotely delivered mines because, when delivered in the prescribedmanner, they can be accurately marked and precautions to protect civilians can be reliably
maintained.
6.12.1.6 Mines With Compliant Self-Destruction and Self-Deactivation (SD/SDA)
Mechanisms. Certain types of mines may be equipped with self-destruction or self-neutralization
mechanisms, or be self-deactivating.
“Self-destruction [SD] mechanism” means an incorporated or externally attachedautomatically functioning mechanism that secures the destruction of the munition into which it isrestricting or affecting in any way non-lethal weapon technology that is designed to temporarily disable, stun, signal
the presence of a person, or operate in any other fashion, but not to cause permanent incapacity.”).
238

Article-by-Article Analysis of CCW Amended Mines Protocol, 8, Enclosure A to Warren Christopher, Letter ofSubmittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 8 (“Finally, the term
‘anti-tank mine’ is not used or defined in the amended Protocol; such mines are referred to by the use of the phrase‘mines other than anti-personnel mines,’ which includes all mines designed to be exploded by the presence,
proximity or contact of a vehicle. This formulation flows from the definitions for ‘mine’ and ‘anti-personnel mine’
when read in light of each other. Throughout this analysis mines other than anti-personnel mines are also referred toas anti-tank mines.”).
239

CCW AMENDED MINES PROTOCOL art. 2(1) (“‘Mine’ means a munition placed under, on or near the ground orother surface area and designed to be exploded by the presence, proximity or contact of a person or vehicle.”).

240

See CCW AMENDED MINES PROTOCOL art. 2(3) (“‘Anti-personnel mine’ means a mine primarily designed to be
exploded by the presence, proximity or contact of a person and that will incapacitate, injure or kill one or more
persons.”).
241

CCW AMENDED MINES PROTOCOL art. 2(2) (“‘Remotely-delivered mine’ means a mine not directly emplaced but
delivered by artillery, missile, rocket, mortar, or similar means, or dropped from an aircraft.”).
242
CCW AMENDED MINES PROTOCOL art. 2(2) (“Mines delivered from a land-based system from less than 500
metres are not considered to be ‘remotely delivered’, provided that they are used in accordance with Article 5 andother relevant Articles of this Protocol.”).

383

incorporated or to which it is attached. 243“Self-neutralization mechanism” means an incorporated automatically functioning
mechanism that renders inoperable the munition into which it is incorporated. 244 The term isused in Article 6 of the CCW Amended Mines Protocol in relation to remotely delivered mines
other than anti-personnel mines. There are no technical specifications for self-neutralization
mechanisms in the Technical Annex to the CCW Amended Mines Protocol. 245“Self-deactivating” (SDA) means automatically rendering a munition inoperable bymeans of the irreversible exhaustion of a component; for example, a battery that is essential tothe operation of the munition could be exhausted as part of a self-deactivating mine. 246
6.12.2 Definition of Booby-Trap. Under the CCW Amended Mines Protocol, a “boobytrap” means any device or material that is designed, constructed, or adapted to kill or injure, andthat functions when a person disturbs or approaches an apparently harmless object or performs
an apparently safe act. 247
This includes field-expedient devices, e.g., a hand grenade attached to a door and rigged
to explode when the door is opened (as opening a door is an apparently safe act), as well as
devices designed in advance to function as booby-traps (such as explosive devices designed toresemble civilian objects). 248
6.12.3 Definition of “Other Devices” Similar to Mines. “Other devices” in the CCW
Amended Mines Protocol means manually emplaced munitions and devices, including
improvised explosive devices, designed to kill, injure, or damage, and which are actuated243

CCW AMENDED MINES PROTOCOL art. 2(10) (“‘Self-destruction mechanism’ means an incorporated or externallyattached automatically-functioning mechanism which secures the destruction of the munition into which it isincorporated or to which it is attached.”).
244

CCW AMENDED MINES PROTOCOL art. 2(11) (“‘Self-neutralization mechanism’ means an incorporated
automatically-functioning mechanism which renders inoperable the munition into which it is incorporated.”).

245

Article-by-Article Analysis of CCW Amended Mines Protocol, 9, Enclosure A to Warren Christopher, Letter ofSubmittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 9 (“The term is used in
Article 6 in relation to remotely-delivered mines other than anti-personnel mines. There are no technicalspecifications for self-neutralization mechanisms in the Technical Annex.”).
246

CCW AMENDED MINES PROTOCOL art. 2(12) (“‘Self-deactivating’ means automatically rendering a munition
inoperable by means of the irreversible exhaustion of a component, for example, a battery, that is essential to theoperation of the munition.”).
247

CCW AMENDED MINES PROTOCOL art. 2(4) (“‘Booby-trap’ means any device or material which is designed,
constructed or adapted to kill or injure, and which functions unexpectedly when a person disturbs or approaches anapparently harmless object or performs an apparently safe act.”).
248

Article-by-Article Analysis of CCW Amended Mines Protocol, 8, Enclosure A to Warren Christopher, Letter ofSubmittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 8 (“[Paragraph 4 of
Article 2 of the CCW Amended Mines Protocol] is understood to include, for example, a hand-grenade when
attached to a door and rigged to explode when the door opens, as well as devices designed in advance to function as
booby-traps.”).

384

manually, by remote control, or automatically after a lapse of time. 249“Other devices” do not include munitions and devices that are not manually emplaced,such as munitions that are remotely delivered.
“Other devices” do not include hand grenades. 250 However, trip-wired hand grenades are
regulated as booby traps. 251
6.12.4 Prohibited Classes of Mines, Booby-Traps, and Other Devices. Certain types ofmines, booby-traps, and other devices are prohibited. These types include:•

mines, booby-traps, and other devices calculated to cause superfluous injury; 252•

mines, booby-traps, and other devices specifically designed to detonate during detection
operations; 253•

self-deactivating mines with anti-handling devices designed to function after the mine’s
operation; 254•

non-detectable anti-personnel mines; 255•

remotely delivered mines without compliant self-destruction and self-deactivation
mechanisms; 256•remotely delivered mines other than anti-personnel mines without a feasible SD/SDA
mechanism; 257

249

CCW AMENDED MINES PROTOCOL art. 2(5) (“‘Other devices’ means manually-emplaced munitions and devices
including improvised explosive devices designed to kill, injure or damage and which are actuated manually, by
remote control or automatically after a lapse of time.”).
250

United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065
UNTS 128, 130 (“For the purposes of the Amended Mines Protocol, the United States understands that - … (C)none of the provisions of the Amended Mines Protocol, including Article 2 (5), applies to hand grenades other thantrip-wired hand grenades.”).

251

Refer to § 6.12.2 (Definition of Booby-Trap).

252

Refer to § 6.12.4.1 (Mines, Booby-Traps, and Other Devices Calculated to Cause Superfluous Injury).

253

Refer to § 6.12.4.2 (Mines, Booby-Traps, and Other Devices Specifically Designed to Detonate During Detection
Operations).
254

Refer to § 6.12.4.3 (Self-Deactivating Mines With Anti-Handling Devices Designed to Function After the Mine’s
Operation).
255

Refer to § 6.12.4.4 (Non-Detectable Anti-Personnel Mines).

256

Refer to § 6.12.4.5 (Remotely Delivered Anti-Personnel Mines Not in Compliance With Self-Destruction and
Self-Deactivation Requirements).
257

Refer to § 6.12.4.6 (Remotely Delivered Mines Other Than Anti-Personnel Mines Without a Feasible SD/SDA
Mechanism).

385

•

mines produced after December 3, 1998, without identifying information; 258•

booby-traps and other devices in the form of apparently harmless portable objects
specifically designed to explode; 259 and•certain types of prohibited booby-traps and other devices. 260

6.12.4.1 Mines, Booby-Traps, and Other Devices Calculated to Cause
Superfluous Injury. As with other weapons, it is prohibited in all circumstances to use any mine,booby trap, or other device that is designed or of a nature to cause superfluous injury or
unnecessary suffering. 261
For example, mines and booby-traps filled with shards of glass as their primary wounding
mechanism would violate this prohibition. Such a weapon would be regarded as calculated tocause superfluous injury because the shards would be undetectable by X-rays and would hinder
the medical treatment of the wound without offering any corresponding military advantage. 262 In
addition, such a weapon would be prohibited on the grounds that it used fragments nondetectable by X-rays. 263
6.12.4.2 Mines, Booby-Traps, and Other Devices Specifically Designed to
Detonate During Detection Operations. It is prohibited to use mines, booby-traps, and otherdevices that employ a mechanism or device specifically designed to detonate the munition by thepresence of commonly available mine detectors as a result of their magnetic or other non-contact
influence during normal use in detection operations. 264
This rule only applies to mines, booby-traps, and other devices that are specifically258

Refer to § 6.12.4.7 (Mines Produced After December 3, 1998, Without Identifying Information).

259

Refer to § 6.12.4.8 (Booby-Traps and Other Devices in the Form of Apparently Harmless Portable Objects
Specifically Designed to Explode).
260

Refer to § 6.12.4.9 (Certain Types of Prohibited Booby-Traps and Other Devices).

261

CCW AMENDED MINES PROTOCOL art. 3(3) (“It is prohibited in all circumstances to use any mine, booby-trap orother device which is designed or of a nature to cause superfluous injury or unnecessary suffering.”). Refer to § 6.6(Weapons Calculated to Cause Superfluous Injury).
262

Article-by-Article Analysis of CCW Amended Mines Protocol, 11, Enclosure A to Warren Christopher, Letter ofSubmittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 11 (“Which types ofsuch weapons might cause ‘unnecessary suffering’ can only be determined on a case-by-case basis, weighing thesuffering caused against the military necessity for its use. One example of a prohibited device might be a mine orbooby-trap that is filled with shards of glass. Such a weapon would likely be regarded as unnecessarily injurious
because the shards would be undetectable by X-ray in the victim’s body, and this would cause suffering that would
be wholly unnecessary for its military purpose. (In any case, the device would be prohibited by Protocol I of theConvention on non-detectable fragments).”).
263

Refer to § 6.11 (Weapons Injuring by Fragments Not Detectable by X-Rays).

264

CCW AMENDED MINES PROTOCOL art. 3(5) (“It is prohibited to use mines, booby-traps or other devices which
employ a mechanism or device specifically designed to detonate the munition by the presence of commonly
available mine detectors as a result of their magnetic or other non-contact influence during normal use in detection
operations.”).

386

designed to detonate through the normal use of non-contact mine detectors during mine detection
operations. Thus, mines, booby-traps, and other devices specifically designed to detonate upon
actual physical contact are permissible. 265 Similarly, anti-handling devices that are designed todetonate a mine upon attempts to defuse or deactivate the mine are not prohibited by this rule.
6.12.4.3 Self-Deactivating Mines With Anti-Handling Devices Designed toFunction After the Mine’s Operation. It is prohibited to use a self-deactivating mine equippedwith an anti-handling device that is designed in such a manner that the anti-handling device iscapable of functioning after the mine has ceased to be capable of functioning. 266
The intent is to avoid situations where a self-deactivating mine, the “life” of which isnormally limited by the life of its battery, remains dangerous indefinitely as a result of a longlived anti-handling device. This would defeat the purpose of the self-deactivation function byleaving a hazardous mine in place. 267
6.12.4.4 Non-Detectable Anti-Personnel Mines. It is prohibited to use antipersonnel mines that are not detectable as specified in paragraph 2 of the Technical Annex to the
CCW Amended Mines Protocol. 268 Paragraph 2 of the Technical Annex specifies that:(a) With respect to anti-personnel mines produced after 1 January 1997, such
mines shall incorporate in their construction a material or device that enables themine to be detected by commonly-available technical mine detection equipment
and provides a response signal equivalent to a signal from 8 grammes or more ofiron in a single coherent mass.
(b) With respect to anti-personnel mines produced before 1 January 1997, such
mines shall either incorporate in their construction, or have attached prior to theiremplacement, in a manner not easily removable, a material or device that enables
the mine to be detected by commonly-available technical mine detection
265

Article-by-Article Analysis of CCW Amended Mines Protocol, 12, Enclosure A to Warren Christopher, Letter ofSubmittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 12 (“The provision
clearly excludes situations where actual physical contact with mine detectors or abnormal use of mine detectors is
required to detonate the mine. For example, a mine’s trip-wire or tilt-rod (a type of vertical trip-wire) may be pulled
or pushed in a sweep of a mine detector, setting off the mine. This would not constitute the use of a mine incontravention of this provision.”).
266

CCW AMENDED MINES PROTOCOL art. 3(6) (“It is prohibited to use a self-deactivating mine equipped with ananti-handling device that is designed in such a manner that the anti-handling device is capable of functioning after
the mine has ceased to be capable of functioning.”).
267

Article-by-Article Analysis of CCW Amended Mines Protocol, 15, Enclosure A to Warren Christopher, Letter ofSubmittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 15 (“The intent is to
avoid situations where a self-deactivating mine, the ‘life’ of which is normally limited by the life of its battery, isdangerous indefinitely as a result of a long-lived anti-handling device. This would defeat the purpose of the selfdeactivation function by leaving a hazardous mine in place.”).
268

CCW AMENDED MINES PROTOCOL art. 4 (“It is prohibited to use anti-personnel mines which are not detectable,
as specified in paragraph 2 of the Technical Annex.”).

387

equipment and provides a response signal equivalent to a signal from 8 grammes
or more of iron in a single coherent mass.
(c) In the event that a High Contracting Party determines that it cannot
immediately comply with sub-paragraph (b), it may declare at the time of its
notification of consent to be bound by this Protocol that it will defer compliancewith sub-paragraph (b) for a period not to exceed 9 years from the entry into forceof this Protocol. In the meantime it shall, to the extent feasible, minimize the useof anti-personnel mines that do not so comply. 269
6.12.4.5 Remotely Delivered Anti-Personnel Mines Not in Compliance With SelfDestruction and Self-Deactivation Requirements. It is prohibited to use remotely delivered antipersonnel mines that are not in compliance with the provisions on self-destruction and selfdeactivation in the Technical Annex to the CCW Amended Mines Protocol. 270
All remotely delivered anti-personnel mines shall be designed and constructed so that no
more than 10% of activated mines will fail to self-destruct within 30 days after emplacement,
and each mine shall have a back-up self-deactivation feature designed and constructed so that, in
combination with the self-destruction mechanism, no more than one in one thousand activatedmines will function as a mine 120 days after emplacement. 271
6.12.4.6 Remotely Delivered Mines Other Than Anti-Personnel Mines Without a
Feasible SD/SDA Mechanism. It is prohibited to use remotely delivered mines other than antipersonnel mines, unless, to the extent feasible, they are equipped with an effective selfdestruction or self-neutralization mechanism and have a back-up self-deactivation feature, which
is designed so that the mine will no longer function as a mine when the mine no longer serves themilitary purpose for which it was placed in position. 272
6.12.4.7 Mines Produced After December 3, 1998, Without Identifying
Information. Subparagraph 1(d) of the Technical Annex to the CCW Amended Mines Protocol
provides:The use of mines produced after the entry into force of this Protocol is prohibited
unless they are marked in English or in the respective national language or
languages with the following information:
269

TECHNICAL ANNEX TO CCW AMENDED MINES PROTOCOL ¶2.

270

CCW AMENDED MINES PROTOCOL art. 6(2) (“It is prohibited to use remotely-delivered anti-personnel mines
which are not in compliance with the provisions on self-destruction and self-deactivation in the Technical Annex.”).

271

TECHNICAL ANNEX TO CCW AMENDED MINES PROTOCOL ¶3(a) (“All remotely-delivered anti-personnel mines
shall be designed and constructed so that no more than 10% of activated mines will fail to self-destruct within 30
days after emplacement, and each mine shall have a back-up self-deactivation feature designed and constructed sothat, in combination with the self-destruction mechanism, no more than one in one thousand activated mines willfunction as a mine 120 days after emplacement.”).
272

CCW AMENDED MINES PROTOCOL art. 6(3) (“It is prohibited to use remotely-delivered mines other than antipersonnel mines, unless, to the extent feasible, they are equipped with an effective self-destruction or selfneutralization mechanism and have a back-up self-deactivation feature, which is designed so that the mine will nolonger function as a mine when the mine no longer serves the military purpose for which it was placed in position.”).

388

(i) name of the country of origin;(ii) month and year of production; and(iii) serial number or lot number.
The marking should be visible, legible, durable and resistant to environmental
effects, as far as possible.
The CCW Amended Mines Protocol entered into force on December 3, 1998. 273
6.12.4.8 Booby-Traps and Other Devices in the Form of Apparently Harmless
Portable Objects Specifically Designed to Explode. It is prohibited in all circumstances to use
booby-traps or other devices in the form of apparently harmless portable objects that are
specifically designed and constructed to contain explosive material. 274 This prohibition relates tobooby-traps manufactured to resemble items, such as watches, personal audio players, cameras,
toys, and the like. This prohibition is intended to prevent the production of large quantities ofdangerous objects that can be scattered around and are likely to be attractive to civilians,
especially children. 275
This rule does not prohibit the use of booby-traps in connection with non-portableobjects, such as a door or gate.
This rule does not prohibit field-expedient adaptation, or adaptation in advance, ofobjects for use as booby-traps or other devices that are not designed or constructed for suchuse. 276 For example, it would not be prohibited to improvise a booby-trap using a trip-wired
hand grenade in the form of an apparently harmless portable object. Such improvisation ofbooby-traps, for example, to retard an enemy advance, does not pose the same sort of danger tothe civilian population as the mass production of objects specifically designed as booby-traps. 277
273

Refer to § 19.21.3 (CCW Amended Mines Protocol).

274

CCW AMENDED MINES PROTOCOL art. 7(2) (“It is prohibited to use booby-traps or other devices in the form ofapparently harmless portable objects which are specifically designed and constructed to contain explosive
material.”).
275

During World War II, such devices were manufactured and intended to be used by guerilla forces operating indenied areas or forces withdrawing from territory about to be occupied by enemy forces. See DEPARTMENT OF THE
ARMY FIELD MANUAL 5-31, Land Mines and Booby Traps, ¶1(d) (1943) (“Factory-produced booby-traps (dirty trick
devices) are described. Most of these have been developed and used in the field by foreign armies.”); id. at.
¶50(d)(4-5) (1943) (“The Japanese manufactured a [tobacco] pipe boobytrap with a charge, detonator, and springloaded striker. The Italians had a booby-trapped headset containing an electric detonator connected to the terminals
on the back. The connection of the headset into the line communication line initiated detonation.”).
276

United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065
UNTS 128, 130 (“For the purposes of the Amended Mines Protocol, the United States understands that - … (A) the
prohibition contained in Article 7(2) of the Amended Mines Protocol does not preclude the expedient adaptation or
adaptation in advance of other objects for use as booby-traps or other devices;”).
277

Article-by-Article Analysis of CCW Amended Mines Protocol, 27, Enclosure A to Warren Christopher, Letter ofSubmittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 27 (“Such389

6.12.4.9 Certain Types of Prohibited Booby-Traps and Other Devices. It is
prohibited to use booby-traps and other devices that are in any way attached to or associatedwith: 278•

internationally recognized protective emblems, signs, or signals;o This includes the distinctive emblem of the red cross and red crescent and thedistinctive emblem for cultural property. 279•

sick, wounded, or dead persons;•burial or cremation sites or graves;•medical facilities, equipment, supplies, or transportation;•

children’s toys or other portable objects or products specially designed for the feeding,health, hygiene, clothing, or education of children;•

food or drink;o The United States has reserved the right to use other devices to destroy any stockof food or drink that is judged likely to be used by an enemy military force, if due
precautions are taken for the safety of the civilian population. 280•

kitchen utensils or appliances, except in military establishments, military locations, or
military supply depots;o This does not authorize kitchen utensils or appliances in military hospitals, POW

improvisation of booby-traps, for example to retard an enemy advance, does not pose the same sort of danger to thecivilian population as the mass production of objects specifically designed as booby-traps toward which theprovision was directed.”).
278

CCW AMENDED MINES PROTOCOL art. 7(1) (“Without prejudice to the rules of international law applicable inarmed conflict relating to treachery and perfidy, it is prohibited in all circumstances to use booby-traps and otherdevices which are in any way attached to or associated with: (a) internationally recognized protective emblems,
signs or signals; (b) sick, wounded or dead persons; (c) burial or cremation sites or graves; (d) medical facilities,
medical equipment, medical supplies or medical transportation; (e) children’s toys or other portable objects or
products specially designed for the feeding, health, hygiene, clothing or education of children; (f) food or drink; (g)kitchen utensils or appliances except in military establishments, military locations or military supply depots; (h)objects clearly of a religious nature; (i) historic monuments, works of art or places of worship which constitute thecultural or spiritual heritage of peoples; or (j) animals or their carcasses.”).

279

Refer to § 7.15.1 (The Distinctive Emblems: Red Cross, Crescent, and Crystal); § 5.18.7 (Marking of Cultural
Property With the Distinctive Emblem).
280

United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065
UNTS 128, 129 (“The United States reserves the right to use other devices (as defined in Article 2(5) of theAmended Mines Protocol) to destroy any stock of food or drink that is judged likely to be used by an enemy militaryforce, if due precautions are taken for the safety of the civilian population.”).

390

camps, or military chapels to be booby-trapped. 281•

objects clearly of a religious nature;•

historic monuments, works of art, or places of worship that constitute the cultural or
spiritual heritage of peoples; 282 or•animals or their carcasses.

6.12.5 General Rules for Using Mines, Booby-Traps, and Other Devices. The use ofmines, booby traps, and other devices is subject to the same rules and principles that govern theuse of other weapons to conduct attacks. 283 However, because mines, booby-traps, and otherdevices explode only after their emplacement, there have been different views as to when the useof a mine constitutes an “attack.” 284 Thus, the CCW Amended Mines Protocol seeks to clarify
how these principles apply to the use of mines, booby-traps, and other devices. These rules
include:•a prohibition against directing mines, booby-traps, and other devices against the civilian
population;•a prohibition against the indiscriminate use of mines, booby-traps, and other devices;•

an obligation to take feasible precautions to protect civilians from the effects of mines,
booby-traps, and other devices;•

an obligation to give effective advance warning of the emplacement of mines, booby-

281

Article-by-Article Analysis of CCW Amended Mines Protocol, 26, Enclosure A to Warren Christopher, Letter ofSubmittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 26 (“The exception inparagraph 1(g) of Article 7 does not, however, authorize kitchen utensils or appliances in military hospitals, military
POW camps or military chapels to be booby-trapped.”).
282

United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065
UNTS 128, 129 (“The United states [sic] understands that Article 7(1)(i) of the Amended Mines Protocol refers only
to a limited class of objects that, because of their clearly recognizable characteristics and because of their widely
recognized importance, constitute a part of the cultural or spiritual heritage of peoples.”). Refer to § 5.18.1(Definition of Cultural Property).
283

Refer to § 5.4 (Rules on Conducting Assaults, Bombardments, and Other Attacks).

284

See, e.g., A.P.V. Rogers, Mines, Booby-traps and Other Devices, 30 INTERNATIONAL REVIEW OF THE RED CROSS
521, 524-25 (Nov.-Dec. 1990) (“One of the difficulties of the conference [that negotiated the Original Mines
Protocol] was to apply to mine warfare the provisions of Additional Protocol I dealing with attacks. Agreement
could not be reached as to what stage in the mine-laying process amounts to an attack: when the mine is laid, when
it is armed, when somebody is endangered by it or when it actually explodes. To avoid these difficulties it wasnecessary to draw up special rules relating to the use of mines.”); ICRC AP COMMENTARY 622 (¶1960) (“However,the question may arise at what point the use of mines constitutes an attack in the sense of this provision [AP I art.
51(4)(b)]. Is it when the mine is laid, when it is armed, when a person is endangered by it, or when it finallyexplodes? The participants at the meeting of the International Society of Military Law and the Law of War(Lausanne, 1982) conceded that from the legal point of view the use of mines constituted an attack in the sense of
the Protocol when a person was directly endangered by such a mine.”).

391

traps, and other devices, unless circumstances do not permit; and•obligations with respect to the recording of the placement of mines, booby-traps, andother devices.

6.12.5.1 Prohibition Against Directing Mines, Booby-Traps, and Other Devices
Against Civilians. As with other weapons, mines, booby-traps, and other devices may not bedirected against the civilian population, individual civilians, or civilian objects. 285
6.12.5.2 Prohibition Against Indiscriminate Use of Mines, Booby-Traps, or Other
Devices. Indiscriminate use of mines, booby-traps, or other devices is prohibited. 286
This prohibition on indiscriminate use of mines, booby-traps, or other devices prohibits
any placement of mines, booby-traps, or other devices that is not on, or directed against, amilitary objective. 287 On the other hand, it would be permissible to direct mines against enemy
forces that are expected to pass through an area. Similarly, it would be permissible to direct
mines against a piece of land that is a military objective. 288 In addition, it would be permissible
to place mines on land or objects that belong to friendly forces and that the adversary would
regard as a military objective, in order to protect such land or objects from interference or attack.
This prohibition on indiscriminate use of mines, booby-traps, or other devices also
prohibits placing mines, booby-traps, or other devices using a method or means of delivery thatcannot be directed at a specific military objective. 289 For example, it would be prohibited todeliver mines using unguided long-distance balloons. 290
This prohibition on indiscriminate use of mines, booby-traps, or other devices also
prohibits placing mines, booby-traps, or other devices that 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. 291

285

CCW AMENDED MINES PROTOCOL art. 3(7) (“It is prohibited in all circumstances to direct weapons to which this
Article applies, either in offence, defence or by way of reprisals, against the civilian population as such or against
individual civilians or civilian objects.”). Refer to § 5.5 (Discrimination in Conducting Attacks).
286

CCW AMENDED MINES PROTOCOL art. 3(8) (“The indiscriminate use of weapons to which this Article applies is
prohibited.”).
287

CCW AMENDED MINES PROTOCOL art. 3(8) (“Indiscriminate use is any placement of such weapons: (a) which is
not on, or directed against, a military objective. In case of doubt as to whether an object which is normallydedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used tomake an effective contribution to military action, it shall be presumed not to be so used;”).
288

Refer to § 5.6.8.4 (Examples of Military Objectives – Places of Military Significance).

289

CCW AMENDED MINES PROTOCOL art. 3(8) (“Indiscriminate use is any placement of such weapons: … (b)which employs a method or means of delivery which cannot be directed at a specific military objective;”).
290

Refer to § 6.7 (Inherently Indiscriminate Weapons).

291

CCW AMENDED MINES PROTOCOL art. 3(8) (“Indiscriminate use is any placement of such weapons: … (c) 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 advantage392

6.12.5.3 Obligation to Take Feasible Precautions to Protect Civilians From the
Effects of Mines, Booby-Traps, and Other Devices. All feasible precautions shall be taken toprotect civilians from the effects of mines, booby-traps, and other devices. 292 This obligation
corresponds to a more general obligation to take feasible precautions. 293 Feasible precautions arethose precautions that are practicable or practically possible, taking into account all
circumstances ruling at the time, including humanitarian and military considerations. 294 These
circumstances include, but are not limited to:•the short- and long-term effect of mines, booby-traps, and other devices upon the local
civilian population for the duration of their use;•

possible measures to protect civilians (e.g., fencing, signs, warning, and monitoring);•

the availability and feasibility of using alternatives; and•the short- and long-term military requirements for a minefield, or for the use of boobytraps or other devices. 295

6.12.5.4 Effective Advance Warning of Any Emplacement. Effective advanced
warning shall be given of any emplacement of mines, booby-traps, and other devices that may
affect the civilian population, unless circumstances do not permit doing so. 296
6.12.5.5 Recording of Minefields, Mined Areas, Mines, Booby-Traps, and Other
Devices. All information concerning minefields, mined areas, mines, booby-traps, and otherdevices shall be recorded in accordance with the provisions of the Technical Annex to the CCW
anticipated.”). Refer to § 5.12 (Proportionality – Prohibition on Attacks Expected to Cause Excessive IncidentalHarm).
292

CCW AMENDED MINES PROTOCOL art. 3(10) (“All feasible precautions shall be taken to protect civilians from theeffects of weapons to which this Article applies.”).
293

Refer to § 5.2.3 (Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other
Protected Persons and Objects).
294

CCW AMENDED MINES PROTOCOL art. 3(10) (“Feasible precautions are those precautions which are practicableor practically possible taking into account all circumstances ruling at the time, including humanitarian and militaryconsiderations.”). Refer to § 5.2.3.2 (What Precautions Are Feasible).
295

CCW AMENDED MINES PROTOCOL art. 3(10) (“These circumstances include, but are not limited to: (a) the shortand long-term effect of mines upon the local civilian population for the duration of the minefield; (b) possible
measures to protect civilians (for example, fencing, signs, warning and monitoring); (c) the availability andfeasibility of using alternatives; and (d) the short- and long-term military requirements for a minefield.”). See also
Article-by-Article Analysis of CCW Amended Mines Protocol, 14, Enclosure A to Warren Christopher, Letter ofSubmittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 14 (“These generalconsiderations [described in CCW Amended Mines Protocol art. 3(10)] are relevant to all mines, both anti-personnel
and anti-tank, as well as the other weapons to which the amended Protocol applies.”).
296

CCW AMENDED MINES PROTOCOL art. 3(11) (“Effective advance warning shall be given of any emplacement ofmines, booby-traps and other devices which may affect the civilian population, unless circumstances do not
permit.”). Refer to § 5.11.5 (Effective Advance Warning Before an Attack That May Affect the Civilian
Population).

393

Amended Mines Protocol. 297“Minefield” is a defined area in which mines have been emplaced (including areas free ofmines that simulate a minefield), and a “mined area” is an area that is dangerous due to thepresence of mines. 298 “Recording” means a physical, administrative, and technical operation
designed to obtain, for the purpose of registration in official records, all available information
facilitating the location of minefields, mined areas, booby-traps, and other devices. 299
Subparagraph 1(a) of the Technical Annex to the CCW Amended Mines Protocol
specifies that the recording of the location of non-remotely delivered mines, minefields, minedareas, booby-traps, and other devices shall be carried out in accordance with the following
provisions:(i) the location of the minefields, mined areas and areas of booby-traps and otherdevices shall be specified accurately by relation to the coordinates of at least two
reference points and the estimated dimensions of the area containing theseweapons in relation to those reference points;(ii) maps, diagrams or other records shall be made in such a way as to indicate thelocation of minefields, mined areas, booby-traps and other devices in relation toreference points, and these records shall also indicate their perimeters and extent;(iii) for purposes of detection and clearance of mines, booby-traps and otherdevices, maps, diagrams or other records shall contain complete information on
the type, number, emplacing method, type of fuse and life time, date and time oflaying, antihandling devices (if any) and other relevant information on all theseweapons laid. Whenever feasible the minefield record shall show the exact
location of every mine, except in row minefields where the row location is
sufficient. The precise location and operating mechanism of each booby-trap laidshall be individually recorded. 300
Records shall be retained by the parties to the conflict. 301 Copies of records shall be held

297

CCW AMENDED MINES PROTOCOL art. 9(1) (“All information concerning minefields, mined areas, mines, boobytraps and other devices shall be recorded in accordance with the provisions of the Technical Annex.”).

298

CCW AMENDED MINES PROTOCOL art. 2(8) (“‘Minefield’ is a defined area in which mines have been emplacedand ‘mined area’ is an area which is dangerous due to the presence of mines. ‘Phoney minefield’ means an area freeof mines that simulates a minefield. The term ‘minefield’ includes phoney minefields.”).
299

CCW AMENDED MINES PROTOCOL art. 2(9) (“‘Recording’ means a physical, administrative and technicaloperation designed to obtain, for the purpose of registration in official records, all available information facilitating
the location of minefields, mined areas, mines, booby-traps and other devices.”).
300

TECHNICAL ANNEX TO CCW AMENDED MINES PROTOCOL ¶1(c).

301

CCW AMENDED MINES PROTOCOL art. 9(2) (providing that “[a]ll such records [mentioned in paragraph 1 of
Article 9] shall be retained by the parties to a conflict”).

394

at a level of command sufficient to guarantee their safety as far as possible. 302
6.12.6 Rules for Using Non-Remotely Delivered Anti-Personnel Mines With Compliant
SD/SDA Mechanisms. Non-remotely delivered anti-personnel mines that comply with therequirements for self-destruction and self-deactivation in the Technical Annex to the CCW
Amended Mines Protocol may be used outside of marked areas. 303
6.12.7 Rules for Using Non-Remotely Delivered Anti-Personnel Mines Without
Compliant SD/SDA Mechanisms. Anti-personnel mines other than remotely delivered minesthat are not in compliance with the provisions on self-destruction and self-deactivation in theTechnical Annex to the CCW Amended Mines Protocol may be used subject to certain
requirements. For a number of years, U.S. forces maintained minefields that met thesestandards. 304 The United States, however, no longer maintains any minefields. 305
First, such weapons are to be placed within a perimeter-marked area that is monitored bymilitary personnel and protected by fencing or other means, to ensure the effective exclusion ofcivilians from the area. The marking must be of a distinct and durable character, and must be
visible to a person who is about to enter the perimeter-marked area. 306 The State Party
controlling a minefield is obligated to take all feasible measures to prevent the unauthorized
removal, defacement, destruction, or concealment of any device, system, or material used toestablish the perimeter of a permanently marked area. 307
Second, such weapons are to be cleared before the area is abandoned, unless the area isturned over to the forces of another State that accepts responsibility for the maintenance of the302

TECHNICAL ANNEX TO CCW AMENDED MINES PROTOCOL ¶1(c) (“Copies of records shall be held at a level ofcommand sufficient to guarantee their safety as far as possible.”).

303

TECHNICAL ANNEX TO CCW AMENDED MINES PROTOCOL ¶3(b) (“All non-remotely delivered anti-personnel
mines, used outside marked areas, as defined in Article 5 of this Protocol, shall comply with the requirements for
self-destruction and self-deactivation stated in sub-paragraph (a).”).
304

Article-by-Article Analysis of CCW Amended Mines Protocol, 16-17, Enclosure A to Warren Christopher, Letterof Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 16-17 (“The U.S.
military has maintained minefields for a number of years in Guantanamo and Korea that meet these standards, and isconfident that these requirements are feasible and realistic.”).
305

Department of State, Bureau of Political-Military Affairs, Fact Sheet: Frequently Asked Questions on the New
United States Landmine Policy (Feb. 27, 2004) (“The United States … currently maintains no minefields anywherein the world, including Korea.”).

306

CCW AMENDED MINES PROTOCOL art. 5(2)(a) (“It is prohibited to use weapons to which this Article applies
which are not in compliance with the provisions on self-destruction and self-deactivation in the Technical Annex,
unless: … such weapons are placed within a perimeter-marked area which is monitored by military personnel andprotected by fencing or other means, to ensure the effective exclusion of civilians from the area. The marking must
be of a distinct and durable character and must at least be visible to a person who is about to enter the perimetermarked area;”).
307
CCW AMENDED MINES PROTOCOL art. 5(5) (“All feasible measures shall be taken to prevent the unauthorized
removal, defacement, destruction or concealment of any device, system or material used to establish the perimeter ofa perimeter-marked area.”).

395

protections stated above, and the subsequent clearance of those weapons. 308 This requirement
does not preclude agreement, in connection with peace treaties or similar arrangements, toallocate responsibilities under Article 5 of the CCW Amended Mines Protocol in a manner that
respects the essential spirit and purpose of Article 5. 309
A party to a conflict is relieved from compliance with these obligations if compliance is
not feasible due to forcible loss of control of the area as a result of enemy military action,
including situations where direct enemy military action makes it impossible to comply. If theparty that laid the minefield regains control of the area, it must re-assume its responsibilities. 310
The forces of a party to the conflict gaining control of an area assume the responsibilities, to the
maximum extent feasible, until the mines have been cleared. 311
6.12.8 Rules for Using Non-Remotely Delivered Anti-Personnel Mines That Propel
Fragments in a Horizontal Arc of Less Than 90 Degrees (e.g., Claymores). Anti-personnel
mines other than remotely delivered mines that propel fragments in a horizontal arc of less than
90 degrees may be used on or above the ground outside of marked areas for up to 72 hours if:•

they are located in immediate proximity to the military unit that emplaced them; and•the area is monitored by military personnel to ensure the effective exclusion ofcivilians. 312

The maintenance of observation over avenues of approach where such mines are deployed
constitutes one acceptable form of monitoring to ensure the effective exclusion of civilians. 313

308

CCW AMENDED MINES PROTOCOL art. 5(2)(b) (“such weapons are cleared before the area is abandoned, unlessthe area is turned over to the forces of another State which accept responsibility for the maintenance of theprotections required by this Article and the subsequent clearance of those weapons.”).
309

United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065
UNTS 128, 130 (“The United States understands that the allocation of responsibilities for landmines in Article
5(2)(b) of the Amended Mines Protocol does not preclude agreement, in connection with peace treaties or similararrangements, to allocate responsibilities under that Article in a manner that respects the essential spirit and purposeof the Article.”).
310

CCW AMENDED MINES PROTOCOL art. 5(3) (“A party to a conflict is relieved from further compliance with theprovisions of subparagraphs 2 (a) and 2 (b) of this Article only if such compliance is not feasible due to forcible lossof control of the area as a result of enemy military action, including situations where direct enemy military action
makes it impossible to comply. If that party regains control of the area, it shall resume compliance with theprovisions of sub-paragraphs 2 (a) and 2 (b) of this Article.”).
311

CCW AMENDED MINES PROTOCOL art. 5(4) (“If the forces of a party to a conflict gain control of an area in which
weapons to which this Article applies have been laid, such forces shall, to the maximum extent feasible, maintainand, if necessary, establish the protections required by this Article until such weapons have been cleared.”).
312

CCW AMENDED MINES PROTOCOL art. 5(6) (“Weapons to which this Article applies which propel fragments in ahorizontal arc of less than 90 degrees and which are placed on or above the ground may be used without themeasures provided for in sub-paragraph 2 (a) of this Article for a maximum period of 72 hours, if: (a) they arelocated in immediate proximity to the military unit that emplaced them; and (b) the area is monitored by military
personnel to ensure the effective exclusion of civilians.”).

313

United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065
UNTS 128, 129 (“The United States understands that, for the purposes of Article 5(6)(b) of the Amended Mines

396

A Claymore munition used in trip-wire mode is an example of this type of mine. 314 A
Claymore used in command-detonated mode is regulated as an “other device.” 315
6.12.9 Rules for Using Remotely Delivered Mines. Remotely delivered mines are subject
to special, additional restrictions because their location cannot be marked as accurately as mines
placed by hand or by mechanical mine layers. In addition, because remotely delivered mines areoften emplaced by long-range means, it may be difficult to ensure that civilians are absent or
excluded from areas containing such mines. Remotely delivered mines may not be used unlessthey have compliant self-destruction and self-deactivation mechanisms. 316
6.12.9.1 Effective Advance Warning of the Delivery of Mines Unless
Circumstances Do Not Permit. As with other weapons, effective advance warning shall be givenof any delivery or dropping of remotely delivered mines that may affect the civilian population,
unless circumstances do not permit doing so. 317
6.12.9.2 Recording of Remotely Delivered Mines. It is prohibited to use remotely
delivered mines unless they are recorded in accordance with subparagraph 1(b) of the TechnicalAnnex to the CCW Amended Mines Protocol. 318 Subparagraph 1(b) of the Technical Annex
requires that the estimated location and area of remotely delivered mines be specified bycoordinates of reference points (normally corner points) and shall be ascertained and, when
feasible, marked on the ground at the earliest opportunity. In addition, the total number and typeof mines laid, the date and time of laying, and the self-destruction time periods shall also berecorded. 319
6.12.10 Rule for Using Booby-Traps and Other Devices. Booby-traps may not be of theProtocol, the maintenance of observation over avenues of approach where mines subject to that Article are deployed
constitutes one acceptable form of monitoring to ensure the effective exclusion of civilians.”).
314

Article-by-Article Analysis of CCW Amended Mines Protocol, 7-8, Enclosure A to Warren Christopher, Letter ofSubmittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 7-8 (“In a trip-wired
mode, the Claymore is not excluded from the restrictions applicable to anti-personnel mines by reason of thedefinition in paragraph 3. Specifically, such mines, when used in a trip-wired mode, are covered by the definition
but special, less restrictive rules in Article 5 apply to their use for a limited time -- 72 hours -- from theiremplacement.”).
315

Refer to § 6.12.10 (Rule for Using Booby-Traps and Other Devices).

316

Refer to § 6.12.4.5 (Remotely Delivered Anti-Personnel Mines Not in Compliance With Self-Destruction and
Self-Deactivation Requirements).
317

CCW AMENDED MINES PROTOCOL art. 6(4) (“Effective advance warning shall be given of any delivery or
dropping of remotely-delivered mines which may affect the civilian population, unless circumstances do not
permit.”). Refer to § 5.11.1 (Warning Before Attack).

318

CCW AMENDED MINES PROTOCOL art. 6(1) (“It is prohibited to use remotely-delivered mines unless they arerecorded in accordance with sub-paragraph I (b) of the Technical Annex.”).

319

TECHNICAL ANNEX TO CCW AMENDED MINES PROTOCOL ¶1(b) (“The estimated location and area of remotelydelivered mines shall be specified by coordinates of reference points (normally corner points) and shall be
ascertained and when feasible marked on the ground at the earliest opportunity. The total number and types ofmines laid, the date and time of laying and the self-destruction time periods shall also be recorded.”).

397

prohibited type discussed in § 6.12.4.8 (Booby-Traps and Other Devices in the Form ofApparently Harmless Portable Objects Specifically Designed to Explode) and § 6.12.4.9 (Certain
Types of Prohibited Booby-Traps and Other Devices).
In addition, as with mines, there are recording obligations with respect to the use ofbooby-traps and other devices, including the obligation to record the precise location andoperating mechanism of each booby-trap laid. 320
6.12.10.1 Use of Booby-Traps and Other Devices in Populated Areas When
Combat Between Ground Forces Is Not Taking Place or Does Not Appear Imminent. In
addition, booby-traps and other devices may not be used in any city, town, village, or other area
containing a similar concentration of civilians in which combat between ground forces is nottaking place or does not appear to be imminent, unless either:•“they are placed on or in the close vicinity of a military objective;” 321 or•“measures are taken to protect civilians from their effects, for example, the posting of
warning [signs, the posting of] sentries, the issue of warnings or the provision offences.” 322

6.12.11 Obligation to Seek to Protect Certain Groups From the Effects of Minefields,
Mined Areas, Mines, Booby-Traps, and Other Devices. Article 12 of the CCW Amended Mines
Protocol creates certain obligations to take measures to help protect certain groups from theeffects of minefields, mined areas, mines, booby-traps, and other devices. Such obligations may
apply with respect to:•

Any United Nations force or mission performing peace-keeping, observation, or similarfunctions in any area in accordance with the Charter of the United Nations; or•

Any of the following, if they have the consent of the State in whose territory they areoperating: 323
o missions established pursuant to Chapter VIII of the Charter of the United Nations
and performing its functions in the area of a conflict;

320

Refer to § 6.12.5.5 (Recording of Minefields, Mined Areas, Mines, Booby-Traps, and Other Devices).

321

CCW AMENDED MINES PROTOCOL art. 7(3)(a).

322

CCW AMENDED MINES PROTOCOL art. 7(3) (“Without prejudice to the provisions of Article 3, it is prohibited touse weapons to which this Article applies in any city, town, village or other area containing a similar concentrationof civilians in which combat between ground forces is not taking place or does not appear to be imminent, unlesseither: (a) they are placed on or in the close vicinity of a military objective; or (b) measures are taken to protect
civilians from their effects, for example, the posting of warning sentries, the issuing of warnings or the provision offences.”). The words in square brackets appeared in Original CCW Protocol II Article 4(2)(b). Their omission in
the CCW Amended Mines Protocol is an apparent error overlooked by the Drafting Committee.
323

CCW AMENDED MINES PROTOCOL art. 12(a) (“With the exception of the forces and missions referred to in subparagraph 2(a) (i) of this Article, this Article applies only to missions which are performing functions in an area withthe consent of the High Contracting Party on whose territory the functions are performed.”).

398

o humanitarian or fact-finding missions of the United Nations System;o missions of the ICRC;
o humanitarian missions of a national Red Cross or Red Crescent Society or of theirInternational Federation; ando missions of inquiry established pursuant to the provisions of the Geneva
Conventions of 12 August 1949 and, where applicable, their Additional Protocols.
The obligations to take affirmative measures under Article 12 are subject to practicalconsiderations. 324 In addition, the forces and missions that are afforded protection under Article
12 have corresponding obligations to keep information confidential, to respect applicable laws
and regulations, and to refrain from activities that are incompatible with the impartial andinternational nature of their duties. 325
6.12.12 Obligations Arising After the Cessation of Active Hostilities. Certain obligations
with respect to mines, booby-traps, and other devices are triggered after the cessation of active
hostilities.
6.12.12.1 Take Measures to Protect Civilians From the Effects of Minefields,
Mined Areas, Mines, Booby-Traps, and Other Devices in Areas Under Their Control After
Hostilities. Without delay after the cessation of active hostilities, a party to a conflict is to take324

CCW AMENDED MINES PROTOCOL art. 12(2)(b) (“Each High Contracting Party or party to a conflict, if sorequested by the head of a force or mission to which this paragraph applies, shall: (i) so far as it is able, take suchmeasures as are necessary to protect the force or mission from the effects of mines, booby-traps and other devices inany area under its control; (ii) if necessary in order effectively to protect such personnel, remove or render harmless,so far as it is able, all mines, booby-traps and other devices in that area; and (iii) inform the head of the force or
mission of the location of all known minefields, mined areas, mines, booby-traps and other devices in the area inwhich the force or mission is performing its functions and, so far as is feasible, make available to the head of theforce or mission all information in its possession concerning such minefields, mined areas, mines, booby-traps andother devices.”) (emphasis added); CCW AMENDED MINES PROTOCOL art. 12(3)(b) (“Each High Contracting Partyor party to a conflict, if so requested by the head of a mission to which this paragraph applies, shall: (i) provide thepersonnel of the mission with the protections set out in sub-paragraph 2(b) (i) of this Article; and (ii) if access to or
through any place under its control is necessary for the performance of the mission’s functions and in order toprovide the personnel of the mission with safe passage to or through that place: (aa) unless on-going hostilities
prevent, inform the head of the mission of a safe route to that place if such information is available; or (bb) if
information identifying a safe route is not provided in accordance with sub-paragraph (aa), so far as is necessary andfeasible, clear a lane through minefields.”) (emphasis added); CCW Amended Mines Protocol art. 12(5)(b) (“EachHigh Contracting Party or party to a conflict, if so requested by the head of a mission to which this paragraphapplies, shall, so far as is feasible: (i) provide the personnel of the mission with the protections set out in subparagraph 2(b) (i) of this Article, and (ii) take the measures set out in sub-paragraph 3(b) (ii) of this Article.”)(emphasis added).
325

CCW AMENDED MINES PROTOCOL art. 12 (“6. Confidentiality All information provided in confidence pursuant
to this Article shall be treated by the recipient in strict confidence and shall not be released outside the force or
mission concerned without the express authorization of the provider of the information. 7. Respect for laws andregulations Without prejudice to such privileges and immunities as they may enjoy or to the requirements of theirduties, personnel participating in the forces and missions referred to in this Article shall: (a) respect the laws andregulations of the host State; and (b) refrain from any action or activity incompatible with the impartial andinternational nature of their duties.”).

399

all necessary and appropriate measures, including the use of records kept in accordance with the
CCW Amended Mines Protocol, to protect civilians from the effects of minefields, mined areas,mines, booby-traps, and other devices in areas under their control. 326 Information is to be sharedwith the other party or parties to the conflict and with the Secretary-General of the United
Nations regarding mines laid by the party’s forces in areas no longer under their control, subject
to reciprocity and security requirements. 327
6.12.12.2 Clearance of Minefields, Mined Areas, Mines, Booby-Traps, and Other
Devices After Hostilities. Each Party to the CCW Amended Mines Protocol or party to a conflictis, in accordance with the provisions of the CCW Amended Mines Protocol, responsible for allmines, booby-traps, and other devices employed by it and undertakes to clear, remove, destroy,
or maintain them as specified in Article 10 of the CCW Amended Mines Protocol. 328
Without delay after the cessation of active hostilities, a Party to the CCW Amended
Mines Protocol or a party to a conflict has an obligation to ensure that all minefields, minedareas, mines, booby-traps, and other devices in areas under its control are cleared, removed,
destroyed, or maintained in accordance with Article 3 and Paragraph 2 of Article 5 of the CCW
Amended Mines Protocol. 329
With respect to mines laid by a Party to the CCW Amended Mines Protocol or a party toa conflict in areas over which the party no longer exercises control, the party is to provide to theparty that is now in control of the area, to the extent permitted by such party, technical andmaterial assistance necessary to fulfill its responsibility to ensure that all minefields are cleared,
removed, destroyed, or maintained. 330 For example, such assistance may include maps and other326

CCW AMENDED MINES PROTOCOL art. 9(2) (“All such records shall be retained by the parties to a conflict, whoshall, without delay after the cessation of active hostilities, take all necessary and appropriate measures, including
the use of such information, to protect civilians from the effects of minefields, mined areas, mines, booby-traps andother devices in areas under their control.”).
327

CCW AMENDED MINES PROTOCOL art. 9(2) (“At the same time, they shall also make available to the other partyor parties to the conflict and to the Secretary-General of the United Nations all such information in their possession
concerning minefields, mined areas, mines, booby-traps and other devices laid by them in areas no longer under
their control; provided, however, subject to reciprocity, where the forces of a party to a conflict are in the territory ofan adverse party, either party may withhold such information from the Secretary-General and the other party, to theextent that security interests require such withholding, until neither party is in the territory of the other. In the latter
case, the information withheld shall be disclosed as soon as those security interests permit. Wherever possible, theparties to the conflict shall seek, by mutual agreement, to provide for the release of such information at the earliest
possible time in a manner consistent with the security interests of each party.”).
328

CCW AMENDED MINES PROTOCOL art. 3(2) (“Each High Contracting Party or party to a conflict is, in accordancewith the provisions of this Protocol, responsible for all mines, booby-traps, and other devices employed by it andundertakes to clear, remove, destroy or maintain them as specified in Article 10 of this Protocol.”).
329

CCW AMENDED MINES PROTOCOL art. 10(1) (“Without delay after the cessation of active hostilities, allminefields, mined areas, mines, booby-traps and other devices shall be cleared, removed, destroyed or maintained inaccordance with Article 3 and paragraph 2 of Article 5 of this Protocol.”); CCW AMENDED MINES PROTOCOL art.
10(2) (“High Contracting Parties and parties to a conflict bear such responsibility with respect to minefields, minedareas, mines, booby-traps and other devices in areas under their control.”).

330

CCW AMENDED MINES PROTOCOL art. 10(3) (“With respect to minefields, mined areas, mines, booby-traps andother devices laid by a party in areas over which it no longer exercises control, such party shall provide to the party

400

information regarding the mines and minefields.
In addition, the parties have an obligation to endeavor to reach agreement among
themselves and, where appropriate, with other States and with international organizations, on theprovision of technical and material assistance, including, in appropriate circumstances, theundertaking of joint operations necessary to fulfill such responsibilities. 331 There are additional
provisions of the CCW Amended Mines Protocol addressing international exchanges of
information and cooperation in this respect. 332 However, no provision of the CCW Amended
Mines Protocol is to be construed as affecting the discretion of the United States to refuse
assistance or to restrict or deny permission for the export of equipment, material, or scientific ortechnological information for any reason, and the CCW Amended Mines Protocol may not be
used as a pretext for the transfer of weapons technology or the provision of assistance to themilitary mining or military counter-mining capabilities of a State Party to the CCW Amended
Mines Protocol. 333
6.12.13 U.S. Policy on Landmines. Landmines have been addressed by U.S. national
policy. The United States has announced a policy: (1) not to use anti-personnel landmines
outside the Korean Peninsula; (2) not to assist, encourage, or induce anyone outside the Korean
Peninsula to engage in activity prohibited by the Ottawa Convention; (3) to undertake to destroy
anti-personnel landmine stockpiles not required for the defense of the Republic of Korea; and (4)not to produce or otherwise acquire any anti-personnel munitions that are not compliant with the
Ottawa Convention. 334 The United States has also previously committed not to emplace new
persistent anti-personnel or anti-vehicle landmines (i.e., landmines without self-destruction
mechanisms and self-deactivation features). 335 U.S. landmines will continue to meet or exceed
in control of the area pursuant to paragraph 2 of this Article, to the extent permitted by such party, technical andmaterial assistance necessary to fulfil such responsibility.”).
331

CCW AMENDED MINES PROTOCOL art. 10(4) (“At all times necessary, the parties shall endeavour to reachagreement, both among themselves and, where appropriate, with other States and with international organizations,on the provision of technical and material assistance, including, in appropriate circumstances, the undertaking of
joint operations necessary to fulfil such responsibilities.”).

332

CCW AMENDED MINES PROTOCOL art. 11.

333

United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065
UNTS 128, 130 (“The United States understands that - (A) no provision of the Protocol may be construed asaffecting the discretion of the United States to refuse assistance or to restrict or deny permission for the export ofequipment, material, or scientific or technological information for any reason; and (B) the Amended Mines Protocol
may not be used as a pretext for the transfer of weapons technology or the provision of assistance to the militarymining or military counter-mining capabilities of a State Party to the Protocol.”).
334

Department of State, Bureau of Political-Military Affairs, Fact Sheet: Changes to U.S. Anti-Personnel Landmine
Policy (Sept. 23, 2014) (“This means that [the] United States will: not use APL outside the Korean Peninsula; notassist, encourage, or induce anyone outside the Korean Peninsula to engage in activity prohibited by the Ottawa
Convention; and undertake to destroy APL stockpiles not required for the defense of the Republic of Korea. Thischange to U.S. APL policy builds on the announcement that the U.S. delegation made in June at the Third Review
Conference of the Ottawa Convention in Maputo, Mozambique, that the United States will not produce or otherwise
acquire any anti-personnel munitions that are not compliant with the Ottawa Convention, including to replace suchmunitions as they expire in the coming years.”).
335

Department of State, Bureau of Political-Military Affairs, Fact Sheet: New United States Policy on Landmines:
Reducing Humanitarian Risk and Saving Lives of United States Soldiers (Feb. 27, 2004) (“The United States has
committed to eliminate persistent landmines of all types from its arsenal.”).

401

international standards for self-destruction and self-deactivation. 336 In addition, the UnitedStates no longer has any non-detectable mine of any type in its arsenal. 337
The United States has a long practice of contributing significantly to humanitarian
demining efforts and other conventional weapons destruction programs. 338
6.12.14 Ottawa Convention on Anti-Personnel Landmines. The United States is not a
Party to the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer ofAnti-Personnel Mines and on Their Destruction. 339 This Convention is commonly called the
Ottawa Convention.
The United States has announced policy changes that align U.S. anti-personnel landmine
policy outside the Korean Peninsula with the key requirements of the Ottawa Convention. 340
Among other reasons, because the practice of the United States and other States remains
inconsistent with the prohibitions of the Ottawa Convention, its prohibitions do not reflect
customary international law. 341

336

Department of State, Bureau of Political-Military Affairs, Fact Sheet: New United States Policy on Landmines:
Reducing Humanitarian Risk and Saving Lives of United States Soldiers (Feb. 27, 2004) (“The United States willcontinue to develop non-persistent anti-personnel and anti-tank landmines. As with the current United States
inventory of non-persistent landmines, these mines will continue to meet or exceed international standards for selfdestruction and self-deactivation. This ensures that, after they are no longer needed for the battlefield, theselandmines will detonate or turn themselves off, eliminating the threat to civilians.”).
337

Department of State, Bureau of Political-Military Affairs, Fact Sheet: New United States Policy on Landmines:
Reducing Humanitarian Risk and Saving Lives of United States Soldiers (Feb. 27, 2004) (“Within one year, theUnited States will no longer have any non-detectable mine of any type in its arsenal.”).
338

Department of State, Bureau of Political-Military Affairs, To Walk the Earth in Safety: Documenting the UnitedStates’ 20 Year Commitment to Conventional Weapons Destruction, 6 (August 2013) (“In 1993, the United States
established the Demining Assistance Program and the Interagency Working Group (IWG) on Demining andLandmine Control, initiating a coordinated interagency aid effort to support international humanitarian mine action(HMA). Though the United States first provided HMA assistance in 1988, a coordinated and sustained U.S.
Government effort began with this IWG. Over the past two decades, the U.S. approach to mine action has expanded
to meet related needs in post-conflict environments, such as threats from ERW and at-risk SA/LW [small arms andlight weapons], including manportable air-defense systems (MANPADS). … Since 1993, the United States has
invested more than $2 billion in CWD programs in over 90 countries.”).
339

Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on
their Destruction, Sept. 18, 1997, 2056 UNTS 211.
340

Department of State, Bureau of Political-Military Affairs, Fact Sheet: Changes to U.S. Anti-Personnel Landmine
Policy (Sept. 23, 2014) (“President Clinton, in his 1994 address to the United Nations General Assembly, called forthe eventual elimination of anti-personnel landmines (APL). Today, the Obama Administration is announcing new
policy changes that bring the United States closer to that goal. Specifically, the United States is aligning our APL
policy outside the Korean Peninsula with the key requirements of the Ottawa Convention, the international treaty
prohibiting the use, stockpiling, production, and transfer of APL, which more than 160 countries have joined,
including all of our NATO Allies.”).
341

See, e.g., Eritrea Ethiopia Claims Commission, Partial Award: Central Front, Ethiopia’s Claim 2, ¶95 (Apr. 28,
2004) (“Landmines. As with other weredas [i.e., geographic districts], the evidence indicates that Eritrea madeextensive use of anti-personnel landmines, but it does not demonstrate a pattern of their unlawful use. For liability,
the Commission would have to conclude that landmines were used in ways that intentionally targeted civilians orwere indiscriminate. However, the available evidence suggests that landmines were extensively used as part of the402Many U.S. allies and coalition partners, including Australia, Canada, and the United
Kingdom, are parties to the Ottawa Convention. Article 1 of the Ottawa Convention prohibits
States Parties from using, developing, producing, otherwise acquiring, stockpiling, retaining, ortransferring to anyone, directly or indirectly, anti-personnel landmines, or to assist, encourage, or
induce, in any way, anyone to engage in any activity prohibited to a State Party under theConvention. Australia, Canada, and the United Kingdom have taken the position that its armed
forces would not violate the Ottawa Convention merely by reason of taking part in joint
operations with forces of an ally that is not bound by the Ottawa Convention and that uses antipersonnel mines. 342
6.13 CLUSTER MUNITIONSCluster munitions are not specifically prohibited or restricted by the law of war. DoD has
policies on cluster munitions. The use of cluster munitions, in certain circumstances, is likely to
reduce the risk of incidental harm as compared to other weapons.
6.13.1 Description of Cluster Munitions. Cluster munitions may be described as
munitions composed of a non-reusable canister or delivery body containing multiple,
conventional explosive submunitions. 343 Some munitions that may contain submunitions are notconsidered cluster munitions. For example, nuclear, chemical, and biological weapons, as well
as obscurants, pyrotechnics, non-lethal systems (e.g., leaflets), non-explosive kinetic effectsubmunitions (e.g., flechettes or rods), and landmines, generally are not considered cluster
munitions.
defenses of Eritrea’s trenches and field fortifications. Thus, the declarations citing landmine use also frequently
refer to the presence of Eritrean trenches in the area/kushet concerned. In principle, the defensive use of minefields
to protect trenches would be a lawful use under customary international law.”).
342

Australia, Statement on Ratification of the Convention on the Prohibition of the Use, Stockpiling, Production andTransfer of Anti-Personnel Mines and on Their Destruction, Jan. 14, 1999, 2057 UNTS 214, 218 (“It is theunderstanding of Australia that, in the context of operations, exercises or other military activity authorized by theUnited Nations or otherwise conducted in accordance with international law, the participation by the ADF, or
individual Australian citizens or residents, in such operations, exercises or other military activity conducted in
combination with the armed forces of States not party to the Convention which engage in activity prohibited under
the Convention would not, by itself, be considered to be in violation of the Convention.”); Canada, Statement on
Signature of the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel
Mines and on Their Destruction, Dec. 3, 1997, 2056 UNTS 211, 310 (“It is the understanding of the Government of
Canada that, in the context of operations, exercises or other military activity sanctioned by the United Nations orotherwise conducted in accordance with international law, the mere participation by the Canadian Forces, orindividual Canadians, in operations, exercises or other military activity conducted in combination with the armed
forces of States not party to the Convention which engage in activity prohibited under the Convention would not, byitself, be considered to be assistance, encouragement or inducement in accordance with the meaning of those terms
in article 1, paragraph 1 (c).”); 2004 UK MANUAL ¶6.13 (“Members of the United Kingdom armed forces, will not,however, be guilty of an offence merely by reason of taking part in joint operations with forces of an ally not boundby the Ottawa Convention which deploy landmines.”).
343

Robert Gates, Secretary of Defense, Memorandum re: DoD Policy on Cluster Munitions and Unintended Harmto Civilians, Jun. 19, 2008 (“For the purposes of this policy, cluster munitions are defined as munitions composed ofa non-reusable canister or delivery body containing multiple, conventional explosive submunitions. Excluded fromthe definition are nuclear, chemical, and biological weapons as well as obscurants, pyrotechnics, non-lethal systems(e.g., leaflets), non-explosive kinetic effect submunitions (e.g., flechettes or rods), or electronic effects. Landmine
submunitions are also excluded since they are covered by existing policy and international agreements.”).

403

6.13.2 Use of Cluster Munitions to Reduce the Risk of Incidental Harm. As withincendiary weapons, the use of cluster munitions, in certain circumstances, is likely to result inless incidental harm than the use of other weapons. 344 For example, cluster munitions have beenused against military objectives containing dangerous forces, such as dams, in order to reduce therisk that bombardment of these objectives would release such forces and cause incidental harm tothe civilian population. 345
6.13.3 DoD Policy on Cluster Munitions. DoD has developed policies to minimize thenegative humanitarian consequences that can sometimes be associated with cluster munitions. 346
Under a 2008 policy, the U.S. armed forces will, after 2018, only employ cluster munitions
containing submunitions that, after arming, do not result in more than 1% unexploded ordnance(UXO) across the range of intended operational environments. 347 Until the end of 2018, cluster
munitions that exceed the 1% UXO rate may not be used unless approved by the CombatantCommander. 348
6.13.4 Convention on Cluster Munitions. The United States is not a Party to theConvention on Cluster Munitions. 349 The United States has determined that its national security
interests cannot be fully ensured consistent with the terms of the Convention on Cluster
344

Robert Gates, Secretary of Defense, Memorandum re: DoD Policy on Cluster Munitions and Unintended Harmto Civilians, Jun. 19, 2008 (“DoD recognizes that blanket elimination of cluster munitions is unacceptable due not
only to negative military consequences but also due to potential negative consequences for civilians. Large-scaleuse of unitary weapons, as the only alternative to achieve military objectives, could result, in some cases, inunacceptable collateral damage and explosive remnants of war (ERW) issues.”). Refer to § 5.11.6 (Weaponeering(E.g., Selecting Appropriate Weapons, Aim Points)).
345

For example, W. Hays Parks, Linebacker and the Law of War, AIR UNIVERSITY REVIEW (Jan.-Feb. 1983)(During the Vietnam War, the North Vietnamese placed “AAA gun positions, ground-controlled intercept (GCI)
radar, and surface-to-air missile (SAM) sites atop or adjacent to dikes, and storing POL [petroleum, oil, andlubricants] alongside or on top of dikes as a shield against attack. All were legitimate targets. … When [the air
defenses] were finally authorized for attack during Linebacker I, it was with the stipulation that the targets were to
be attacked with weapons that would minimize the risk of structural damage to the dikes. This was accomplishedthrough the use of napalm, strafing, cluster munitions, and other antipersonnel weapons.”).
346

Robert Gates, Secretary of Defense, Memorandum re: DoD Policy on Cluster Munitions and Unintended Harmto Civilians, Jun. 19, 2008 (“The DoD policy above is intended to minimize the potential unintended harm tocivilians and civilian infrastructure of U.S. cluster munitions employment to the extent possible.”); William Cohen,
Memorandum re: DoD Policy on Submunition Reliability, Jan. 10, 2001 (“Submunition weapons employment inSouthwest Asia and Kosovo, and major theater war modeling, have revealed a significant unexploded ordnance(UXO) concern. … It is the policy of the DoD to reduce overall UXO through a process of improvement in
submunition system reliability-the desire is to field future submunitions with a 99% or higher functioning rate.
Submunition functioning rates may be lower under operational conditions due to environmental factors such as
terrain and weather.”).
347

Robert Gates, Secretary of Defense, Memorandum re: DoD Policy on Cluster Munitions and Unintended Harmto Civilians, Jun. 19, 2008 (“After 2018, the Military Departments and Combatant Commands will only employ
cluster munitions containing submunitions that, after arming, do not result in more than 1% unexploded ordnance(UXO) across the range of intended operational environments.”).
348

Robert Gates, Secretary of Defense, Memorandum re: DoD Policy on Cluster Munitions and Unintended Harmto Civilians, Jun. 19, 2008 (“Until the end of 2018, use of cluster munitions that exceed the 1% UXO rate must be
approved by the Combatant Commander.”).
349

Convention on Cluster Munitions, May 30, 2008, 2688 UNTS 39.

404

Munitions. 350 The United States has expressed the view that the Convention on Cluster
Munitions does not represent an emerging norm or reflect customary international law thatwould prohibit the use of cluster munitions in armed conflict. 351
The Convention on Cluster Munitions establishes for its States Parties a number ofprohibitions and restrictions on certain types of cluster munitions. 352 These rules include
prohibitions on assisting, encouraging, or inducing anyone to engage in any activity prohibited toa State Party. 353 Despite these restrictions, States Parties and their military personnel andnationals may engage in military cooperation and operations with States that are not Parties to
the Convention on Cluster Munitions that might engage in activities prohibited to a State
Party. 354 Yet, even during such military operations, the Convention on Cluster Munitions does
not authorize a State Party:(a) To develop, produce or otherwise acquire cluster munitions;(b) To itself stockpile or transfer cluster munitions;(c) To itself use cluster munitions; or(d) To expressly request the use of cluster munitions in cases where the choice of350

Harold Hongju Koh, Legal Adviser, Department of State, Opening Statement for the United States Delegation to
the Third Conference of the High Contracting Parties to CCW Protocol V on Explosive Remnants of War, Nov. 9,2009 (“We realize many delegations here are parties to the Convention on Cluster Munitions (CCM). However,many States, including the United States, have determined that their national security interests cannot be fully
ensured consistent with the terms of the CCM.”).
351

Ambassador Robert Wood, U.S. Permanent Representative to the Conference on Disarmament, Explanation ofVote at the 70th UN General Assembly First Committee on Draft Resolution L.49/Rev.1, “Implementation of theConvention on Cluster Munitions,” Nov. 4, 2015, 2015 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONALLAW 763, 764 (“In general, the lawfulness of the use of a type of weapon under international law does not dependon an absence of authorization, but instead depends upon whether the weapon is prohibited. The United States does
not accept by this or any other standard that the Convention on Cluster Munitions represents an emerging norm or
reflects customary international law that would prohibit the use of cluster munitions in armed conflict.”).
352

Convention on Cluster Munitions, art. 2(2), May 30, 2008, 2688 UNTS 39, 95 (“‘Cluster munition’ means aconventional munition that is designed to disperse or release explosive submunitions each weighing less than 20
kilograms, and includes those explosive submunitions. It does not mean the following: … (c) A munition that, inorder to avoid indiscriminate area effects and the risks posed by unexploded submunitions, has all of the following
characteristics: (i) Each munition contains fewer than ten explosive submunitions; (ii) Each explosive submunition
weighs more than four kilograms; (iii) Each explosive submunition is designed to detect and engage a single target
object; (iv) Each explosive submunition is equipped with an electronic self-destruction mechanism; (v) Each
explosive submunition is equipped with an electronic self-deactivating feature;”).
353

See, e.g., Convention on Cluster Munitions, art. 1(1), May 30, 2008, 2688 UNTS 39, 94 (“Each State Party
undertakes never under any circumstances to: (a) Use cluster munitions; (b) Develop, produce, otherwise acquire,stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions; (c) Assist, encourage or induce
anyone to engage in any activity prohibited to a State Party under this Convention.”).
354

Convention on Cluster Munitions, art. 21(3), May 30, 2008, 2688 UNTS 39, 113 (“Notwithstanding theprovisions of Article 1 of this Convention and in accordance with international law, States Parties, their military
personnel or nationals, may engage in military cooperation and operations with States not party to this Convention
that might engage in activities prohibited to a State Party.”).

405

munitions used is within its exclusive control. 355
6.14 INCENDIARY WEAPONSThe use of incendiary weapons is permissible, but subject to certain restrictions in orderto reduce the risk of incidental harm to civilians.
6.14.1 Definition of an Incendiary Weapon. An “incendiary weapon” is any weapon or
munition that is primarily designed to set fire to objects or to cause burn injury to persons
through the action of flame, heat, or combination thereof, produced by a chemical reaction of a
substance on the target. 356 Only “pure” incendiaries, such as napalm or the type of incendiarybombs used in World War II and Korea, are regulated as incendiary weapons. 357
6.14.1.1 Fire or Burn Injury Produced by Chemical Reaction of a Substance on
the Target. Incendiary weapons use a chemical reaction of a substance on the target to create
flame or heat that destroys or injures.
On the other hand, laser weapons, even if their primary effect is to set fire to objects or
cause burn injuries, do not constitute “incendiary weapons” under CCW Protocol III on
Incendiary Weapons because the fire or burn injuries are not produced by a chemical reaction of
a substance that is delivered to the target. 358 Similarly, chemical weapons cause death or otherharm through the toxic properties of chemicals themselves, rather than the chemicals causing afire or burn injury. 359
6.14.1.2 Examples of Incendiary Weapons. Examples of incendiary weapons
include:355

360

Convention on Cluster Munitions, art. 21(4), May 30, 2008, 2688 UNTS 39, 113.

356

CCW PROTOCOL III ON INCENDIARY WEAPONS art. 1(1) (defining incendiary weapon as “any weapon or
munition which is primarily designed to set fire to objects or to cause burn injury to persons through the action offlame, heat, or combination thereof, produced by a chemical reaction of a substance delivered on the target.”).
357

Article-by-Article Analysis of CCW Protocol III on Incendiary Weapons, 2, Enclosure B to Warren Christopher,
Letter of Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINESPROTOCOL, PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 38 (“As aresult, the Protocol only covers ‘pure’ incendiaries, such as napalm or the type of incendiary bombs used in WorldWar II and Korea.”).
358

Article-by-Article Analysis of CCW Protocol III on Incendiary Weapons, 2, Enclosure B to Warren Christopher,
Letter of Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINESPROTOCOL, PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 38(“Similarly, laser weapons are not covered even if their primary effect is to set fire to objects or cause burn injuries,
since they do not deliver burning substances on the target.”).
359

Refer to § 6.8.3.1 (Definition of Chemical Weapons).

360

CCW PROTOCOL III ON INCENDIARY WEAPONS art. 1(a) (“Incendiary weapons can take the form of, for example,
flame throwers, fougasses, shells, rockets, grenades, mines, bombs and other containers of incendiary substances.”).

406

•

flame throwers; 361•

fougasse; 362 and•shells, rockets, grenades, mines, bombs, and other containers of incendiary substances,such as napalm and thermite. 363

6.14.1.3 Excluded From the Definition of Incendiary Weapons – Weapons With
Incidental Incendiary Effects. Incendiary weapons do not include munitions that may haveincidental incendiary effects, such as illuminants, tracers, or smoke or signaling systems. 364
For example, white phosphorous is a munition that contains fragments of white
phosphorous. It is intended primarily for marking or illuminating a target or masking friendly
force movement by creating smoke.
Similarly, tracer rounds are not incendiary weapons as they are designed to enable agunner to direct his or her rounds onto a target rather than to set fire to objects.
6.14.1.4 Excluded From the Definition of Incendiary Weapons – Certain
Combined-Effects Munitions. Certain combined-effects munitions are excluded from thedefinition of incendiary weapons. These munitions are designed to combine penetration, blast,or fragmentation effects with an additional incendiary effect, in which the incendiary effect is not
specifically designed to cause burn injury to persons, but to be used against objects that are
military objectives, such as armored vehicles, aircraft, and installations or facilities. Such361

See also International Committee of the Red Cross, Conference of Government Experts on the Use of Certain
Conventional Weapons (Lucerne, 24.9—18.10.1974): Report, ¶¶69-70 (1975) (“Experts referred to three different
types of flamethrower: portable, mechanized and emplaced. Emplaced flamethrowers, and such things as flame
fougasses and incendiary landmines, find their principal application in perimeter defence, both of fixed and of
temporary positions. … Portable and mechanized flamethrowers were seen to have several applications of which thetwo most important were the attack on pillboxes, and other such strongpoints, and the burning away of vegetationfrom positions suspected of concealing enemy units.”).

362

For example, DEPARTMENT OF THE ARMY FIELD MANUAL 3-11 / MARINE CORPS WARFIGHTING PUBLICATION 33.7.2, Flame, Riot Control Agents and Herbicide Operations (Aug. 19, 1996) (“The flame fougasse is a variation ofan exploding FFE [flame field expedient] in which the flame is projected by explosive means over a preselected
area. An excellent defensive weapon, the fougasse can also provide illumination as well as produce casualties. On
Defensive Line Wyoming, during the Korean Conflict, elements of the 1st Cavalry Division emplaced 1,000 drumsof FFEs in front of fighting positions. The drums were set in the ground at a 45-degree angle with the opening
toward the enemy. Two examples of flame fougasses are the propellant charge container and the 55-gallon
container.”).
363

W. Hays Parks, The Protocol on Incendiary Weapons, 30 INTERNATIONAL REVIEW OF THE RED CROSS 543-44(Nov.-Dec. 1990) (“Thermite weapons, which contain a mixture of powdered ferric oxide and powdered or granularaluminium, are antimateriel and fire-sustaining. Thermite bombs, which burn at temperatures of about 2,400
degrees Centigrade, were the primary antimateriel incendiaries used by air forces of both sides in World Wars I and
II. A later version contained barium nitrate and is called thermate, while a more recent variant is triethylaluminium(TEA). There has been little use of thermite-type bombs since 1945, in part because there have been few air
campaigns directed against industrial targets.”).
364

CCW PROTOCOL III ON INCENDIARY WEAPONS art. 1(b) (“Incendiary weapons do not include: (i) Munitions
which may have incidental incendiary effects, such as illuminants, tracers, smoke or signalling systems;”).

407

weapons may include armor-piercing projectiles, fragmentation shells, explosive bombs, andsimilar combined-effects munitions. 365
6.14.2 Use of Incendiary Weapons Is Permissible. Although subject to certain specificrestrictions described in § 6.14.3 (Restrictions on the Use of Incendiary Weapons), the use of
incendiary weapons, including anti-personnel use, is not prohibited.
6.14.2.1 Use of Non-Incendiary Weapons to Set Fire to Objects or Cause Burn
Injury to Persons. The use of non-incendiary weapons to set fire to objects or to cause burninjury is technically not subject to the additional restrictions described in § 6.14.3 (Restrictions
on the Use of Incendiary Weapons). For example, white phosphorus may be used as an antipersonnel weapon. 366 However, such use must comply with the general rules for the conduct ofhostilities, including the principles of discrimination and proportionality. 367 In addition, feasible
precautions to reduce the risk of harm to civilians must be taken. 368
As a practical matter, however, it may be more effective to attack enemy combatants
through other means, rather than seeking to cause them burn injury. 369
6.14.3 Restrictions on the Use of Incendiary Weapons. As with other weapons, it isprohibited to make the civilian population as such, individual civilians, or civilian objects theobject of attack by incendiary weapons. 370 In addition, it is specifically prohibited to makeforests or other kinds of plant cover the object of attack by incendiary weapons, except whensuch natural elements are used to cover, conceal, or camouflage combatants or other military365

CCW PROTOCOL III ON INCENDIARY WEAPONS art. 1(b) (“Incendiary weapons do not include: … (ii) Munitions
designed to combine penetration, blast or fragmentation effects with an additional incendiary effect, such as armourpiercing projectiles, fragmentation shells, explosive bombs and similar combined-effects munitions in which the
incendiary effect is not specifically designed to cause burn injury to persons, but to be used against military
objectives, such as armoured vehicles, aircraft and installations or facilities.”).
366

For example, Captain James T. Cobb, First Lieutenant Christopher A. LaCour, and Sergeant First Class William
H. Hight, After-Action Review (AAR) for the Battle of Fallujah, ¶9b, reprinted in FIELD ARTILLERY 23, 26 (Mar.Apr. 2005) (“White Phosphorous [WP]. WP proved to be an effective and versatile munition. We used it forscreening missions at two breeches and, later in the fight, as a potent psychological weapon against the insurgents intrench lines and spider holes when we could not get effects on them with HE [High Explosive]. We fired ‘shake andbake’ missions at the insurgents, using WP to flush them out and HE to take them out.”).
367

Refer to § 5.5 (Discrimination in Conducting Attacks); § 5.12 (Proportionality – Prohibition on Attacks Expected
to Cause Excessive Incidental Harm).
368

Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk ofHarm to Protected Persons and Objects).
369

For example, Peter Pace, Chairman of the Joint Chiefs of Staff, News Briefing with Secretary of Defense Donald
Rumsfeld and Gen. Peter Pace, Nov. 29, 2005 (“No armed force in the world goes to greater effort than your armed
force to protect civilians and to be very precise in the way we apply our power. A bullet goes through skin evenfaster than white phosphorus does. So I would rather have the proper instrument applied at the proper time as
precisely as possible to get the job done in a way that kills as many of the bad guys as possible and does as little
collateral damage as possible. That is just the nature of warfare.”).
370

CCW PROTOCOL III ON INCENDIARY WEAPONS art. 2(1) (“It is prohibited in all circumstances to make thecivilian population as such, individual civilians or civilian objects the object of attack by incendiary weapons.”).

408

objectives, or are themselves military objectives. 371
Similarly, the risks that the use of an incendiary weapon may pose to the civilian
population should be considered in a proportionality analysis. 372
As with the use of other weapons, commanders must take feasible precautions to reduce
the risk of incidental harm to civilians when using incendiary weapons. 373
6.14.3.1 Use Against Military Objectives Located in Concentrations of Civilians.
Subject to a reservation by the United States discussed below, two additional rules apply to theuse of incendiary weapons against military objectives that are located within a concentration ofcivilians. A “concentration of civilians” means any concentration of civilians, be it permanent or
temporary, such as in inhabited parts of cities, in inhabited towns or villages, or in camps orcolumns of refugees or evacuees, or groups of nomads. 374
First, subject to the U.S. reservation discussed below, it is prohibited to use air-delivered
incendiary weapons to make any military objective located within a concentration of civilians theobject of attack. 375
Second, subject to the U.S. reservation discussed below, it is also prohibited to use
incendiary weapons other than air-delivered incendiary weapons (e.g., ground artillery) to makeany military objective located within a concentration of civilians the object of attack. However,
it is not prohibited to use such incendiary weapons against a military objective located within aconcentration of civilians, when such military objective is clearly separated from theconcentration of civilians and all feasible precautions are taken with a view to limiting the
incendiary effects to the military objective and to avoiding, and in any event to minimizing,
incidental loss of civilian life, injury to civilians, and damage to civilian objects. 376
6.14.3.2 U.S. Reservation to CCW Protocol III on Incendiary Weapons. The
371

CCW PROTOCOL III ON INCENDIARY WEAPONS art. 2(4) (“It is prohibited to make forests or other kinds of plant
cover the object of attack by incendiary weapons except when such natural elements are used to cover, conceal or
camouflage combatants or other military objectives, or are themselves military objectives.”).
372

Refer to § 5.12 (Proportionality – Prohibition on Attacks Expected to Cause Excessive Incidental Harm).

373

Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk ofHarm to Protected Persons and Objects).
374

CCW PROTOCOL III ON INCENDIARY WEAPONS art. 1(2) (“A ‘concentration of civilians’ means any concentrationof civilians, be it permanent or temporary, such as in inhabited parts of cities, or inhabited towns or villages, or as incamps or columns of refugees or evacuees, or groups of nomads.”).
375

CCW PROTOCOL III ON INCENDIARY WEAPONS art. 2(2) (“It is prohibited in all circumstances to make any
military objective located within a concentration of civilians the object of attack by air-delivered incendiary
weapons.”).
376

CCW PROTOCOL III ON INCENDIARY WEAPONS art. 2(3) (prohibiting making “any military objective locatedwithin a concentration of civilians the object of attack by means of incendiary weapons other than air-delivered
incendiary weapons, except when such military objective is clearly separated from the concentration of civilians andall feasible precautions are taken with a view to limiting the incendiary effects to the military objective and to
avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian
objects.”).

409

United States has taken a reservation to CCW Protocol III on Incendiary Weapons for the
purpose of improving the protection of the civilian population. 377 Thus, for the U.S. armed
forces, incendiary weapons may be used against military objectives located in concentrations ofcivilians where it is judged that such use would cause fewer casualties and/or less collateral
damage than alternative weapons. However, in such cases, all feasible precautions should betaken with a view to limiting the incendiary effects to the military objective and to avoiding, andin any event minimizing, incidental loss of civilian life, injury to civilians, and damage tocivilian objects. 378
For example, the use of incendiary weapons might be the means of attacking enemy
biological weapons facilities that poses the least risk of incidental harm to the civilian
population. 379 Similarly, the use of incendiary weapons might reduce the number of sorties or
attacks, and thereby further reduce the risk of incidental harm to the civilian population. 380
6.15 LASER WEAPONSIn general, laser weapons are permissible. They may be used against enemy combatants,
including to kill and injure them. However, the use of “blinding laser” weapons is prohibited. In
addition, feasible precautions shall be taken in the employment of laser systems to avoid causing
permanent blindness.

377

Harold Koh, Legal Adviser, Department of State, Letter to Paul Seger, Legal Adviser of Switzerland regarding
Switzerland’s Position on the U.S. Reservation to Protocol III of the Convention on Certain Conventional Weapons,
Dec. 30, 2009 (“In our view, this reservation is compatible with the object and purpose of Protocol III. We take theview that the object and purpose of Protocol III is to protect civilians from the collateral damage associated with theuse of incendiary weapons. The narrow reservation taken by the United States is not incompatible with this object
and purpose. In fact, this reservation ensures that the United States has the ability to provide for even greater
protection of the civilian population, consistent with Protocol III.”).
378

United States, Statement on Consent to Be Bound by CCW Protocol III on Incendiary Weapons, Jan. 21, 2009,
2562 UNTS 36 (“The United States of America, with reference to Article 2, paragraphs 2 and 3, reserves the right touse incendiary weapons against military objectives located in concentrations of civilians where it is judged that suchuse would cause fewer casualties and/or less collateral damage than alternative weapons, but in so doing will take all
feasible precautions with a view to limiting the incendiary effects to the military objective and to avoiding, and inany event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.”). Referto § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk of Harm toProtected Persons and Objects).
379

Article-by-Article Analysis of CCW Protocol III on Incendiary Weapons, 3, Enclosure B to Warren Christopher,
Letter of Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINESPROTOCOL, PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 39(“Incendiaries are the only weapons which can effectively destroy certain counter-proliferation targets such as
biological weapons facilities which require high heat to eliminate bio-toxins. To use only high explosives would
risk the widespread release of dangerous contaminants with potentially disastrous consequences for the civilian
population.”).
380

Article-by-Article Analysis of CCW Protocol III on Incendiary Weapons, 3-4, Enclosure B to Warren
Christopher, Letter of Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDEDMINES PROTOCOL, PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 3940 (“Certain flammable military targets are also more readily destroyed by incendiaries. For example, a fuel depot
could require up to eight times the bombs and sorties to destroy using only high explosives rather than incendiaries.
Such an increase means a significantly greater humanitarian risk of collateral damage.”).

410

6.15.1 Prohibition on “Blinding Laser” Weapons. It is prohibited to employ laser
weapons specifically designed, as their sole combat function or as one of their combat functions,to cause permanent blindness to unenhanced vision, that is, to the naked eye or to the eye withcorrective eyesight devices. 381
Any use of such weapons is prohibited, including uses that are not intended to blind.
Although the U.S. armed forces and other militaries use lasers in a variety of roles, suchas range-finding or causing temporary loss of sight, the United States has not developed or
fielded a “blinding laser” weapon.
6.15.1.1 Laser Weapon Specifically Designed, as Its Sole Combat Function or
One of Its Combat Functions. To fall under the above prohibition, the laser device must be
specifically designed, as a combat function, to cause permanent blindness to unenhanced vision.
On the other hand, blinding as an incidental or collateral effect of the legitimate military
employment of laser systems, including laser systems used against optical equipment, is notprohibited. 382 Thus, laser systems and devices used for rangefinding, target designation,
jamming, dazzling, communications, and weapons guidance do not fall under this prohibition,even if serious eye injury or permanent blindness may incidentally occur through their use. 383
Similarly, incidental blinding from the use of lasers that are designed to attack or destroy
material or injure persons as a combat function (but are not specifically designed to blind) would
be permissible.
6.15.1.2 Permanent Blindness to Unenhanced Vision. “Permanent blindness” isdefined as irreversible and uncorrectable loss of vision that is seriously disabling with noprospect of recovery. Serious disability is equivalent to visual acuity of less than 20/200 Snellenmeasured using both eyes. 384
Lasers that are designed to cause a temporary loss of sight, such as laser “dazzlers,”

381

CCW PROTOCOL IV ON BLINDING LASER WEAPONS art. 1 (“It is prohibited to employ laser weapons specificallydesigned, as their sole combat function or as one of their combat functions, to cause permanent blindness tounenhanced vision, that is to the naked eye or to the eye with corrective eyesight devices.”).
382

CCW PROTOCOL IV ON BLINDING LASER WEAPONS art. 3 (“Blinding as an incidental or collateral effect of thelegitimate military employment of laser systems, including laser systems used against optical equipment, is notcovered by the prohibition of this Protocol.”).

383

W. Hays Parks, Special Assistant to The Judge Advocate General of the Army for Law of War Matters,
Memorandum of Law: Travaux Preparatoires and Legal Analysis of Blinding Laser Weapons Protocol, reprinted in
THE ARMY LAWYER 33, 36 (Jun. 1997) (“Choice of the term weapon was intentional to distinguish the prohibited
system from lasers which are used for rangefinding, jamming, dazzling, communications, weapons guidance, andsimilar purposes.”).
384

CCW PROTOCOL IV ON BLINDING LASER WEAPONS art. 4 (“For the purpose of this protocol ‘permanent
blindness’ means irreversible and uncorrectable loss of vision which is seriously disabling with no prospect ofrecovery. Serious disability is equivalent to visual acuity of less than 20/200 Snellen measured using both eyes.”).

411

would not fall under this prohibition. 385
Unenhanced vision means the naked eye or the eye with corrective eyesight devices, suchas ordinary glasses or contact lenses. 386 For example, unenhanced vision does not mean vision
through direct-view optics, such as binoculars, a telescopic sight, night-vision goggles, or similar
devices used to increase vision beyond that of an ordinary person without such enhancement.
Persons using direct-view optics may have an increased risk of eye injury from lasers.
6.15.2 Feasible Precautions in the Employment of Laser Systems to Avoid the Incident of
Permanent Blindness. In the employment of laser systems, all feasible precautions shall be taken
to avoid the incidence of permanent blindness to unenhanced vision. 387 Feasible precautions
may be understood to include those that are practicable or practically possible taking into
account all circumstances ruling at the time, including humanitarian and militaryconsiderations. 388 Such precautions include training of the armed forces and other practicalmeasures, such as promulgating doctrine and rules of engagement. 389
6.15.2.1 Use of Non-Prohibited Laser Systems to Blind Is Not Absolutely
Prohibited. Although feasible precautions should be taken to avoid blinding, the use of laser
systems (that are not prohibited as blinding laser weapons) to blind enemy combatants is notprohibited if avoiding such harm is not feasible, i.e., if such harm is militarily necessary. For
example, it would not be prohibited for a soldier to use a non-prohibited laser system to blind an
enemy combatant to save the user’s life. 390

385

For example, Defense Science Board, Defense Science Board Task Force on Directed Energy Weapons, 13 (Dec.
2007) (“Laser-based optical incapacitation devices have been deployed to Iraq in response to urgent fielding
requirements for a non-lethal means to warn or temporarily incapacitate individuals. Marines employing thesedevices have reported that ‘they consistently defuse potential escalation of force incidents.’ Laser devices currently
employed by the Marine Corps are green laser (532 nm) systems emitting a strong beam that can temporarily reduce
visual acuity at a distance of 300m or more. It has a nominal ocular hazard minimum distance that the operator must
avoid to preclude risk of eye injury. The lasers have been successfully used in convoy operations, mounted anddismounted patrols, vehicle check points, and entry control points. Army units have also purchased laser opticalincapacitation devices of various types, principally for use in escalation of force situations and to warn or deter
drivers of cars approaching checkpoints, U.S. convoys, or fixed-site installations.”).
386

CCW PROTOCOL IV ON BLINDING LASER WEAPONS art. 1 (defining “unenhanced vision” as “the naked eye or …
the eye with corrective eyesight devices.”).
387

CCW PROTOCOL IV ON BLINDING LASER WEAPONS art. 2 (“In the employment of laser systems, the HighContracting Parties shall take all feasible precautions to avoid the incidence of permanent blindness to unenhanced
vision.”).

388

Refer to § 5.2.3.2 (What Precautions Are Feasible).

389

CCW PROTOCOL IV ON BLINDING LASER WEAPONS art. 2 (“Such precautions shall include training of their armed
forces and other practical measures.”).

390

W. Hays Parks, Special Assistant to The Judge Advocate General of the Army for Law of War Matters,
Memorandum of Law: Travaux Preparatoires and Legal Analysis of Blinding Laser Weapons Protocol, reprinted in
THE ARMY LAWYER 33, 36 (Jun. 1997) (“Finally, although Article 2 requires use of a laser device in a mannerconsistent with the spirit and intent of the Protocol, the delegations could not agree that a soldier should be
criminally responsible if, in an in extremis situation, he employs a laser device against an enemy combatant to savethe user’s life.”).

412

6.16 RIOT CONTROL AGENTS
The use of riot control agents is subject to certain prohibitions and restrictions. Riot
control agents are widely used by governments for law enforcement purposes (such as crowd
control), but are prohibited as a method of warfare.
6.16.1 Definition of Riot Control Agents. Riot control agents mean any chemical not
listed in a Schedule Annexed to the Chemical Weapons Convention, which can produce rapidly
in humans sensory irritation or disabling physical effects that disappear within a short time
following termination of exposure. 391 Riot control agents include, for example, tear gas andpepper spray, but generally are understood to exclude the broader class of non-lethal weaponsthat may sometimes be used for riot control or other similar purposes, such as foams, watercannons, bean bags, or rubber bullets. 392
The United States does not consider riot control agents to be “chemical weapons,” 393 orotherwise to fall under the prohibition against asphyxiating, poisonous, or other gases, and all
analogous liquids, materials, or devices. 394
6.16.2 Prohibition on Use of Riot Control Agents as a Method of Warfare. It is
prohibited to use riot control agents as a method of warfare. 395 The United States has understood
this prohibition not to prohibit the use of riot control agents in war in defensive military modes tosave lives, such as use of riot control agents:•

in riot control situations in areas under direct and distinct U.S. military control, including

391

CHEMICAL WEAPONS CONVENTION art. 2(7) (“‘Riot Control Agent’ means: Any chemical not listed in a
Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear
within a short time following termination of exposure.”).
392

Joseph Benkert, Principal Deputy Assistant Secretary of Defense for International Security Policy, Testimony on
U.S. policy and practice with respect to the use of riot control agents by the U.S. Armed Forces before the Senate
Committee on Armed Services, Subcommittee on Readiness and Management Support, Sept. 27, 2006, 2006 DIGEST
OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1224 (“[W]hen I refer to ‘riot control agents’ in my testimony
today I am referring to chemicals not listed in a Chemical Weapons Convention schedule which can produce rapidly
in humans sensory irritation or disabling physical effects which disappear within a short time following terminationof exposure. This includes for example, tear gas and pepper spray. I am not referring to the broader class of nonchemical non-lethal weapons that may sometimes be used for riot control or other similar purposes such as foams,
water cannons, bean bags, or rubber bullets.”).
393

Joseph Benkert, Principal Deputy Assistant Secretary of Defense for International Security Policy, Testimony on
U.S. policy and practice with respect to the use of riot control agents by the U.S. Armed Forces before the Senate
Committee on Armed Services, Subcommittee on Readiness and Management Support, Sept. 27, 2006, 2006 DIGEST
OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1223-24 (“The Administration agrees with the policy
statement in the National Defense Authorization Act for FY2006, section 1232 (the ‘Ensign Amendment’); namely,‘It is the policy of the United States that riot control agents are not chemical weapons … .’”).
394

See Statement by Secretary Rusk, Mar. 24, 1965, 52 DEPARTMENT OF STATE BULLETIN 528 (Apr. 12, 1965)(explaining that tear gas used by U.S. forces in Vietnam is not “gas that is prohibited by the Geneva convention of1925 or any other understandings about the use of gas”). Refer to § 6.8.2 (Asphyxiating, Poisonous, or Other Gases,
and All Analogous Liquids, Materials, or Devices).

395

CHEMICAL WEAPONS CONVENTION art. 1(5) (“Each State Party undertakes not to use riot control agents as amethod of warfare.”).

413

controlling rioting POWs; 396•

in situations in which civilians are used to mask or screen attacks and civilian casualties
can be reduced or avoided; 397•

in rescue missions in remotely isolated areas, of downed aircrews and passengers, andescaping prisoners; and•in rear echelon areas outside the zone of immediate combat to protect convoys from civil
disturbances, terrorists, and paramilitary organizations.

These uses are as articulated in Executive Order 11850. 398 Even though Executive Order11850 predated the Chemical Weapons Convention (which could have created legal obligations
that were inconsistent with Executive Order 11850), interpreting the Chemical Weapons
Convention consistent with Executive Order 11850 was a condition of the Senate giving its
advice and consent to ratification of the Chemical Weapons Convention. 399 Thus, Executive
Order 11850 has remained an important part of U.S. policy on the use of riot control agents. 400396

For example, WALTER G. HERMES, UNITED STATES ARMY IN THE KOREAN WAR: TRUCE TENT AND FIGHTINGFRONT 256-57 (1992) (“Armed with stones, flails, sharpened tent poles, steel pipes, and knives, the defiant prisoners[held during the Korean War] screamed insults and challenges. The infantry maintained excellent discipline, using
tear gas and concussion grenades to break up the prisoners’ opposition. Herding the prisoners into a corner, theU.N. troops forced them into their new compound. Only one prisoner was killed and twenty-nine were wounded asagainst one U.S. injury.”).
397

For example, JACK SHULIMSON & MAJOR CHARLES M. JOHNSON, U.S. MARINES IN VIETNAM: THE LANDING AND
THE BUILDUP 1965, 91 (1978) (“Operation STOMP unfolded according to plan. Company H made its LVT assault

through the mud flats of Qui Nhon bay while Company F landed by helicopter to cut off the VC avenues of retreat.
The two companies closed their cordon around the Viet Cong, killing 26 and capturing three. With escape denied,the enemy went underground, taking many local peasants with them for use as human shields. During the mop-upof the area, a much-publicized action occurred. As the Marines slowly and methodically searched out a complex oftunnels, they threw in tear gas grenades to flush out the occupants. Seventeen VC were forced from hiding in thisfashion, as well as more than 300 women, children, and old men, not one of whom was harmed.”).
398

Executive Order 11850, Renunciation of Certain Uses in War of Chemical Herbicides and Riot Control Agents,
40 FEDERAL REGISTER 16187 (Apr. 8, 1975) (“The United States renounces, as a matter of national policy, … firstuse of riot control agents in war except in defensive military modes to save lives such as: (a) Use of riot control
agents in riot control situations in areas under direct and distinct U.S. military control, to include controlling rioting
prisoners of war. (b) Use of riot control agents in situations in which civilians are used to mask or screen attacks
and civilian casualties can be reduced or avoided. (c) Use of riot control agents in rescue missions in remotely
isolated areas, of downed aircrews and passengers, and escaping prisoners. (d) Use of riot control agents in rearechelon areas outside the zone of immediate combat to protect convoys from civil disturbances, terrorists andparamilitary organizations.”).
399

Senate, Conditions to Ratification of the Chemical Weapons Convention, Senate Resolution 75, 105th Congress
143 CONGRESSIONAL RECORD S3651, S3657 (1997) (“The President shall take no measure, and prescribe no rule orregulation, which would alter or eliminate Executive Order 11850 of April 8, 1975.”).
400

Joseph Benkert, Principal Deputy Assistant Secretary of Defense for International Security Policy, Testimony on
U.S. policy and practice with respect to the use of riot control agents by the U.S. Armed Forces before the Senate
Committee on Armed Services, Subcommittee on Readiness and Management Support, Sept. 27, 2006, 2006 DIGEST
OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1223-24 (“The policy governing the use of riot control agentsby the U.S. Armed Forces is expressed principally in the Chemical Weapons Convention, the resolution of
ratification of the Chemical Weapons Convention, and Executive Order 11850 [Renunciation of Certain Uses in414

In addition to being permitted in war in defensive military modes to save lives, it is notprohibited to use riot control agents in military operations outside of war or armed conflict.
Specifically, the United States has taken the position that riot control agents may be used in the
conduct of:•peacetime military operations within an area of ongoing armed conflict when the UnitedStates is not a party to the conflict;•consensual peacekeeping operations when the use of force is authorized by the receiving
state, including operations pursuant to Chapter VI of the United Nations Charter; and•peacekeeping operations when force is authorized by the Security Council under Chapter
VII of the United Nations Charter. 401

6.17 HERBICIDESThe United States has renounced, as a matter of national policy, first use of herbicides in
war except use, under regulations applicable to their domestic use, for control of vegetation
within U.S. bases and installations or around their immediate defensive perimeters. 402
6.17.1 Definition of Herbicide. An herbicide is a chemical compound that will kill or
damage plants. Herbicides that are harmless to human beings are not prohibited under the rule

War of Chemical Herbicides and Riot Control Agents (1975)]. The Administration agrees with the policy statementin the National Defense Authorization Act for FY2006, section 1232 (the ‘Ensign Amendment’); namely, ‘It is thepolicy of the United States that riot control agents are not chemical weapons and that the President may authorize
their use as legitimate, legal, and nonlethal alternatives to the use of force that, as provided in Executive Order11850 (40 Fed. Reg. 16187) and consistent with the resolution of ratification of the Chemical Weapons Convention,
may be employed by members of the Armed Forces in war in defensive military modes to save lives, including theillustrative purposes cited in Executive Order 11850.’”) (insertions in original).
401

Senate, Conditions to Ratification of the Chemical Weapons Convention, Senate Resolution 75, 105th Congress
143 CONGRESSIONAL RECORD S3651, S3657 (1997) (“Prior to the deposit of the United States instrument of
ratification, the President shall certify to Congress that the United States is not restricted by the Convention in its useof riot control agents, including the use against combatants who are parties to a conflict, in any of the following
cases: (i) UNITED STATES NOT A PARTY. — The conduct of peacetime military operations within an area of ongoingarmed conflict when the United States is not a party to the conflict (such as recent use of the United States Armed
Forces in Somalia, Bosnia, and Rwanda). (ii) CONSENSUAL PEACEKEEPING. — Consensual peacekeeping operations
when the use of force is authorized by the receiving state, including operations pursuant to Chapter VI of the United
Nations Charter. (iii) CHAPTER VII PEACEKEEPING. — Peacekeeping operations when force is authorized by the
Security Council under Chapter VII of the United Nations Charter.”); William J. Clinton, Message to the Senate on
the Chemical Weapons Convention, Apr. 25, 1997, 1997-I PUBLIC PAPERS OF THE PRESIDENTS 495, 497 (“Inaccordance with Condition (26) on Riot Control Agents, I have certified that the United States is not restricted by
the Convention in its use of riot control agents in various peacetime and peacekeeping operations. These aresituations in which the United States is not engaged in a use of force of a scope, duration and intensity that would
trigger the laws of war with respect to U.S. forces.”).
402

Executive Order 11850, Renunciation of Certain Uses in War of Chemical Herbicides and Riot Control Agents,
40 FEDERAL REGISTER 16187 (Apr. 8, 1975) (“The United States renounces, as a matter of national policy, first useof herbicides in war except use, under regulations applicable to their domestic use, for control of vegetation within
U.S. bases and installations or around their immediate defensive perimeters.”).

415

against the use of poison or poisoned weapons. 403
6.17.2 Chemical Weapons Convention and Herbicides. The Chemical Weapons
Convention does not add any new constraints on the use of herbicides. 404 The Chemical
Weapons Convention addresses toxic chemicals that cause death, temporary incapacitation, or
permanent harm to humans or animals, rather than plants. 405 Moreover, even if an herbicide
were such a toxic chemical, its use would likely be for a purpose not prohibited by the Chemical
Weapons Convention. 406
6.17.3 ENMOD Convention and Herbicides. Under certain circumstances, the use ofherbicides could be prohibited by the ENMOD Convention. 407 However, the use of herbicides tocontrol vegetation within U.S. bases and installations or around their immediate defensive
perimeters has been understood by the United States to be permitted under international law. 408
6.17.4 Authority Under Domestic Law to Employ Herbicides in War. Use of herbicides
in war by the U.S. armed forces requires advance Presidential approval. 409 Additional
regulations govern the use of herbicides.
6.18 NUCLEAR WEAPONS
There is no general prohibition in treaty or customary international law on the use of
nuclear weapons. 410 The United States has not accepted a treaty rule that prohibits the use of403

Refer to § 6.8.1.2 (Death or Permanent Disability to Persons).

404

Article-by-Article Analysis of the Chemical Weapons Convention, 2-3, Attachment to Peter Tarnoff, Acting,Letter of Submittal, Nov. 20, 1993, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CHEMICAL WEAPONSCONVENTION 2-3 (“The seventh preambular paragraph, although not legally binding, nevertheless recognizes theprohibition, embodied in the pertinent agreements and relevant principles of international law, of the use ofherbicides as a method of warfare. Thus, the Convention does not add any new constraints on the use ofherbicides.”).
405

Refer to § 6.8.3.1 (Definition of Chemical Weapons).

406

Refer to § 6.8.3.4 (Certain Uses of Toxic Chemicals Not Prohibited).

407

Second Review Conference of the Parties to the ENMOD Convention in September 1992, Final Declaration,(“The Conference confirms that the military or any other hostile use of herbicides as an environmental modification
technique in the meaning of Article II [of the ENMOD Convention] is a method of warfare prohibited by Article I[of the ENMOD Convention] if such use of herbicides upsets the ecological balance of a region, thus causingwidespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party [tothe ENMOD Convention].”).
408

Article-by-Article Analysis of the Chemical Weapons Convention, 3, Attachment to Peter Tarnoff, Acting, Letterof Submittal, Nov. 20, 1993, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CHEMICAL WEAPONS CONVENTION
3 (“It is the understanding of the United States that the uses of herbicides proscribed [sic] in Executive Order 11850
do not cause such effects [that would violate the ENMOD Convention] and are allowed under international law.”).
409

Executive Order 11850, Renunciation of Certain Uses in War of Chemical Herbicides and Riot Control Agents,
40 FEDERAL REGISTER 16187 (Apr. 8, 1975) (“The Secretary of Defense shall take all necessary measures to ensurethat the use by the Armed Forces of the United States of any ... chemical herbicides in war is prohibited unless suchuse has Presidential approval, in advance.”).
410

Written Statement of the Government of the United States of America, 21, Jun. 20, 1995, I.C.J., Request by theUnited Nations General Assembly for an Advisory Opinion on the Legality of the Threat or Use of Nuclear416

nuclear weapons per se, and thus nuclear weapons are lawful weapons for the United States.
The law of war governs the use of nuclear weapons, just as it governs the use of
conventional weapons. 411 For example, nuclear weapons must be directed against military
objectives. 412 In addition, attacks using nuclear weapons must not be conducted when the
expected incidental harm to civilians is excessive compared to the military advantage expected to
be gained. 413
6.18.1 U.S. Policy on the Use of Nuclear Weapons. The United States has developed
national policy on the use of nuclear weapons. For example, the United States has stated that it
would only consider the use of nuclear weapons in extreme circumstances to defend the vitalinterests of the United States or its allies and partners. 414 In addition, the United States has statedthat it will not use or threaten to use nuclear weapons against non-nuclear weapons States thatare party to the Nuclear Non-Proliferation Treaty and in compliance with their nuclear nonproliferation obligations. 415
6.18.2 Nuclear Weapons and Arms Control Obligations. Nuclear weapons are regulated
by a number of arms control agreements restricting their development, testing, production,
proliferation, deployment, use, and, with respect to specific types, possession. Some of these
agreements may not apply in times of war. Guidance on nuclear arms control agreements isbeyond the scope of this manual.
6.18.3 AP I Provisions and Nuclear Weapons. Parties to AP I have expressed the
Weapons (noting that “there is no general prohibition in conventional or customary international law on the use of
nuclear weapons,”).
411

See, e.g., Secretary of Defense, Report on Nuclear Employment Strategy of the United States Specified in Section
491 of 10 U.S.C., 4-5 (Jun. 2013) (“The new guidance makes clear that all plans must also be consistent with thefundamental principles of the Law of Armed Conflict. Accordingly, plans will, for example, apply the principles of
distinction and proportionality and seek to minimize collateral damage to civilian populations and civilian objects.
The United States will not intentionally target civilian populations or civilian objects.”); Written Statement of theGovernment of the United States of America, 21, Jun. 20, 1995, I.C.J., Request by the United Nations General
Assembly for an Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (“The United States
has long taken the position that various principles of the international law of armed conflict would apply to the useof nuclear weapons as well as to other means and methods of warfare. This in no way means, however, that the useof nuclear weapons is precluded by the law of war.”); Edward R. Cummings, The Role of Humanitarian Law, Sept.
25, 1982, III CUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-1988 3421, 3422 (Asfar back as 1965 the U.S. supported a UN Resolution that essentially stated “that all governments and otherauthorities responsible for action in armed conflicts should conform at least to the following principle[] ... that thegeneral principles of the Law of War apply to nuclear and similar weapons.”).
412

Refer to § 5.5 (Discrimination in Conducting Attacks).

413

Refer to § 5.12 (Proportionality – Prohibition on Attacks Expected to Cause Excessive Incidental Harm).

414

Department of Defense, Nuclear Posture Review Report 17 (Apr. 2010) (“The United States would only consider
the use of nuclear weapons in extreme circumstances to defend the vital interests of the United States or its allies
and partners.”).
415
Department of Defense, Nuclear Posture Review Report 17 (Apr. 2010) (“The United States will not use or
threaten to use nuclear weapons against non-nuclear weapons states that are party to the NPT and in compliancewith their nuclear non-proliferation obligations.”).

417

understanding that the rules relating the use of weapons introduced by AP I were intended toapply exclusively to conventional weapons. 416 Thus, Parties to AP I have understood AP I
provisions not to regulate or prohibit the use of nuclear weapons. 417 Although the United States
is not a Party to AP I, the United States participated in the diplomatic conference that negotiatedAP I based upon this understanding. 418
6.18.4 Authority to Launch Nuclear Weapons. The authority to launch nuclear weapons
generally is restricted to the highest levels of government. The domestic law and procedures
concerning nuclear weapons employment are beyond the scope of this manual.
416

Belgium, Statement on Ratification of AP I, May 20, 1986, 1435 UNTS 367 (“The Belgian Government, bearing
in mind the preparatory work on the international instrument which is hereby ratified, wishes to stress that theProtocol was drawn up in order to expand the protection conferred by humanitarian law exclusively whenconventional weapons are used in armed conflicts, without prejudice to the provisions of international law relating to
the use of other types of weapons.”); Germany, Statement on Ratification of AP I, Feb. 14, 1991, 1607 UNTS 526,
529 (“It is the understanding of the Federal Republic of Germany that the rules relating to the use of weapons
introduced by Additional Protocol I were intended to apply exclusively to conventional weapons without prejudice
to any other rules of international law applicable to other types of weapons.”); Italy, Statement on Ratification of AP
I, Feb. 27, 1986, 1425 UNTS 438 (“It is the understanding of the Government of Italy that the rules relating to theuse of weapons introduced by Additional Protocol I were intended to apply exclusively to conventional weapons.
They do not prejudice any other rule of international law applicable to other types of weapons.”); Netherlands,
Statement on Ratification of AP I, Jun. 26, 1987, 1477 UNTS 300 (“With regard to Protocol I as a whole: It is theunderstanding of the Government of the Kingdom of the Netherlands that the rules introduced by Protocol I relating
to the use of weapons were intended to apply and consequently do apply solely to conventional weapons, without
prejudice to any other rules of international law applicable to other types of weapons;”); Spain, Statement on
Ratification of AP I, Apr. 21, 1989, 1537 UNTS 390, 391 (“This Protocol shall be understood to apply in its
particular field, exclusively to conventional weapons and without prejudice to the norms of international law
applicable to weapons of any other type.”).
417

See, e.g., United Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 76 (“It continues tobe the understanding of the United Kingdom that the rules introduced by the Protocol apply exclusively toconventional weapons without prejudice to any other rules of international law applicable to other types of weapons.
In particular, the rules so introduced do not have any effect on and do not regulate or prohibit the use of nuclear
weapons.”); France, Statement on Ratification of AP I, translated in SCHINDLER & TOMAN, THE LAWS OF ARMEDCONLFICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 800 (2004) (“Referring to
the draft protocol drawn up by the International Committee of the Red Cross which constituted the basis of 19741977 Diplomatic Conference, the Government of the French Republic continues to consider that the Protocol’s
provisions concern exclusively conventional weapons and do not regulate or prohibit the use of nuclear weapons,
nor should they constitute a prejudice to any other rules of international law applicable to other activities necessary
for the exercise by France of its inherent right of self-defense.”); Canada, Statement on Ratification of AP I, Nov. 20,
1990, 1591 UNTS 462, 463 (“It is the understanding of the Government of Canada that the rules introduced byProtocol I were intended to apply exclusively to conventional weapons. In particular, the rules so introduced do nothave any effect on and do not regulate or prohibit the use of nuclear weapons.”).
418

APPENDIX TO 1985 CJCS MEMO ON AP I 89 (“The United States participated in the negotiation of the Protocol on
the assumption that its rules on the conduct of combat operations would not apply to the use of nuclear weapons, aposition based on statements in the introduction to the original draft of the Protocol tabled by the Red Cross.”);United States, Statement on Signature of AP I, 1125 UNTS 434 (“1. It is the understanding of the United States ofAmerica that the rules established by this Protocol were not intended to have any effect on and do not regulate or
prohibit the use of nuclear weapons.”). See also International Committee of the Red Cross, Introduction, Draft
Additional Protocols to the Geneva Conventions of August 12, 1949, June 1973, 2, reprinted in I OFFICIAL RECORDS
OF THE CDDH Part Three (“Problems relating to atomic, bacteriological and chemical warfare are subjects ofinternational agreements or negotiations by governments, and in submitting these draft Additional Protocols, theICRC does not intend to broach those problems.”).

418

6.19 EXPLOSIVE ORDNANCE
Information should be kept on the use of explosive ordnance in order to reduce the risk
posed by explosive remnants of war once the conflict has ended. 419 If possible, explosive
ordnance that must be abandoned should be left in a safe and secure manner, and information
should be recorded and retained on its abandonment. 420 In addition, generic preventive measures
should be taken during the life-cycle of explosive ordnance in order to minimize the occurrenceof explosive remnants of war. 421
6.19.1 Definitions of Explosive Ordnance, Unexploded Ordnance, and Abandoned
Ordnance.
6.19.1.1 Definition of Explosive Ordnance. “Explosive ordnance” means
conventional munitions containing explosives, with the exception of mines, booby-traps, andother devices as defined in the CCW Amended Mines Protocol. 422
As a factual matter, mines, booby-traps, and other devices may constitute explosive
ordnance, but the legal definition of explosive ordnance in the CCW Protocol V on Explosive
Remnants of War excludes these items because they are addressed by the CCW Amended Mines
Protocol. 423
The reference to conventional munitions in the definition of “explosive ordnance” meansthat chemical, biological, and nuclear weapons are not covered by the CCW Protocol V on
Explosive Remnants of War. 424
6.19.1.2 Definition of Unexploded Ordnance (UXO). “Unexploded ordnance”
means explosive ordnance that has been primed, fused, armed, or otherwise prepared for use andused in an armed conflict. 425 “Explosive ordnance” is defined in § 6.19.1.1 (Definition of
Explosive Ordnance). UXO may have been fired, dropped, launched, or projected, and shouldhave exploded, but failed to do so. 426 For example, UXO does not include weapons that have
419

Refer to § 6.19.2 (Using Explosive Ordnance).

420

Refer to § 6.19.3 (Abandoning Explosive Ordnance).

421

Refer to § 6.19.5 (Generic Preventive Measures During the Life-Cycle of Explosive Ordnance Aimed at
Minimizing the Occurrence of Explosive Remnants of War).
422

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 2(1) (“Explosive ordnance means conventional
munitions containing explosives, with the exception of mines, booby traps and other devices as defined in Protocol
II of this Convention as amended on 3 May 1996.”).

423

Refer to § 6.12.1 (Definition of Mine); § 6.12.2 (Definition of Booby-Trap); § 6.12.3 (Definition of “Other
Devices” Similar to Mines).
424

WILLIAM H. BOOTHBY, WEAPONS AND THE LAW OF ARMED CONFLICT 303 (2009) (“Specifically, the Protocol
does not apply to chemical, biological, or nuclear weapons.”).
425

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 2(2) (“Unexploded ordnance means explosive
ordnance that has been primed, fused, armed, or otherwise prepared for use and used in an armed conflict.”).

426

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 2(2) (“It may have been fired, dropped, launched or
projected and should have exploded but failed to do so.”).

419

remained in the armory or arsenal and that have not been prepared for firing. 427 UXO aresometimes called “duds.”
6.19.1.3 Definition of Abandoned Explosive Ordnance (AXO). “Abandoned
explosive ordnance” means explosive ordnance that has not been used during an armed conflict,that has been left behind or dumped by a party to an armed conflict, and that is no longer undercontrol of the party that left it behind or dumped it. 428 AXO may or may not have been primed,
fused, armed, or otherwise prepared for use. 429 For example, mortar rounds in a supply pointthat is abandoned as a result of a quick departure would constitute AXO.
6.19.2 Using Explosive Ordnance. To the maximum extent possible and as far aspracticable, information should be recorded and retained on the use of explosive ordnance during
armed conflict in order to reduce the risks posed by explosive remnants of war. 430 The bestpractice is to record and retain, as accurately as possible, the following information regarding
explosive ordnance that may have become unexploded ordnance:•

the location of areas targeted using explosive ordnance;•

the approximate number, type, and nature of explosive ordnance used in these areas; and•the general location of known and probable unexploded ordnance. 431

6.19.3 Abandoning Explosive Ordnance. Where it has been necessary to abandon
explosive ordnance in the course of operations, the best practice, if possible, is to leave it in asafe and secure manner. 432 In addition, to the maximum extent possible and as far as practicable,
427

WILLIAM H. BOOTHBY, WEAPONS AND THE LAW OF ARMED CONFLICT 303 (2009) (“[Unexploded ordnance as
defined the CCW Protocol V on Explosive Remnants of War] also does not include weapons that have remained in
the armoury or arsenal and that have not been prepared for firing. The definition is quite specific. The ordnancemust have been prepared for use and must have been actually used in an armed conflict.”).
428

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 2(3) (“Abandoned explosive ordnance means
explosive ordnance that has not been used during an armed conflict, that has been left behind or dumped by a party
to an armed conflict, and which is no longer under control of the party that left it behind or dumped it.”).
429

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 2(3) (“Abandoned explosive ordnance may or may
not have been primed, fused, armed or otherwise prepared for use.”).

430

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 4(1) (“High Contracting Parties and parties to anarmed conflict shall to the maximum extent possible and as far as practicable record and retain information on theuse of explosive ordnance … to facilitate the rapid marking and clearance, removal or destruction of explosive
remnants of war, risk education and the provision of relevant information to the party in control of the territory andto civilian populations in that territory.”).

431

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 1(a) (“Recording of
information: Regarding explosive ordnance which may have become UXO a State should endeavour to record thefollowing information as accurately as possible: (i) the location of areas targeted using explosive ordnance; (ii) the
approximate number of explosive ordnance used in the areas under (i); (iii) the type and nature of explosive
ordnance used in areas under (i); (iv) the general location of known and probable UXO;”).
432
TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 1(a) (“Where a State has been
obliged to abandon explosive ordnance in the course of operations, it should endeavour to leave AXO in a safe andsecure manner … .”).

420

information should be recorded and retained on the abandonment of explosive ordnance in orderto reduce the risks posed by explosive remnants of war. 433 The best practice is to record asaccurately as possible and retain the following information regarding abandoned explosive
ordnance:•

the location of AXO;•

the approximate amount of AXO at each specific site; and•the types of AXO at each specific site. 434

6.19.4 Storing Records on the Use or Abandonment of Explosive Ordnance. Information
regarding the use or abandonment of explosive ordnance should be stored in such a manner as toallow for its subsequent retrieval in accordance with § 6.20.6 (Making Available Information on
Used or Abandoned Explosive Ordnance That May Have Become Explosive Remnants of War).
6.19.5 Generic Preventive Measures During the Life-Cycle of Explosive Ordnance
Aimed at Minimizing the Occurrence of Explosive Remnants of War. Generic preventive
measures aimed at minimizing the occurrence of explosive remnants of war are described in part
3 of the Technical Annex to the CCW Protocol V on Explosive Remnants of War. 435 Suchmeasures include munitions manufacturing management, munitions management, training,transfer, and future production. When producing or procuring explosive ordnance, to the extent
possible, and as appropriate, these best practice measures should be implemented and respectedduring the life-cycle of explosive ordnance. 436
6.19.5.1 Munitions Manufacturing Management. The following best practices
should be applied during munitions manufacturing management:•

Production processes should be designed to achieve the greatest reliability of munitions.

•

Production processes should be subject to certified quality control measures.

433

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 4(1) (“High Contracting Parties and parties to anarmed conflict shall to the maximum extent possible and as far as practicable record and retain information on theuse of explosive ordnance or abandonment of explosive ordnance, to facilitate the rapid marking and clearance,
removal or destruction of explosive remnants of war, risk education and the provision of relevant information to theparty in control of the territory and to civilian populations in that territory.”).

434

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 1(a) (“Where a State has been
obliged to abandon explosive ordnance in the course of operations, it should endeavour to leave AXO in a safe andsecure manner and record information on this ordnance as follows: (v) the location of AXO; (vi) the approximate
amount of AXO at each specific site; (vii) the types of AXO at each specific site.”).
435

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 9(1) (“Bearing in mind the different situations andcapacities, each High Contracting Party is encouraged to take generic preventive measures aimed at minimizing theoccurrence of explosive remnants of war, including, but not limited to, those referred to in part 3 of the TechnicalAnnex.”).

436
TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3 (“States producing or
procuring explosive ordnance should to the extent possible and as appropriate endeavour to ensure that the following
measures are implemented and respected during the life-cycle of explosive ordnance.”).

421

•

During the production of explosive ordnance, certified quality assurance standards thatare internationally recognized should be applied.

•

Acceptance testing should be conducted through live-fire testing over a range ofconditions or through other validated procedures.

•High reliability standards should be required in the course of explosive ordnancetransactions and transfers. 437

6.19.5.2 Munitions Management. In order to ensure the best possible long-term
reliability of explosive ordnance, best practice norms and operating procedures with respect to its
storage, transport, field storage, and handling should be applied in accordance with the following
guidance. 438•

Explosive ordnance, where necessary, should be stored in secure facilities or appropriate
containers that protect the explosive ordnance and its components in a controlled
atmosphere, if necessary. 439•

Explosive ordnance should be transported to and from production facilities, storage
facilities, and the field in a manner that minimizes the risk of damage to the explosive
ordnance. 440•

Appropriate containers and controlled environments, where necessary, should be used
when stockpiling and transporting explosive ordnance. 441•

The risk of explosions in stockpiles should be minimized by the use of appropriate

437

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(a) (“(i) Production
processes should be designed to achieve the greatest reliability of munitions. (ii) Production processes should be
subject to certified quality control measures. (iii) During the production of explosive ordnance, certified quality
assurance standards that are internationally recognised should be applied. (iv) Acceptance testing should be
conducted through live-fire testing over a range of conditions or through other validated procedures. (v) Highreliability standards should be required in the course of explosive ordnance transactions and transfers.”).

438

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(b) (“In order to ensure thebest possible long-term reliability of explosive ordnance, States are encouraged to apply best practice norms andoperating procedures with respect to its storage, transport, field storage, and handling in accordance with thefollowing guidance.”).
439

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(b)(i) (“Explosive ordnance,
where necessary, should be stored in secure facilities or appropriate containers that protect the explosive ordnanceand its components in a controlled atmosphere, if necessary.”).

440

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(b)(ii) (“A State should
transport explosive ordnance to and from production facilities, storage facilities and the field in a manner thatminimizes damage to the explosive ordnance.”).

441

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(b)(iii) (“Appropriate
containers and controlled environments, where necessary, should be used by a State when stockpiling andtransporting explosive ordnance.”).

422

stockpile arrangements. 442•

Appropriate explosive ordnance logging, tracking, and testing procedures should beapplied. These procedures should include information on: (1) the date of manufacture ofeach number, lot, or batch of explosive ordnance; (2) where the explosive ordnance hasbeen; (3) under what conditions the explosive ordnance has been stored; and (4) to whatenvironmental factors the explosive ordnance has been exposed. 443•

Periodically, stockpiled explosive ordnance should undergo, where appropriate, live-firetesting to ensure that munitions function as desired. 444•

Sub-assemblies of stockpiled explosive ordnance should, where appropriate, undergo
laboratory testing to ensure that munitions function as desired. 445•

Where necessary, appropriate action (including adjustment to the expected shelf-life of
ordnance) should be taken as a result of information acquired by logging, tracking, andtesting procedures, in order to maintain the reliability of stockpiled explosive
ordnance. 446

6.19.5.3 Training. All personnel who are involved in handling, transporting, andusing explosive ordnance should be properly trained through suitable training programs on themunitions that they will be required to handle. 447
6.19.5.4 Transfer. When contemplating transfers of explosive ordnance toanother State that did not previously possess that type of explosive ordnance, reasonable efforts
should be made to ensure that the receiving State has the capability to store, maintain, and use
442

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(b)(iv) (“The risk of
explosions in stockpiles should be minimised by the use of appropriate stockpile arrangements.”).

443

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(b)(v) (“States should apply
appropriate explosive ordnance logging, tracking and testing procedures, which should include information on thedate of manufacture of each number, lot or batch of explosive ordnance, and information on where the explosive
ordnance has been, under what conditions it has been stored, and to what environmental factors it has been
exposed.”).

444

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(b)(vi) (“Periodically,stockpiled explosive ordnance should undergo, where appropriate, live-firing testing to ensure that munitions
function as desired.”).

445

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(b)(vii) (“Sub-assemblies ofstockpiled explosive ordnance should, where appropriate, undergo laboratory testing to ensure that munitions
function as desired.”).
446

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(b)(viii) (“Where necessary,
appropriate action, including adjustment to the expected shelf-life of ordnance, should be taken as a result of
information acquired by logging, tracking and testing procedures, in order to maintain the reliability of stockpiled
explosive ordnance.”).

447

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(c) (“The proper training of
all personnel involved in the handling, transporting and use of explosive ordnance is an important factor in seeking
to ensure its reliable operation as intended. States should therefore adopt and maintain suitable training programmes
to ensure that personnel are properly trained with regard to the munitions with which they will be required to deal.”).

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that explosive ordnance correctly. 448
6.19.5.5 Future Production. When producing, procuring, or developing explosive
ordnance, ways and means of improving the reliability of explosive ordnance should beconsidered with a view to achieving the highest possible reliability. 449
6.20 EXPLOSIVE REMNANTS OF WAR
There are certain obligations with respect to explosive remnants of war on territory under
U.S. control. Most of these obligations are trigged upon the cessation of active hostilities.
6.20.1 Definition of Explosive Remnants of War. Under the CCW Protocol V on
Explosive Remnants of War, “explosive remnants of war” means: (1) unexploded ordnance(UXO); and (2) abandoned explosive ordnance (AXO). 450“Unexploded ordnance” is defined in § 6.19.1.2 (Definition of Unexploded Ordnance(UXO)). “Abandoned explosive ordnance” is defined in § 6.19.1.3 (Definition of Abandoned
Explosive Ordnance (AXO)).
6.20.2 Scope of the Obligations Created by the CCW Protocol V on Explosive Remnantsof War. The CCW Protocol V on Explosive Remnants of War applies to explosive remnants of
war on the land territory, including internal waters, of States that are Parties to the Protocol. 451
The CCW Protocol V on Explosive Remnants of War applies to situations resulting fromarmed conflict and occupation. 452
Certain obligations in the CCW Protocol V on Explosive Remnants of War only apply to
explosive remnants of war that were created after the entry into force of the Protocol for the HighContracting Party on whose territory the explosive remnants of war exist. 453 These obligations
448

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(d) (“A State planning totransfer explosive ordnance to another State that did not previously possess that type of explosive ordnance should
endeavour to ensure that the receiving State has the capability to store, maintain and use that explosive ordnancecorrectly.”).

449

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 3(e) (“A State should examine
ways and means of improving the reliability of explosive ordnance that it intends to produce or procure, with a viewto achieving the highest possible reliability.”).

450

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 2(4) (“Explosive remnants of war means unexploded
ordnance and abandoned explosive ordnance.”).

451

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 1(2) (“This Protocol shall apply to explosive remnantsof war on the land territory including internal waters of High Contracting Parties.”).

452

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 1(3) (“This Protocol shall apply to situations resulting
from conflicts referred to in Article 1, paragraphs 1 to 6, of the Convention, as amended on 21 December 2001.”).

453

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 1(4) (“Articles 3, 4, 5 and 8 of this Protocol apply to
explosive remnants of war other than existing explosive remnants of war as defined in Article 2, paragraph 5 of thisProtocol.”); CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 2(5) (“Existing explosive remnants of warmeans unexploded ordnance and abandoned explosive ordnance that existed prior to the entry into force of thisProtocol for the High Contracting Party on whose territory it exists.”).

424

include obligations discussed in:•§ 6.20.3 (Taking Feasible Precautions to Protect Civilians From Explosive Remnants of
War);

•

§ 6.20.6 (Making Available Information on Used or Abandoned Explosive OrdnanceThat May Have Become Explosive Remnants of War);•§ 6.20.7 (Clearance, Removal, or Destruction of Explosive Remnants of War From
Territory Under a Party’s Control); and•§ 6.20.8 (Providing Assistance to Facilitate the Removal of Explosive Remnants of War
From a Party’s Military Operations in Areas Outside Its Control).

6.20.3 Taking Feasible Precautions to Protect Civilians From Explosive Remnants ofWar. Parties to the CCW Protocol V on Explosive Remnants of War and parties to an armed
conflict shall take all feasible precautions in the territory under their control affected by
explosive remnants of war to protect the civilian population, individual civilians, and civilian
objects from the risks and effects of explosive remnants of war. 454
Feasible precautions are those precautions that are practicable or practically possible,
taking into account all circumstances ruling at the time, including humanitarian and militaryconsiderations. 455
These precautions may include warnings, risk education to the civilian population, andmarking, fencing, and monitoring of territory affected by explosive remnants of war, as set out inPart 2 of the Technical Annex to CCW Protocol V on Explosive Remnants of War. 456
6.20.3.1 Best Practice Elements on Warnings and Risk Education. Warnings are
the punctual provision of cautionary information to the civilian population, intended to minimizerisks caused by explosive remnants of war in affected territories. 457
Risk education to the civilian population should consist of risk education programs tofacilitate information exchange between affected communities, government authorities, and454

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 5(1) (“High Contracting Parties and parties to anarmed conflict shall take all feasible precautions in the territory under their control affected by explosive remnantsof war to protect the civilian population, individual civilians and civilian objects from the risks and effects of
explosive remnants of war.”).

455

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 5(1) (“Feasible precautions are those precautions
which are practicable or practicably possible, taking into account all circumstances ruling at the time, including
humanitarian and military considerations.”). Refer to § 5.2.3.2 (What Precautions Are Feasible).

456

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 5(1) (“These precautions may include warnings, risk
education to the civilian population, marking, fencing and monitoring of territory affected by explosive remnants ofwar, as set out in Part 2 of the Technical Annex.”).

457

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 2(a) (“Warnings are thepunctual provision of cautionary information to the civilian population, intended to minimise risks caused by
explosive remnants of war in affected territories.”).

425

humanitarian organizations so that affected communities are informed about the threat from
explosive remnants of war. Risk education programs are usually long-term activities. 458
All programs of warnings and risk education should, where possible, take into accountprevailing national and international standards, including the International Mine Action
Standards. 459
Warnings and risk education should be provided to the affected civilian population,
which comprises civilians living in or around areas containing explosive remnants of war andcivilians who transit such areas. 460
Warnings should be given as soon as possible, depending on the context and theinformation available. A risk education program should replace a warnings program as soon as
possible. Warnings and risk education always should be provided to the affected communities atthe earliest possible time. 461
Third parties, such as international organizations and non-governmental organizations,should be used when there are insufficient resources and skills to deliver efficient risk
education. 462
If possible, additional resources for warnings and risk education should be provided.
Such items might include: provision of logistical support, production of risk education materials,
financial support, and general cartographic information. 463
6.20.3.2 Best Practices on Marking, Fencing, and Monitoring Areas Containing
Explosive Remnants of War. When possible, at any time during the course of a conflict and at
458

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 2(b) (“Risk education to thecivilian population should consist of risk education programmes to facilitate information exchange between affected
communities, government authorities and humanitarian organisations so that affected communities are informed
about the threat from explosive remnants of war. Risk education programmes are usually a long term activity.”).

459

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 2(c) (“All programmes of
warnings and risk education should, where possible, take into account prevailing national and international
standards, including the International Mine Action Standards.”).

460

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 2(d) (“Warnings and risk
education should be provided to the affected civilian population which comprises civilians living in or around areas
containing explosive remnants of war and civilians who transit such areas.”).

461

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 2(e) (“Warnings should begiven, as soon as possible, depending on the context and the information available. A risk education programmeshould replace a warnings programme as soon as possible. Warnings and risk education always should be provided
to the affected communities at the earliest possible time.”).

462

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 2(f) (“Parties to a conflictshould employ third parties such as international organisations and non-governmental organisations when they do
not have the resources and skills to deliver efficient risk education.”).
463

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 2(g) (“Parties to a conflictshould, if possible, provide additional resources for warnings and risk education. Such items might include:
provision of logistical support, production of risk education materials, financial support and general cartographic
information.”).

426

the earliest possible time and to the maximum extent possible, the best practice is for areas
containing explosive remnants of war to be marked, fenced, and monitored so as to ensure theeffective exclusion of civilians, in accordance with the following provisions. 464
Warning signs based on methods of marking recognized by the affected community
should be used in the marking of suspected hazardous areas. Signs and other hazardous areaboundary markers should as far as possible be visible, legible, durable, and resistant toenvironmental effects and should clearly identify which side of the marked boundary is
considered safe and which side is considered to be within the area affected by explosive
remnants of war. 465
An appropriate structure should be put in place with responsibility for the monitoring andmaintenance of permanent and temporary marking systems, integrated with national and local
risk education programs. 466
6.20.4 Protecting, as Far as Feasible, Humanitarian Missions and Organizations From the
Effects of Explosive Remnants of War. Each Party to the CCW Protocol V on Explosive
Remnants of War and party to an armed conflict shall protect, as far as feasible, from the effects
of explosive remnants of war, humanitarian missions and organizations that are or will be
operating in the area under the control of the Party to the CCW Protocol V on Explosive
Remnants of War or party to an armed conflict and with that party’s consent. 467
In addition, each Party to the CCW Protocol V on Explosive Remnants of War and party
to an armed conflict shall, upon request by such a humanitarian mission or organization, provide,
as far as feasible, information on the location of all explosive remnants of war that it is aware of
in territory where the requesting humanitarian mission or organization will operate or isoperating. 468 Other treaties or certain U.N. Security Council resolutions may provide a higher
464

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 2(h) (“When possible, at any
time during the course of a conflict and thereafter, where explosive remnants of war exist the parties to a conflictshould, at the earliest possible time and to the maximum extent possible, ensure that areas containing explosive
remnants of war are marked, fenced and monitored so as to ensure the effective exclusion of civilians, in accordancewith the following provisions.”).

465

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 2(i) (“Warning signs based on
methods of marking recognised by the affected community should be utilised in the marking of suspected hazardous
areas. Signs and other hazardous area boundary markers should as far as possible be visible, legible, durable andresistant to environmental effects and should clearly identify which side of the marked boundary is considered to bewithin the explosive remnants of war affected area and which side is considered to be safe.”).

466

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 2(j) (“An appropriate structure
should be put in place with responsibility for the monitoring and maintenance of permanent and temporary marking
systems, integrated with national and local risk education programmes.”).

467

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 6(1) (“Each High Contracting Party and party to anarmed conflict shall: (a) Protect, as far as feasible, from the effects of explosive remnants of war, humanitarian
missions and organizations that are or will be operating in the area under the control of the High Contracting Partyor party to an armed conflict and with that party’s consent.”).

468

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 6(1) (“Each High Contracting Party and party to anarmed conflict shall: … (b) Upon request by such a humanitarian mission or organization, provide, as far as
feasible, information on the location of all explosive remnants of war that it is aware of in territory where therequesting humanitarian mission or organization will operate or is operating.”).

427

level of additional protection. 469
6.20.5 Obligations Under the CCW Protocol V on Explosive Remnants of War That Are
Triggered by the Cessation of Active Hostilities. Certain obligations under the CCW Protocol V
on Explosive Remnants of War are triggered by the cessation of active hostilities. Theseobligations include those obligations addressed in:•§ 6.20.6 (Making Available Information on Used or Abandoned Explosive OrdnanceThat May Have Become Explosive Remnants of War);•§ 6.20.7 (Clearance, Removal, or Destruction of Explosive Remnants of War From
Territory Under a Party’s Control); and•§ 6.20.8 (Providing Assistance to Facilitate the Removal of Explosive Remnants of War
From a Party’s Military Operations in Areas Outside Its Control).

The determination that active hostilities have ceased for the purposes of triggering theseobligations would be made at the national level.
In addition, peace treaties or similar agreements negotiated in connection with thesettlement of armed conflicts may also allocate responsibilities with respect to explosive
remnants of war. 470 Nothing in the CCW Protocol V on Explosive Remnants of War precludes
future arrangements in connection with the settlement of armed conflicts, or assistance connected
thereto, to allocate responsibilities with respect to explosive remnants of war in a manner that
respects the essential spirit and purpose of the CCW Protocol V on Explosive Remnants ofWar. 471

469

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 6(2) (“The provisions of this Article are without
prejudice to existing International Humanitarian Law or other international instruments as applicable or decisions by
the Security Council of the United Nations which provide for a higher level of protection.”).

470

For example, Protocol to the Agreement on Ending the War and Restoring Peace in Viet-Nam Concerning theCease-fire in South Viet-Nam and the Joint Military Commissions, art. 5(a), Jan. 27, 1972, 935 UNTS 251, 253(“Within fifteen days after the cease-fire comes into effect, each party shall do its utmost to complete the removal or
deactivation of all demolition objects, mine-fields, traps, obstacles or other dangerous objects placed previously, so
as not to hamper the population’s movement and work, in the first place on waterways, roads and railroads in South
Viet-Nam. Those mines which cannot be removed or deactivated within that time shall be clearly marked and must
be removed or deactivated as soon as possible.”); Protocol to the Agreement on Ending the War and Restoring Peacein Viet-Nam Concerning the Removal, Permanent Deactivation, or Destruction of Mines in the Territorial Waters,
Ports, Harbors, and Waterways of the Democratic Republic of Viet-Nam, art. 5, Jan. 27, 1973, 935 UNTS 393, 395(“The United States shall be responsible for the mine clearance on inland waterways of the Democratic Republic ofViet-Nam. The Democratic Republic of Viet-Nam shall, to the full extent of its capabilities, actively participate in
the mine clearance with the means of surveying, removal and destruction and technical advice supplied by theUnited States.”).
471

United States, Statement on Consent to Be Bound by CCW Protocol V on Explosive Remnants of War, Jan. 21,
2009, 2562 UNTS 39, 40 (“It is the understanding of the United States of America that nothing in Protocol V would
preclude future arrangements in connection with the settlement of armed conflicts, or assistance connected thereto,
to allocate responsibilities under Article 3 in a manner that respects the essential spirit and purpose of Protocol V”).
See also Overview and Article-by-Article Analysis of CCW Protocol V on Explosive Remnants of War 3-4, MESSAGE
FROM THE PRESIDENT TRANSMITTING AP III, CCW AMENDED ARTICLE 1, AND CCW PROTOCOL V ON EXPLOSIVE

428

6.20.6 Making Available Information on Used or Abandoned Explosive Ordnance That
May Have Become Explosive Remnants of War. Without delay after the cessation of active
hostilities and as far as practicable, Parties to the CCW Protocol V on Explosive Remnants of
War and parties to an armed conflict have an obligation, subject to their legitimate security
interests, to make available certain information on used or abandoned explosive ordnance, which
may have become explosive remnants of war, to certain recipients. 472
6.20.6.1 Timing of the Release of Information. The best practice is for the
information to be released as soon as possible, taking into account such matters as any ongoingmilitary and humanitarian operations in the affected areas, the availability and reliability of
information, and relevant security issues. 473
6.20.6.2 Recipients of the Released Information. The information shall be madeavailable to the party or parties in control of the affected territory and, upon request, to otherrelevant organizations that the party providing the information believes are, or will be,undertaking risk education and the marking and clearance, removal, or destruction of explosive
remnants of war in the affected area. 474
The best practice is to release this information to the party or parties in control of theaffected territory and to those persons or institutions that the releasing State is satisfied are, orwill be, involved in UXO or AXO clearance in the affected area, or in the education of thecivilian population on the risks of UXO or AXO. 475

REMNANTS OF WAR 13-14 (“During the negotiations, the United States and other delegations raised the need toreconcile this Protocol with other international agreements or arrangements related to the settlement of armed
conflict, in order to avoid unintended consequences in connection with peace treaties or similar arrangements. In thecontext of armed conflict, the parties to the conflict themselves will be in the best position to determine how the
responsibilities for ERW should fit into an overall settlement.”).
472

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 4(2) (“High Contracting Parties and parties to anarmed conflict which have used or abandoned explosive ordnance which may have become explosive remnants of
war shall, without delay after the cessation of active hostilities and as far as practicable, subject to these parties’
legitimate security interests, make available such information to the party or parties in control of the affected area,bilaterally or through a mutually agreed third party including inter alia the United Nations or, upon request, to otherrelevant organizations which the party providing the information is satisfied are or will be undertaking risk
education and the marking and clearance, removal or destruction of explosive remnants of war in the affected
area.”).

473

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 1(c)(iv) (“Timing: The
information should be released as soon as possible, taking into account such matters as any ongoing military andhumanitarian operations in the affected areas, the availability and reliability of information and relevant security
issues.”).

474

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 4(2) (information shall be made available “to theparty or parties in control of the affected area, … or, upon request, to other relevant organizations which the party
providing the information is satisfied are or will be undertaking risk education and the marking and clearance,
removal or destruction of explosive remnants of war in the affected area.”).

475

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 1(c)(ii) (“Recipient: The
information should be released to the party or parties in control of the affected territory and to those persons or
institutions that the releasing State is satisfied are, or will be, involved in UXO or AXO clearance in the affected
area, in the education of the civilian population on the risks of UXO or AXO.”).

429

6.20.6.3 Mechanism for the Release of Information. This information may bemade available bilaterally (e.g., directly from the United States to the recipient) or through amutually agreed third party (e.g., the United Nations). 476 In addition, a best practice would be to
make use of those mechanisms established internationally or locally for the release of suchinformation, such as through the United Nations Mine Action Service (UNMAS), theInformation Management System for Mine Action (IMSMA), and other expert agencies, asconsidered appropriate by the releasing State. 477
6.20.6.4 Best Practices for the Content of Released Information on UXO. The
best practice is for the released information on UXO to contain details on:•

the general location of known and probable UXO;•

the types and approximate number of explosive ordnance used in the targeted areas;•

the method of identifying the explosive ordnance including color, size, and shape, andother relevant markings; and•the method for safe disposal of the explosive ordnance. 478

This information may be drawn from the information recorded and retained when using
explosive ordnance. 479
6.20.6.5 Best Practices for the Content of Released Information on AXO. The
best practice is for the released information on AXO to contain details on:•

the location of the AXO;•

the approximate number of AXO at each specific site;•

the types of AXO at each specific site;•the method of identifying the AXO, including color, size, and shape;

476

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 4(2) (information shall be made available “bilaterallyor through a mutually agreed third party including inter alia the United Nations”).

477

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 1(c)(iii) (“Mechanism: A
State should, where feasible, make use of those mechanisms established internationally or locally for the release of
information, such as through UNMAS, IMSMA, and other expert agencies, as considered appropriate by thereleasing State.”).

478

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 1(c)(i) (“On UXO the released
information should contain details on: (1) the general location of known and probable UXO; (2) the types andapproximate number of explosive ordnance used in the targeted areas; (3) the method of identifying the explosive
ordnance including colour, size and shape and other relevant markings; (4) the method for safe disposal of the
explosive ordnance.”).

479

Refer to § 6.19.2 (Using Explosive Ordnance); § 6.19.4 (Storing Records on the Use or Abandonment of
Explosive Ordnance).

430

•

information on type and methods of packing for AXO;•

the state of readiness; and•the location and nature of any booby traps known to be present in the area of AXO. 480

This information may be drawn from the information recorded and retained whenabandoning explosive ordnance. 481
6.20.7 Clearance, Removal, or Destruction of Explosive Remnants of War From
Territory Under a Party’s Control. After the cessation of active hostilities and as soon as
feasible, each Party to the CCW Protocol V on Explosive Remnants of War and party to anarmed conflict shall mark and clear, remove, or destroy explosive remnants of war in affected
territories under its control. 482 This obligation is consistent with long-established customaryinternational law principles of sovereignty and responsibility. 483 In particular, the following
measures are to be taken in such territories:•

surveying and assessing the threat posed by explosive remnants of war;•

assessing and prioritizing the needs and practicability in terms of marking and clearance,
removal, or destruction;•

marking and clearing, removing, or destroying explosive remnants of war; and•taking steps to mobilize resources to carry out these activities. 484

480

TECHNICAL ANNEX TO CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR part 1(c)(i) (“On AXO the released
information should contain details on: (5) the location of the AXO; (6) the approximate number of AXO at eachspecific site; (7) the types of AXO at each specific site; (8) the method of identifying the AXO, including colour,
size and shape; (9) information on type and methods of packing for AXO; (10) state of readiness; (11) the locationand nature of any booby traps known to be present in the area of AXO.”).

481

Refer to § 6.19.3 (Abandoning Explosive Ordnance); § 6.19.4 (Storing Records on the Use or Abandonment of
Explosive Ordnance).
482

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 3(2) (“After the cessation of active hostilities and assoon as feasible, each High Contracting Party and party to an armed conflict shall mark and clear, remove or destroy
explosive remnants of war in affected territories under its control.”).

483

Overview and Article-by-Article Analysis of CCW Protocol V on Explosive Remnants of War 3, MESSAGE FROM
THE PRESIDENT TRANSMITTING AP III, CCW AMENDED ARTICLE 1, AND CCW PROTOCOL V ON EXPLOSIVEREMNANTS OF WAR 13 (“During the negotiations [about CCW Protocol V on Explosive Remnants of War], somedelegations proposed that the responsibility to clear unexploded munitions should be shifted to the party that used
the munitions. Such a provision would have been contrary to the long-established customary principle of the rights
and responsibilities of a sovereign state over its territory; responsibility should be assigned to the entity in the best
position to exercise it.”).
484

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 3(3) (“After the cessation of active hostilities and assoon as feasible, each High Contracting Party and party to an armed conflict shall take the following measures inaffected territories under its control, to reduce the risks posed by explosive remnants of war: (a) survey and assess
the threat posed by explosive remnants of war; (b) assess and prioritize needs and practicability in terms of marking431

In conducting these activities, international standards, including the International Mine
Action Standards, should be taken into account. 485 Areas affected by explosive remnants of war
that are assessed to pose a serious humanitarian risk are to be accorded priority status forclearance, removal, or destruction. 486
Territories under its control include territory over which the State is an Occupying Power.
An Occupying Power assumes responsibility for the safety of the civilian population, including
responsibilities associated with explosive remnants of war. 487
6.20.8 Providing Assistance to Facilitate the Removal of Explosive Remnants of War
From a Party’s Military Operations in Areas Outside Its Control. In cases where a user of
explosive ordnance that has become explosive remnants of war does not exercise control of theterritory, the user shall, after the cessation of active hostilities, provide where feasible, inter alia,
technical, financial, material or human resources assistance, bilaterally or through a mutuallyagreed third party, including, inter alia, through the United Nations system or other relevantorganizations, to facilitate the marking and clearance, removal, or destruction of such explosive
remnants of war. 488

and clearance, removal or destruction; (c) mark and clear, remove or destroy explosive remnants of war; (d) takesteps to mobilize resources to carry out these activities.”).
485

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 3(4) (“In conducting the above activities HighContracting Parties and parties to an armed conflict shall take into account international standards, including theInternational Mine Action Standards.”).

486

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 3(2) (“Areas affected by explosive remnants of war
which are assessed pursuant to paragraph 3 of this Article as posing a serious humanitarian risk shall be accorded
priority status for clearance, removal or destruction.”).

487

Refer to § 11.5 (Duty of the Occupying Power to Ensure Public Order and Safety).

488

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 3(1) (“Each High Contracting Party and party to anarmed conflict shall bear the responsibilities set out in this Article with respect to all explosive remnants of war in
territory under its control. In cases where a user of explosive ordnance which has become explosive remnants ofwar, does not exercise control of the territory, the user shall, after the cessation of active hostilities, provide where
feasible, inter alia technical, financial, material or human resources assistance, bilaterally or through a mutuallyagreed third party, including inter alia through the United Nations system or other relevant organizations, tofacilitate the marking and clearance, removal or destruction of such explosive remnants of war.”).

432

VII –Wounded, Sick, Shipwrecked, Dead, and the Medical Services
Chapter Contents
7.1 Introduction
7.2 Application of the Protections of the GWS and GWS-Sea
7.3 Respect and Protection of the Wounded, Sick, and Shipwrecked
7.4 Search, Collection, and Affirmative Protection of the Wounded, Sick,
Shipwrecked, and Dead
7.5 Humane Treatment and Care of Enemy Military Wounded, Sick, andShipwrecked in the Power of a Party to the Conflict
7.6 Accountability Information From the Enemy Military Wounded, Sick,
Shipwrecked, and Dead
7.7 Treatment and Handling of Enemy Military Dead
7.8 Respect and Protection of Categories of Medical and Religious Personnel
7.9 Captured Medical and Religious Personnel
7.10 Military Medical Units and Facilities
7.11 Ground Transports of the Wounded and Sick, or of Medical Equipment
7.12 Hospital Ships, Sick-Bays in Warships, and Coastal Rescue Craft
7.13 Chartered Medical Transport Ships
7.14 Military Medical Aircraft
7.15 Display of the Distinctive Emblem to Facilitate Identification
7.16 Protection of Civilians Who Are Wounded, Sick, Infirm, or Expectant
Mothers
7.17 Civilian Hospitals and Their Personnel
7.18 Land and Sea Civilian Hospital Convoys
7.19 Civilian Medical Aircraft
7.20 AP I Provisions on the Wounded, Sick, and Shipwrecked
7.1 INTRODUCTION
This Chapter addresses the protection of the wounded, sick, shipwrecked, and dead, bothon the battlefield and after having fallen into the hands of the enemy during international armed
conflict. It also addresses the rights, duties, and liabilities of military medical and religious
personnel, and the protection of military medical units, facilities, and transports. Lastly, it
addresses the protection of civilians who are wounded, sick, infirm, or maternity cases, andcivilian hospitals.
Hospital and safety zones are addressed in Chapter V. 1 Rights and obligations of neutral
States with respect to the wounded, sick, and shipwrecked are addressed in Chapter XV. 2 Rules
for the protection of medical personel and the wounded, sick, and shipwrecked during non1

Refer to § 5.14.3 (Establishing Areas Where Civilians or the Wounded and Sick Are Protected).

2

Refer to § 15.3.2.4 (Authorized Humanitarian Assistance Is Not a Violation of Neutrality); § 15.5.2.1 (Exception
for Authorized Medical Personnel); § 15.16.2 (Neutral Reception of the Wounded, Sick, and Shipwrecked); § 15.18(Authorized Passage of Wounded and Sick Combatants Through Neutral Territory).

433

international armed conflict are addressed in Chapter XVII. 3
7.1.1 Interpretation and Application of Provisions Relating to Medical Issues in the
GWS, GWS-Sea, GPW, and GC. The GWS and GWS-Sea underlie most of the internationallaw rules applicable to the United States for: (1) the protection of the wounded, sick,shipwrecked, and dead; (2) the rights, duties, and liabilities of military medical and religious
personnel; and (3) the protection of military medical units, facilities, and transports.
In addition to the rules of the GWS and GWS-Sea, the GPW also has rules on the medical
treatment of POWs that may apply to persons who are wounded and sick. 4 The GWS and GWSSea, however, have rules for the protection of the wounded, sick, shipwrecked, and dead who are
not POWs (e.g., they are on the battlefield and not in the power of the adverse party, they diedwithout being captured).
The GC has provisions relating to the protection of civilians who are wounded, sick,infirm, or maternity cases, and civilian hospitals. 5 The GC also has rules addressing medicalcare for civilians in occupied territory. 6
7.1.1.1 Interpretation of the GWS and GWS-Sea. As with the GPW and GC, theprovisions of the GWS and GWS-Sea should be interpreted in light of the principles that underlie
the treatment of the wounded, sick, shipwrecked, dead, and the medical services, and, inparticular, in light of the goal of promoting the care of the wounded and sick. 7 The subsequent
practice of States in applying the GWS and GWS-Sea could also assist in interpreting theirprovisions because States’ decades of experience in applying the GWS and GWS-Sea may bevery helpful in understanding their requirements. 8
7.1.1.2 Special Agreements Under the GWS and GWS-Sea. Under the GWS and
GWS-Sea, States may conclude a variety of special agreements during international armed
conflict to facilitate the protection of the wounded, sick, shipwrecked, and others protected by
the GWS and GWS-Sea. The GWS and GWS-Sea specifically provide for agreements:•

to entrust to an effective and impartial organization the duties of the Protecting Powers; 9•

to establish an armistice or suspension of fire, or local arrangement to permit the removal,

3

Refer to § 17.14 (Protection of the Wounded, Sick, Shipwrecked, and Dead in NIAC); § 17.15 (Protection of
Medical and Religious Personnel and Medical Transports in NIAC).

4

Refer to § 9.14 (Medical Attention for Interned POWs).

5

Refer to § 7.16 (Protection of Civilians Who Are Wounded, Sick, Infirm, or Expectant Mothers); § 7.17 (Civilian
Hospitals and Their Personnel).
6

Refer to § 11.15 (Public Health and Hygiene).

7

Refer to § 9.1.2 (Interpretation and Application of the GPW); § 10.1.1 (Interpretation and Application of the GC).

8

Refer to § 1.7.4 (Use of Certain Subsequent Practice in Treaty Interpretation).

9

Refer to § 18.15.2.1 (Agreement for an Impartial and Effective Organization to Perform Protecting Power Duties
Under the 1949 Geneva Conventions).

434

exchange, and transport of the wounded, sick, and shipwrecked; 10•

to establish and recognize hospital zones and localities; 11•

to establish the corresponding ranks for the medical personnel, including the staff of any
authorized voluntary aid societies, in order to help determine the senior retained medical
officer in POW camps; 12•

to put neutral observers on board ships to verify the strict observation of provisions of the
GWS-Sea or verify the equipment carried on board is exclusively for the treatment of thewounded and sick, or for the prevention of disease; 13•

to determine the percentage of personnel to be retained, in proportion to the number ofPOWs, and the distribution of the retained personnel in POW camps; 14•

to establish flights or additional markings for medical aircraft; 15•

to approve chartered medical transport ships; 16•

between the belligerent parties and a neutral Power on the wounded, sick, andshipwrecked who are disembarked onto the neutral Power’s territory; 17•

to use the most modern methods available to facilitate the identification of hospital
ships; 18 and•on the procedure, or to select an umpire who will decide the procedure, to be followed for
an inquiry concerning any alleged violation of the GWS or GWS-Sea. 19

In addition to these agreements expressly provided for in the GWS and GWS-Sea, Parties
to the GWS or GWS-Sea may conclude other special agreements for all matters concerning

10

Refer to § 7.4.3.1 (Armistices and Local Arrangements to Permit the Removal, Exchange, or Transport of the
Wounded).
11

Refer to § 5.14.3 (Establishing Areas Where Civilians or the Wounded and Sick Are Protected).

12

Refer to § 7.9.5.7 (Senior Medical Officer in the Camp).

13

Refer to § 7.13.1 (Agreement to Place Neutral Observers on Chartered Medical Transports); § 7.12.2.6 (Control
and Search of Hospital Ships and Coastal Rescue Craft).
14

Refer to § 7.9.4.3 (Special Agreements on the Percentage of Personnel to Be Retained).

15

Refer to § 7.14 (Military Medical Aircraft).

16

Refer to § 7.13 (Chartered Medical Transport Ships).

17

Refer to § 7.14.6.2 (Detention of the Wounded, Sick, or Shipwrecked).

18

Refer to § 7.12.3.5 (Agreements to Facilitate the Identification of Hospital Ships).

19

Refer to § 18.14.1 (Inquiry Procedure in the 1949 Geneva Conventions).

435which they may deem it suitable to make separate provision. 20
No special agreement shall adversely affect the situation of wounded, sick, andshipwrecked persons, of members of the medical personnel, or of chaplains, as defined by the
GWS or the GWS-Sea, nor restrict the rights that the GWS or GWS-Sea confer upon them. 21
Wounded, sick, and shipwrecked persons, as well as medical personnel and chaplains,shall continue to have the benefit of such agreements as long as the GWS or GWS-Sea isapplicable to them, except where express provisions to the contrary are contained in these or insubsequent agreements, or where more favorable measures have been taken with regard to themby one or other of the parties to the conflict. 22
7.2 APPLICATION OF THE PROTECTIONS OF THE GWS AND GWS-SEA
7.2.1 Circumstances and Duration of Application of the GWS and GWS-Sea. In general,
the GWS-Sea addresses the protection of persons at sea, while the GWS applies to persons on
land. In case of hostilities between land and naval forces of parties to the conflict, the provisionsof the GWS-Sea shall apply only to forces on board ship. 23
For the wounded and sick, the GWS and GWS-Sea provide corresponding protections
until these persons no longer suffer from that condition. For example, the GWS would no longer
cover a detained member of the armed forces who recovers from his or her wounds, although the
GPW would continue to apply to that person because he or she is a POW. 24
20

GWS art. 6 (“In addition to the agreements expressly provided for in Articles 10, 15, 23, 28, 31, 36, 37 and 52, theHigh Contracting Parties may conclude other special agreements for all matters concerning which they may deem itsuitable to make separate provision.”); GWS-SEA art. 6 (“In addition to the agreements expressly provided for in
Articles 10, 18, 31, 38, 39, 40, 43 and 53, the High Contracting Parties may conclude other special agreements for
all matters concerning which they may deem it suitable to make separate provision.”).
21

GWS art. 6 (“No special agreement shall adversely affect the situation of the wounded and sick, of members ofthe medical personnel or of chaplains, as defined by the present Convention, nor restrict the rights which it confers
upon them.”); GWS-SEA art. 6 (“No special agreement shall adversely affect the situation of wounded, sick andshipwrecked persons, of members of the medical personnel or of chaplains, as defined by the present Convention,
nor restrict the rights which it confers upon them.”).
22

GWS art. 6 (“Wounded and sick, as well as medical personnel and chaplains, shall continue to have the benefit ofsuch agreements as long as the Convention is applicable to them, except where express provisions to the contrary arecontained in the aforesaid or in subsequent agreements, or where more favourable measures have been taken withregard to them by one or other of the Parties to the conflict.”); GWS-SEA art. 6 (“Wounded, sick and shipwreckedpersons, as well as medical personnel and chaplains, shall continue to have the benefit of such agreements as long as
the Convention is applicable to them, except where express provisions to the contrary are contained in the aforesaid
or in subsequent agreements, or where more favourable measures have been taken with regard to them by one orother of the Parties to the conflict.”).
23

GWS-SEA art. 4 (“In case of hostilities between land and naval forces of Parties to the conflict, the provisions of
the present Convention shall apply only to forces on board ship.”).

24

GWS COMMENTARY 65 (“It is clear, however, that the Convention will cease to apply to the wounded and sickfrom the moment they are cured. This does not result from the actual Article under review, but from the general
structure of the Convention. While in enemy hands, the wounded and sick—who are also prisoners of war—enjoy
protection under both the First and Third Conventions. Once they have regained their health, only the Third
Convention, relative to the treatment of prisoners of war, applies.”).

436For protected persons who have fallen into the hands of the enemy, the GWS shall apply
until their final repatriation. 25 The GWS-Sea does not specify when it ceases to apply, but once
persons who are covered by its provisions reach land, the GWS applies. Forces put ashore shallimmediately become subject to the provisions of the GWS. 26 If dead persons are landed, theprovisions of the GWS shall be applicable. 27 Retained personnel at sea shall be subject, on
landing, to the provisions of the GWS. 28
7.2.2 Non-Renunciation of Rights Secured by the GWS or GWS-Sea. Wounded, sick,and shipwrecked persons, as well as military medical and religious personnel, may in nocircumstances renounce in part or in entirety the rights secured to them by the GWS or the GWSSea, or by special agreements, if any, referred to in Article 6 of the GWS or the GWS-Sea. 29 A
similar provision of the GPW applies to POWs, and a similar provision of the GC applies toprotected persons. 30
This rule is intended to prevent States from evading their obligations by coercing enemy
nationals in their power to waive their rights. 31 The prohibition on the non-renunciation of rights
is based on a recognition that: (1) persons in the hands of the enemy are in a vulnerable position;(2) it would be difficult to establish whether they had voluntarily renounced their rights; and (3)an absolute prohibition would best serve the interests of the majority. 32

25

GWS art. 5 (“For the protected persons who have fallen into the hands of the enemy, the present Convention shallapply until their final repatriation.”). Compare § 9.3.6 (Commencement and Duration of POW Status andTreatment).
26

GWS-SEA art. 4 (“Forces put ashore shall immediately become subject to the provisions of the Geneva
Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August
12, 1949.”).

27

GWS-SEA art. 20 (“If dead persons are landed, the provisions of the Geneva Convention for the Amelioration of
the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, shall be applicable.”).

28

GWS-SEA art. 37 (“Retained personnel shall be subject, on landing, to the provisions of the Geneva Convention
for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949.”).

29

GWS art. 7 (“Wounded and sick, as well as members of the medical personnel and chaplains, may in nocircumstances renounce in part or in entirety the rights secured to them by the present Convention, and by the
special agreements referred to in the foregoing Article, if such there be.”); GWS-SEA art. 7 (“Wounded, sick andshipwrecked persons, as well as members of the medical personnel and chaplains, may in no circumstances
renounce in part or in entirety the rights secured to them by the present Convention, and by the special agreements
referred to in the foregoing Article, if such there be.”).
30

Refer to § 9.3.7 (Non-Renunciation of Rights Secured by the GPW); § 10.3.6 (Non-Renunciation of Rights
Secured by the GC).
31

GWS COMMENTARY 78-79 (“When a State offers to persons detained by it the choice of another status, such a
step is usually dictated by its own interest. Experience has proved that such persons may be subjected to pressure inorder to influence their choice. The pressure may vary in its intensity and be either more or less apparent; but it
nevertheless constitutes a violation of their moral and sometimes even of their physical integrity. The inevitable
result of such practices is to expose the protected persons to a two-fold series of what may on occasion be very
serious drawbacks, first from the fact that they are under pressure, and secondly, as already indicated, from their
partial or total renunciation of the protection accorded to them by the Convention.”).
32

See GWS COMMENTARY 79-80 (“But in the end the Diplomatic Conference unanimously adopted the present
wording—mainly for the reasons given above, that is to say, the danger of allowing the persons concerned the437This rule does not prohibit States from reassigning their own military medical andreligious personnel to non-medical duties or from transferring their own personnel outside of the
medical service. Similarly, this rule constitutes an obligation on States and does not directlybind individuals. 33
7.2.3 Reprisals Prohibited. Reprisals against the wounded, sick, or shipwrecked persons,
personnel, buildings, vessels, or equipment protected by the GWS or GWS-Sea are prohibited. 34
7.3 RESPECT AND PROTECTION OF THE WOUNDED, SICK, AND SHIPWRECKED
Members of the armed forces and other persons mentioned in Article 13 of the GWS andthe GWS-Sea, who are wounded, sick, or shipwrecked, shall be respected and protected in all
circumstances. 35 Such persons are among the categories of persons placed hors de combat;
making them the object of attack is strictly prohibited. 36
7.3.1 Definitions of Wounded, Sick, and Shipwrecked.
7.3.1.1 Wounded or Sick. The meanings of “wounded” and “sick” are a matter ofcommon sense and good faith. 37 They include:

choice of renouncing their rights, and the difficulty, and even impossibility, of proving the existence of duress orpressure. Among the reasons given in favour of the present Article 7, two points call for notice. The Conference
did not overlook the fact that the absolute character of the rule drafted might entail for some persons what one
delegate termed ‘unfortunate’ results. It adopted the rule, because it seemed to safeguard the interests of the
majority. If provision were made for exceptions in the case of certain individuals, would that not at once open abreach which others, in much greater numbers, would, perhaps, have cause to regret?”).
33

GWS COMMENTARY 85 (“One last question remains to be considered. Rights entail obligations. With the focus
on the individual under Article 7, can the rules of the Conventions, or certain of them, be considered as obligations
which are directly incumbent on the persons protected? There can be no doubt that certain stipulations, such as therespect due to the wounded and sick, are also incumbent on persons who can claim protection under the Convention.
For example, a member of the medical personnel who, profiting by his duties, plundered the wounded or dead on thebattlefield, would be liable to the punishment which the law of his country or of the enemy stipulates in of theobligation by which every contracting State is bound to repress such breaches. This question arises in connection
with Article 7, which appears to take the form of an obligation on the persons protected, stating, as it does, that thelatter ‘may in no circumstances renounce …’. It was for this reason that, in their ‘Remarks and Proposals’ submitted
to the Diplomatic Conference, the International Committee of the Red Cross pointed out that the general effect of
the Conventions was to impose obligations on the States parties to the Conventions rather than on individuals, andproposed to draft Article 7 in that sense.”).

34

Refer to § 18.18.3.2 (Reprisals Prohibited by the 1949 Geneva Conventions).

35

GWS art. 12 (“Members of the armed forces and other persons mentioned in the following Article, who arewounded or sick, shall be respected and protected in all circumstances.”); GWS-SEA art. 12 (“Members of the armed
forces and other persons mentioned in the following Article, who are at sea and who are wounded, sick or
shipwrecked, shall be respected and protected in all circumstances, it being understood that the term ‘shipwreck’means shipwreck from any cause and includes forced landings at sea by or from aircraft.”).
36

Refer to § 5.9 (Persons Placed Hors de Combat).

37

See also GWS COMMENTARY 136 (“No attempt has ever been made in the Geneva Convention to define what ismeant by a ‘wounded or sick’ combatant; nor has there ever been any definition of the degree of severity of a wound
or a sickness entitling the wounded or sick combatant to respect. That is as well; for any definition would
necessarily be restrictive in character, and would thereby open the door to every kind of misinterpretation and abuse.

438

•

combatants who have been rendered unconscious or otherwise have been incapacitatedbecause of their wounds or sickness; 38 and•combatants who have surrendered as a consequence of their health. 39

To merit respect and protection as “wounded” or “sick” under the law of war, combatants
must abstain from hostile acts or attempts to evade capture. 40
7.3.1.2 Shipwrecked. For the purpose of applying the protections afforded by the
GWS-Sea, the term “shipwreck” means shipwreck from any cause and includes forced landings
at sea by or from aircraft. 41
The shipwrecked may be understood to include those in distress at sea or stranded on the
coast who are also helpless. 42 To be considered “shipwrecked,” persons must be in need ofassistance and care, and they must refrain from any hostile act. 43 For example, shipwreckedpersons do not include combatant personnel engaged in amphibious, underwater, or airborne
attacks who are proceeding ashore. 44
7.3.2 Persons Entitled to Protection as Wounded, Sick, or Shipwrecked Under the GWS
and GWS-Sea. The GWS and GWS-Sea apply to the wounded, sick, and shipwrecked belonging

The meaning of the words ‘wounded and sick’ is a matter of common sense and good faith. They cover combatants
who have fallen by reason of a wound or sickness of any kind, or who have ceased to fight and laid down their arms
as a consequence of what they themselves think about their health. It is the fact of falling or laying down of arms
which constitutes the claim to protection. It is only the soldier who is himself seeking to kill who may be killed.
The abandonment of all aggressiveness should put an end to aggression.”).
38

Refer to § 5.9.4 (Persons Rendered Unconscious or Otherwise Incapacitated by Wounds, Sickness, or Shipwreck).

39

Refer to § 5.9.3 (Persons Who Have Surrendered).

40

Refer to § 5.9 (Persons Placed Hors de Combat).

41

GWS-SEA art. 12 (“Members of the armed forces and other persons mentioned in the following Article, who are atsea and who are wounded, sick or shipwrecked, shall be respected and protected in all circumstances, it being
understood that the term ‘shipwreck’ means shipwreck from any cause and includes forced landings at sea by orfrom aircraft.”).

42

GWS-SEA COMMENTARY 89 (“Article 11 of the Brussels Convention of 1910 defines a shipwrecked person as
being a person found at sea in danger of perishing. That definition, however, does not introduce the concept of
need, and does not cover a shipwrecked person who manages to reach the coast or an island, or one who is not reallyin danger of losing his life. For our part, we prefer the following definition: ‘a person in distress at sea or strandedon the coast’.”).
43

GWS-SEA COMMENTARY 89 (“Another factor is involved here: the shipwrecked persons must be in need ofassistance and care, and they must naturally refrain from any hostile act.”).
44

2007 NWP 1-14M ¶8.2.3.2 (“Shipwrecked persons do not include combatant personnel engaged in amphibious,
underwater, or airborne attacks who are proceeding ashore, unless they are clearly in distress and require assistance.
In the latter case they may qualify as shipwrecked persons only if they cease all active combat activity and theenemy has an opportunity to recognize their condition of distress.”). Compare § 5.9.5.2 (Persons Deploying Into
Combat by Parachute).

439

to the following categories: 45•

members of the armed forces of a party to the conflict, as well as members of militias or
volunteer corps forming part of such armed forces; 46•

members of other militias and members of other volunteer corps meeting certain
conditions; 47•

members of regular armed forces who profess allegiance to a Government or an authority
not recognized by the Detaining Power; 48•

persons who are authorized to accompany the armed forces; 49•

members of the crews of the merchant marine and the crews of civil aircraft of the parties
to the conflict; 50 and•participants in a levée en masse. 51

These categories are the same categories of persons to whom the GPW affords POW
status if they fall into the hands of the enemy during international armed conflict. 52 Thus, the45

GWS art. 13 (“The present Convention shall apply to the wounded and sick belonging to the following categories:(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming
part of such armed forces. (2) Members of other militias and members of other volunteer corps, including those oforganized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory,
even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistancemovements, fulfil the following conditions: a. That of being commanded by a person responsible for his
subordinates; b. That of having a fixed distinctive sign recognizable at a distance; c. That of carrying arms openly; d.
That of conducting their operations in accordance with the laws and customs of war. (3) Members of regular armed
forces who profess allegiance to a Government or an authority not recognized by the Detaining Power. (4) Persons
who accompany the armed forces without actually being members thereof, such as civil members of military aircraftcrews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of
the armed forces, provided that they have received authorization from the armed forces which they accompany. (5)Members of crews, including masters, pilots and apprentices of the merchant marine and the crews of civil aircraftof the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions ininternational law. (6) Inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously
take up arms to resist the invading forces, without having had time to form themselves into regular armed units,provided they carry arms openly and respect the laws and customs of war.”); GWS-SEA art. 13 (“The present
Convention shall apply to the wounded, sick and shipwrecked at sea belonging to the following categories:[identical to those covered in GWS].”).
46

Refer to § 4.5 (Armed Forces of a State).

47

Refer to § 4.6 (Other Militia and Volunteer Corps).

48

Refer to § 4.5.3 (Regular Armed Forces Who Profess Allegiance to a Government or an Authority Not
Recognized by the Detaining Power).
49

Refer to § 4.15 (Persons Authorized to Accompany the Armed Forces).

50

Refer to § 4.16 (Crews of Merchant Marine Vessels or Civil Aircraft).

51

Refer to § 4.7 (Levée en Masse).

52

Refer to § 9.3.2 (Persons Entitled to POW Status).

440

GWS and GWS-Sea recognize that such persons who fall into enemy hands during internationalarmed conflict shall be POWs, and the provisions of international law concerning POWs (such as
the GPW) shall also apply to them. 53
The categories of persons entitled to POW status under the GPW and protection as
wounded, sick, and shipwrecked under the GWS and GWS-Sea were drafted to be the same, but
the GWS or GWS-Sea do not refer specifically to Article 4 of the GPW so that the GWS and
GWS-Sea could operate as stand-alone legal instruments if a State ratified either the GWS or the
GWS-Sea, but not the GPW. 54
Civilians who are wounded and sick are protected under the GC. 55
7.3.3 Meaning of “Respect and Protection” of the Wounded, Sick, and Shipwrecked. The
wounded, sick, and shipwrecked must be respected and protected at all times. This means thatthey should not be knowingly attacked, fired upon, or unnecessarily interfered with. 56
7.3.3.1 Incidental Harm Not Prohibited. The respect and protection due to thewounded, sick, and shipwrecked do not prohibit incidental damage or casualties due to theirproximity to military objectives or to a justifiable mistake. Combatants who are wounded, sick,or shipwrecked on the battlefield are deemed to have accepted the risk of death or further injury
due to their proximity to military operations. 57 Although the presence of the wounded, sick, or
shipwrecked on the battlefield does not serve to exempt military objectives from attack due tothe risk that such personnel would be incidentally harmed, feasible precautions must be taken to53

GWS art. 14 (“Subject to the provisions of Article 12, the wounded and sick of a belligerent who fall into enemy
hands shall be prisoners of war, and the provisions of international law concerning prisoners of war shall apply tothem.”); GWS-SEA art. 16 (“Subject to the provisions of Article 12, the wounded, sick and shipwrecked of abelligerent who fall into enemy hands shall be prisoners of war, and the provisions of international law concerning
prisoners of war shall apply to them.”).
54

GWS COMMENTARY 144-45 (“When the Diplomatic Conference set out to define the categories of persons, towhom, on their being wounded or falling sick, the First Geneva Convention was to apply, it noted that the categories
in question were precisely those which were entitled, on falling into the enemy’s hands, to be treated as prisoners ofwar. The Conference was thus logically led to refer to the contents of Article 4 of the Third Convention. There
were two ways of doing this in practice. It was possible merely to refer to the Article in question, or alternatively torepeat its substance in the First Convention. The second of these solutions was the one adopted, in accordance withthe general principle, to which the Conference adhered wherever possible, of endeavouring to make each of the four
Geneva Conventions an independent diplomatic instrument. The course thus adopted also covered the possible caseof a Power being a party to the First Convention without having ratified the Third.”). Refer to § 19.16.1 (Common
Provisions in the 1949 Geneva Conventions).
55

Refer to § 7.16 (Protection of Civilians Who Are Wounded, Sick, Infirm, or Expectant Mothers).

56

Cf. APPENDIX TO 1985 CJCS MEMO ON AP I 5-6 (“Articles 10, 12, and 15 [of AP I] then extend the provisions of
the First and Second Geneva Conventions of 1949 to civilian sick, wounded, and shipwrecked and to civilian
medical personnel and units and associated civilian religious personnel, all of whom would be ‘respected andprotected’ by the parties to the conflict, the sick and wounded to receive required care ‘to the fullest extent
practicable.’ As used in the Protocol [I to the 1949 Geneva Conventions], the term ‘respected and protected’ meansthat an activity should not be knowingly attacked, fired upon, or unnecessarily interfered with; it does not cover
accidental damage or casualties due to proximity to military objectives or to a justifiable mistake in identifying theactivity.”). Compare § 7.8.2 (Meaning of “Respect and Protection” of Medical and Religious Personnel).
57

Compare § 7.12.2.5 (Acceptance of the Risk From Proximity to Combat Operations).

441

reduce the risk of harm to the wounded, sick, or shipwrecked. 58
7.3.3.2 Search and Other Security Measures Not Prohibited. The wounded, sick,and shipwrecked are not immune from search or other necessary security measures by theenemy. 59 Searches of the wounded, sick, and shipwrecked, and other security measures applied
to them, should be consistent with those applicable to other POWs. 60
7.3.3.3 Capture of Wounded, Sick, and Shipwrecked Not Prohibited. The respect
and protection afforded the wounded, sick, and shipwrecked do not immunize them fromdetention. 61 When they fall into enemy hands, they are POWs. 62
It is not prohibited to capture the wounded and sick, even if they are in the care ofmilitary medical units or facilities, or civilian hospitals. 63 However, upon taking custody, theDetaining Power is required to ensure that they continue to receive the necessary medical care. 64
All warships of a belligerent party shall have the right to demand that the wounded, sick,or shipwrecked on board military hospital ships, and hospital ships belonging to relief societies
or to private individuals, as well as merchant vessels, yachts, and other craft shall be surrendered,whatever their nationality, provided that the wounded and sick are in a fit state to be moved andthat the warship can provide adequate facilities for necessary medical treatment. 65
In cases of capture at sea, the captor may decide, according to circumstances, whether it
is expedient to hold the wounded, sick, or shipwrecked, or to convey them to a port in thecaptor’s own country, to a neutral port, or even to a port in enemy territory. In the last case,

58

Refer to § 5.10.1.2 (Proportionality in Conducting Attacks and Protected Military Personnel and Facilities).

59

Refer to § 7.10.1.2 (Search Not Prohibited).

60

Refer to § 9.6 (Security Measures With Respect to POWs).

61

Refer to § 7.9 (Captured Medical and Religious Personnel).

62

Refer to § 7.3.2 (Persons Entitled to Protection as Wounded, Sick, or Shipwrecked Under the GWS and GWSSea).
63

For example, J.C. Massop, Hospital Ships in the Second World War, 24 BRITISH YEAR BOOK OF INTERNATIONAL
LAW 398, 405 (1947) (“In 1944 and 1945 the Germans decided to pass the hospital ships Tübingen and Gradisca
through the Allied patrol lines in the Adriatic to embark sick and wounded in Salonica. In accordance with therequirements of the Convention the ships were allowed to pass on the outward voyage, but they were diverted toAllied ports on the homeward trip and some 4,000 prisoners were made: a high percentage were only slightly
wounded and the great majority were considered likely to be fit for active service within twelve months. This action
brought forth no protest from the German Government, who considered it justified by the terms of theConvention.”).
64

Refer to § 7.5 (Humane Treatment and Care of Enemy Military Wounded, Sick, and Shipwrecked in the Power ofa Party to the Conflict).
65

GWS-SEA art. 14 (“All warships of a belligerent Party shall have the right to demand that the wounded, sick or
shipwrecked on board military hospital ships, and hospital ships belonging to relief societies or to private
individuals, as well as merchant vessels, yachts and other craft shall be surrendered, whatever their nationality,
provided that the wounded and sick are in a fit state to be moved and that the warship can provide adequate facilities
for necessary medical treatment.”).

442

POWs thus returned to their home country may not serve for the duration of the war. 66
7.3.3.4 Prohibition Against Use in Booby-Traps. Booby trapping the wounded orsick is expressly prohibited. 67
7.4 SEARCH, COLLECTION, AND AFFIRMATIVE PROTECTION OF THE WOUNDED, SICK,SHIPWRECKED, AND DEAD
At all times, and particularly after an engagement, parties to the conflict shall, without
delay, take all possible measures to search for and collect the wounded and sick on land, toprotect them against pillage and ill-treatment, to ensure their adequate care, and to search for thedead and prevent their being despoiled. 68
The GC provides for the obligation to search for, collect, protect, and care for, civilians
who are wounded, sick, shipwrecked, and dead. 69
7.4.1 GWS-Sea Obligation Regarding the Search, Collection, and Affirmative Protectionof the Wounded, Sick, Shipwrecked, and Dead. After each engagement, parties to the conflictshall, without delay, take all possible measures to search for and collect the wounded, sick, andshipwrecked at sea, to protect them against pillage and ill-treatment, to ensure their adequatecare, and to search for the dead and prevent their being despoiled. 70
The obligation in the GWS-Sea to search for, and collect, certain persons is writtendifferently than the comparable obligation in the GWS. Instead of a general obligation to takemeasures “at all times,” in Article 15 of the GWS, in Article 18 of the GWS-Sea, the obligation
to search for and collect the wounded, sick, and shipwrecked applies only “after eachengagement.”
7.4.2 Affirmative Measures to Protect Against Pillage and Ill-Treatment. If practicable,
affirmative measures (including, in some cases, the use of force) must be taken to protect thewounded, sick, and shipwrecked, from pillage or ill-treatment by any person, whether military or

66

GWS-SEA art. 16 (“The captor may decide, according to circumstances, whether it is expedient to hold them, or toconvey them to a port in the captor’s own country, to a neutral port or even to a port in enemy territory. In the lastcase, prisoners of war thus returned to their home country may not serve for the duration of the war.”).

67

Refer to § 6.12.4.9 (Certain Types of Prohibited Booby-Traps and Other Devices).

68

GWS art. 15 (“At all times, and particularly after an engagement, Parties to the conflict shall, without delay, takeall possible measures to search for and collect the wounded and sick, to protect them against pillage and illtreatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.”).
69

Refer to § 7.16.1 (Obligation to Facilitate Efforts to Search for Civilians Who Are Wounded, Killed,
Shipwrecked, or Exposed to Grave Danger).
70

GWS-SEA art. 18 (“After each engagement, Parties to the conflict shall, without delay, take all possible measures
to search for and collect the shipwrecked, wounded and sick, to protect them against pillage and ill-treatment, toensure their adequate care, and to search for the dead and prevent their being despoiled.”).

443

civilian, seeking to harm them. 71
7.4.3 Range of Measures to Search for, Collect, and Protect the Wounded, Sick, andShipwrecked. A range of measures may be taken to fulfill the obligation to search for, collect,
and protect the wounded, sick, and shipwrecked. Military forces may directly engage in these
activities. 72
In addition to searching for, collecting, and protecting the wounded, sick, andshipwrecked directly, commanders may take other measures to fulfill this obligation. For
example, commanders may request the help of civilian volunteers. 73 As another example, if awarship is unable to collect the shipwrecked after an engagement, it might be able to alert ahospital ship in the vicinity or provide the shipwrecked with a lifeboat. 74
7.4.3.1 Armistices and Local Arrangements to Permit the Removal, Exchange, orTransport of the Wounded. Whenever circumstances permit, an armistice or a suspension of fireshall be arranged, or local arrangements made, to permit the removal, exchange, and transport of
the wounded left on the battlefield. 75 Such arrangements may take the form of or include a
protected or neutral zone. 76
Likewise, local arrangements may be concluded between parties to the conflict for theremoval or exchange of wounded and sick by land or sea from a besieged or encircled area, orfor the passage of medical and religious personnel and equipment on their way to that area. 77
For example, parties to a conflict may agree to a temporary cease-fire to permit evacuation of the71

GWS COMMENTARY 152 (“In other words, the wounded and the dead must be guarded and, if necessary, defended
against all parties, whether military or civilian, who may seek to lay hands on them. Combatants, like medical
personnel, are called upon to prevent this, going, if necessary, to the length of using their arms for the purpose.”).

72

For example, George W. Bush, Remarks to the Community at Camp Lejeune, North Carolina, Apr. 3, 2003, 2003I PUBLIC PAPERS OF THE PRESIDENTS 404, 406 (“American forces and our allies are treating innocent civilians withkindness and showing proper respect to soldiers who surrender. Many Americans have seen the picture of Marine
Lance Corporal Marcco Ware carrying a wounded Iraqi soldier on his shoulders to safety for medical treatment.”).
73

Refer to § 7.4.5.1 (Requests for Civilian Volunteers to Collect and Care for the Wounded, Sick, andShipwrecked).
74

GWS-SEA COMMENTARY 131 (“The ‘possible measures’ which may be taken by the belligerents to collect the
shipwrecked are, on the other hand, many and varied and in nearly all cases they should enable the purpose of thepresent paragraph to be achieved. Thus, a warship which was unable to collect the victims of an engagement
should, for instance, alert a hospital ship if there is one in the vicinity, or even a ship of any kind better equipped
than itself; otherwise, it should resort to the possibility provided in Article 21, and appeal to neutral vessels. It canalso alert the nearest coastal authorities, or request assistance from the air forces. Generally speaking, if a warship isforced to leave shipwrecked persons to their fate, it will endeavour to provide them with the means to enable them toawait rescue or reach the coast: life-boats, food, water, a compass, charts, etc.”).
75

GWS art. 15 (“Whenever circumstances permit, an armistice or a suspension of fire shall be arranged, or local
arrangements made, to permit the removal, exchange and transport of the wounded left on the battlefield.”).
76

Refer to § 5.14.3 (Establishing Areas Where Civilians or the Wounded and Sick Are Protected).

77

Refer to § 5.19.2 (Removal and Passage of Certain Personnel – Vulnerable Civilians, Diplomatic and Consular
Personnel, the Wounded and Sick, and Medical Personnel).

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wounded from the fighting area. 78
7.4.4 Practical Limitations on the Obligation to Search for, Collect, and Take Measures toProtect the Wounded, Sick, and Shipwrecked. The obligations to search for, collect, and takeaffirmative steps to protect the wounded, sick, and shipwrecked are subject to practicallimitations.
Military commanders are to judge what is possible, and to what extent they can commit
their personnel to these duties. 79 In some cases, commanders might designate specific units or
personnel to engage in such missions.
7.4.4.1 Risk of Harm. For example, personnel performing rescue and recovery
missions need not place their lives at undue risk in an effort to search for, collect, or protect thewounded, sick, shipwrecked, or dead (e.g., recovery of a body from a minefield, or entry into adisabled enemy armored vehicle that might contain unexploded ordnance or other hazards).
Similarly, a commander of a naval ship need not increase the risk to his or her vessel fromthreats (e.g., by slowing his or her transit, or by placing his or her ship dead in the water) in orderto recover shipwrecked enemy military personnel from a sunken vessel or crashed aircraft. 80
7.4.4.2 Military Necessity. Similarly, the requirements of ongoing military
operations may render rescue efforts impractical. For example, during a fast-tempo operation(offensive or defensive), it might not be possible to devote resources to the search and collectionof the wounded, sick, and shipwrecked. In other cases, the rescue of enemy personnel may
exceed the abilities of the force and its medical personnel. For example, a small patrol operating
behind enemy lines or a submarine may not have the capability to receive and care for large
numbers of injured personnel. 81

78

For example, MARTIN MIDDLEBROOK, ARNHEM 1944: THE AIRBORNE BATTLE, 17-26 SEPTEMBER 383 (1994)(“After consulting Major-General Urquhart, Colonel Warrack decided to ask the Germans if they would allow the
wounded to be evacuated from the fighting area. He was driven with the Dutch officer, Commander Woters, who
would act as interpreter, and eventually met General Bittrich, who agreed to a truce and an evacuation. ... The
evacuation commenced that afternoon, but only in the Main Dressing Stations. ... All went well, much credit being
given to the Germans for their humane treatment of the wounded.”).
79

GWS COMMENTARY 151 (“But there are times when military operations will make the obligation to search for thefallen impracticable. There will be cases which exceed the limits of what the medical personnel can be expected todo, however great their courage and devotion. It was not possible, therefore, to make the obligation absolute. It was
accordingly provided that ‘Parties to the conflict shall, without delay, take all possible measures...’ The obligationto act without delay is strict; but the action to be taken is limited to what is possible, and it is left to the militarycommand to judge what is possible, and to decide to what extent it can commit its medical personnel.”) (ellipsis inoriginal).

80

For example, W.T. MALLISON, JR., STUDIES IN THE LAW OF NAVAL WARFARE: SUBMARINES IN GENERAL AND
LIMITED WARS 136 (1968) (“It should be mentioned also that there were apparently numerous instances when it was
not feasible for surface warships to make rescue attempts even though they had adequate passenger facilities. The
British heavy cruiser Devonshire, operating in the South Atlantic, sank the German raider Atlantis on November 22,
1941 and the German supply ship Python on November 30, 1941. In neither case was rescue attempted since it wasthought that U-boats might be in the vicinity.”).
81

See also GWS-SEA COMMENTARY 131 (“Of course, one cannot always require certain fighting ships, such as fast
torpedo-boats and submarines, to collect in all circumstances the crews of ships which they have sunk, for they will445

7.4.5 Collection and Care of the Wounded, Sick, and Shipwrecked by Civilians.
7.4.5.1 Requests for Civilian Volunteers to Collect and Care for the Wounded,
Sick, and Shipwrecked. The military authorities may appeal to the charity of the inhabitants
voluntarily to collect and care for, under their direction, the wounded, sick, and shipwrecked,
granting persons who have responded to this appeal the necessary protection and facilities. 82
Should the adverse party take or retake control of the area, that party shall likewise grant these
persons the same protection and the same facilities. 83
7.4.5.2 Spontaneous Collection and Care for the Wounded, Sick, and Shipwreckedby Inhabitants and Relief Societies. The military authorities shall permit the inhabitants andrelief societies, even in invaded or occupied areas, spontaneously to collect and care for woundedor sick of whatever nationality. 84 The civilian population shall respect these wounded and sick,and in particular abstain from offering them violence. 85
7.4.5.3 Prohibition on Molestation or Conviction for Nursing the Wounded or
Sick. No one shall ever be molested or convicted for having nursed the wounded or sick. 86 For
example, persons should not be prosecuted for offenses of aiding the enemy because they tended
to wounded members of enemy military forces.
7.4.6 Collection and Care of the Wounded, Sick, and Shipwrecked by Neutral Vessels.
The parties to the conflict may appeal to the charity of commanders of neutral merchant vessels,
yachts, or other craft, to take on board and care for wounded, sick, or shipwrecked persons, andto collect the dead. 87
Vessels of any kind responding to this appeal, and those having of their own accord
collected wounded, sick, or shipwrecked persons, shall enjoy special protection and facilities tooften have inadequate equipment and insufficient accommodation. Submarines stay at sea for a long time andsometimes they neither wish nor are able to put in at a port where they could land the persons whom they havecollected. Generally speaking, one cannot lay down an absolute rule that the commander of a warship must engage
in rescue operations if, by doing so, he would expose his vessel to attack.”). Refer to § 13.7.2 (Different Applicationof Law of War Rules in the Context of Submarine Warfare).
82

GWS art. 18 (“The military authorities may appeal to the charity of the inhabitants voluntarily to collect and carefor, under their direction, the wounded and sick, granting persons who have responded to this appeal the necessary
protection and facilities.”).
83

GWS art. 18 (“Should the adverse Party take or retake control of the area, he shall likewise grant these persons thesame protection and the same facilities.”).
84

GWS art. 18 (“The military authorities shall permit the inhabitants and relief societies, even in invaded or
occupied areas, spontaneously to collect and care for wounded or sick of whatever nationality.”).
85

GWS art. 18 (“The civilian population shall respect these wounded and sick, and in particular abstain fromoffering them violence.”).
86

GWS art. 18 (“No one shall ever be molested or convicted for having nursed the wounded or sick.”).

87

GWS-SEA art. 21 (“The Parties to the conflict may appeal to the charity of commanders of neutral merchantvessels, yachts or other craft, to take on board and care for wounded, sick or shipwrecked persons, and to collect thedead.”).

446

carry out such assistance. 88
They may, in no case, be captured on account of any such transport; but, in the absence ofany promise to the contrary, they shall remain liable to capture for any violations of neutrality
they may have committed. 89
7.5 HUMANE TREATMENT AND CARE OF ENEMY MILITARY WOUNDED, SICK, AND SHIPWRECKED
IN THE POWER OF A PARTY TO THE CONFLICTThe wounded, sick, and shipwrecked who are protected by the GWS and GWS-Sea shallbe 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. 90 Any attempts upon their lives, or violence to their persons, shall bestrictly prohibited; in particular, they shall not be murdered or exterminated or subjected totorture or to biological experiments; they shall not willfully be left without medical assistanceand care, nor shall conditions exposing them to contagion or infection be created. 91
7.5.1 Humane Treatment of the Wounded, Sick, and Shipwrecked Without Adverse
Distinction. The wounded, sick, and shipwrecked who are protected by the GWS or GWS-Sea
who are in the power of a party to the conflict are also POWs. Thus, their humane treatment isrequired by the GPW as well. 92
For example, the prohibition on subjecting the wounded, sick, or shipwrecked tobiological experiments is also reflected in the GPW. 93 Similarly, the wounded, sick, andshipwrecked who are women shall be treated with all consideration due to their sex. 94
7.5.2 Medical Care of the Wounded and Sick. Below are general rules for the medicalcare of the wounded and sick, including both those on the battlefield and those who are POWs.
88

GWS-SEA art. 21 (“Vessels of any kind responding to this appeal, and those having of their own accord collected
wounded, sick or shipwrecked persons, shall enjoy special protection and facilities to carry out such assistance.”).

89

GWS-SEA art. 21 (“They may, in no case, be captured on account of any such transport; but, in the absence of any
promise to the contrary, they shall remain liable to capture for any violations of neutrality they may havecommitted.”).

90

GWS art. 12 (“They 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.”); GWS-SEA art. 12 (“Such persons shall be treated humanely and cared for by the Parties to the conflict inwhose power they may be, without any adverse distinction founded on sex, race, nationality, religion, politicalopinions, or any other similar criteria.”).
91

GWS art. 12 (“Any attempts upon their lives, or violence to their persons, shall be strictly prohibited; in particular,
they shall not be murdered or exterminated, subjected to torture or to biological experiments; they shall not wilfully
be left without medical assistance and care, nor shall conditions exposing them to contagion or infection becreated.”); GWS-SEA art. 12 (same).
92

Refer to § 9.5 (Humane Treatment and Basic Protections for POWs).

93

Refer to § 9.5.2.4 (No Physical Mutilation or Medical, Scientific, or Biological Experiments).

94

GWS art. 12 (“Women shall be treated with all consideration due to their sex.”); GWS-SEA art. 12 (same). Referto § 9.5.6 (Due Regard for Women POWs).

447

POWs shall be provided necessary medical attention during evacuation, although they
may be temporarily kept back in a danger zone if they would face greater risks by being
evacuated than by remaining where they are. 95 Additional rules provide for the medical attention
and care for POWs who have been interned in POW camps. 96
7.5.2.1 Prohibitions Against Willful Medical Neglect or Deliberate
Endangerment. The wounded, sick, and shipwrecked shall not willfully be left without medical
assistance and care. In addition, conditions exposing them to contagion or infection shall not be
willfully created.
7.5.2.2 Affirmative Obligation to Provide Adequate Care. In addition to theprohibitions against willful neglect or deliberate endangerment, the parties to a conflict shall takeall possible measures to ensure the adequate care of the wounded, sick, and shipwrecked. 97 The
obligation to care for enemy combatants who are wounded and sick is a longstanding law of war
obligation. 98
The obligation to provide medical care incorporates practical considerations; whether
resources may be committed to medical care may depend on military necessity, such as therequirements of the mission or the immediate tactical situation. 99
7.5.2.3 Priority of Treatment Based on Medical Urgency. Only urgent medical
reasons will authorize priority in the order of treatment to be administered. 100
For example, in addressing an influx of wounded that include both friends and enemies,
doctors should attend to those patients for whom delay might be fatal or at any rate prejudicial,proceeding afterwards to those whose condition is not such as to necessitate immediate
attention. 101
95

Refer to § 9.9.2 (Conditions of Evacuation); § 9.9.1 (Delay in Evacuation for Medical Reasons).

96

Refer to § 9.14 (Medical Attention for Interned POWs).

97

Refer to § 7.4 (Search, Collection, and Affirmative Protection of the Wounded, Sick, Shipwrecked, and Dead).

98

See, e.g., LIEBER CODE art. 79 (“Every captured wounded enemy shall be medically treated, according to theability of the medical staff.”); Convention for the Amelioration of the Wounded in Armies in the Field, art. 6, Aug.
22, 1864, 22 STAT. 940, 944 (“Wounded or sick soldiers shall be entertained and taken care of, to whatever nation
they may belong.”).
99

For example, OFFICE OF THE SURGEON GENERAL OF THE ARMY, EMERGENCY WAR SURGERY 30 (2014) (“Thedecision to withhold care from a casualty who in another less overwhelming situation might be salvaged is difficult
for any physician, nurse, or medic. Decisions of this nature are unusual, even in mass casualty situations.
Nonetheless, the overarching goal of providing the greatest good to the greatest number must guide these difficult
decisions. Commitment of resources should be decided first based on the mission and immediate tactical situationand then by medical necessity, irrespective of a casualty’s national or combatant status.”).

100

GWS art. 12 (“Only urgent medical reasons will authorize priority in the order of treatment to be administered.”);GWS-SEA art. 12 (same).
101

GWS COMMENTARY 140 (“Let us suppose that the Medical Service in some place is overwhelmed by an influx ofwounded, both friends and enemies. The doctors, in such a case, will attend first to those patients for whom delay
might be fatal or at any rate prejudicial, proceeding afterwards to those whose condition is not such as to necessitate
immediate attention.”).

448

7.5.2.4 Compulsory Medical Treatment. The wounded, sick, and shipwrecked,
and other POWs, may be ordered to receive medical treatment or care that is warranted by their
medical condition.
Because POWs are subject to the laws, regulations, and orders in force in the armed
forces of the Detaining Power, POWs may be ordered to receive medical treatment just as
Detaining Power military personnel may be ordered to do so. 102 However, the wounded, sick,and shipwrecked, and other POWs, may not be subjected to medical or biological experiments,
even if Detaining Power military personnel could be ordered to be subjected to suchprocedures. 103
The Detaining Power’s authority to order POWs to receive medical treatment also derives
from the Detaining Power’s duty to ensure the well-being of POWs. 104 For example, theDetaining Power’s duty to take all sanitary measures necessary to prevent epidemics in the POW
camp may require the Detaining Power to order POWs to receive certain measures, such as
vaccinations. 105
AP I, Article 11, paragraph 5 provides for a “right to refuse any surgical operation.” 106
However, this rule could operate in an inhumane manner in some circumstances, and the UnitedStates has not accepted it. 107
7.5.2.5 Medical Attention Free of Charge. The Power detaining POWs shall bebound to provide free of charge for the medical attention required by POWs’ state of health. 108
7.5.3 Abandonment of the Wounded or Sick on the Battlefield. In an extreme case,military forces in an international armed conflict may be compelled to abandon wounded or sick102

Refer to § 9.26.1 (POWs Subject to the Laws, Regulations, and Orders in Force in the Armed Forces of the
Detaining Power).
103

Refer to § 9.5.2.4 (No Physical Mutilation or Medical, Scientific, or Biological Experiments).

104

For example, 1958 UK MANUAL ¶154 note 3 (“Again, if prisoners in British military custody resort to a hunger
strike, it would seem that they may under medical direction be forcibly fed if their lives are in danger. This ispermissible by English law and may in certain cases be a duty. If British military prisoners are allowed to die fromthe effects of a hunger strike, the camp commandant and medical officer are liable to be prosecuted for
manslaughter, Leigh v. Gladstone and Others, 26 T.L.R. 139.”).
105

Refer to § 9.11.5.1 (Necessary Sanitary Measures).

106

AP I art. 11(5) (“The persons described in paragraph 1 have the right to refuse any surgical operation. In case ofrefusal, medical personnel shall endeavour to obtain a written statement to that effect, signed or acknowledged by
the patient.”).
107

APPENDIX TO 1985 CJCS MEMO ON AP I 8 (“The provision [in AP I art. 11] specifying an absolute right to refuse
any surgery could, however, operate in an inhumane manner in some circumstances. A detainee might, for example,
refuse surgery necessary to save his own life in order to make a political point or because of ignorance or mental
incompetence.”).
108

GPW art. 15 (“The Power detaining prisoners of war shall be bound to provide free of charge for theirmaintenance and for the medical attention required by their state of health.”).

449

to the enemy. 109 The party to the conflict that is compelled to abandon wounded or sick to theenemy shall, as far as military considerations permit, leave with them a part of its medical
personnel and material to assist in their care. 110
Unlike the obligations to provide humane treatment for the wounded and sick who are incustody, the obligation to provide medical personnel and material for the care of abandoned
wounded or sick is a strong recommendation, rather than an absolute requirement. 111
The party that encounters and captures the wounded and sick who have been abandonedby another party to the conflict is not relieved of its duties because the party that has abandoned
wounded and sick personnel has not left medical personnel and material to assist in the care ofthose wounded and sick. 112 On the other hand, the party that encounters and captures thewounded and sick also is not relieved of its duties when the party that has abandoned wounded
and sick personnel has left medical personnel and material to assist in the care of those wounded
and sick. 113
In addition to providing for the medical care of wounded and sick abandoned to theenemy, other feasible precautions should be taken to ensure their safety. 114
7.6 ACCOUNTABILITY INFORMATION FROM THE ENEMY MILITARY WOUNDED, SICK,SHIPWRECKED, AND DEAD
The GWS and GWS-Sea impose certain obligations to gather and report information inorder to gain as full an accounting as possible for captured enemy personnel and enemy deadrecovered from the battlefield. These obligations complement similar obligations in the GPW to

109

For example, STEPHEN BADSEY, ARNHEM 1944: OPERATION ‘MARKET GARDEN’ 85 (1993) (“At Arnhem itself,
10,300 men of 1st British Airborne Division and 1st Polish Parachute Brigade landed from air. Some 2,587 men
escaped across the Rhine in Operation ‘Berlin’ (1,741 of 1st British Airborne, 422 of the Gilder Pilot Regiment, 160
Poles and 75 from the Dorsetshire Regiment), and 240 more returned later with the aid of the PAN. About 1,600
wounded were left behind in the Oosterbeek pocket, together with 204 medical officers and chaplains who
volunteered to stay. The Germans claimed 6,450 prisoners taken, wounded or not, and 1st British Airborne
therefore lost about 1,300 killed.”).
110

GWS art. 12 (“The Party to the conflict which is compelled to abandon wounded or sick to the enemy shall, as far
as military considerations permit, leave with them a part of its medical personnel and material to assist in theircare.”).
111

GWS COMMENTARY 142 (“If this provision [paragraph 5 of Article 12 of the GWS] cannot, therefore, be
considered imperative, it represents none the less a clear moral obligation which the responsible authority cannot
evade except in cases of urgent necessity. … Paragraph 2 [of Article 12 of the GWS] imposes an absolute obligation
to which there are no exceptions; paragraph 5 is a recommendation, but an urgent and forcible one.”).

112

GWS COMMENTARY 142 (“It should, moreover, be noted that this provision is in no way bound up with the
obligation, imposed upon the Parties to the conflict by paragraph 2, to care for the wounded. A belligerent can neverrefuse to care for enemy wounded he has picked up, on the pretext that his adversary has abandoned them without
medical personnel and equipment. On the contrary, he is bound to give to them the same care as he gives thewounded of his own army.”).

113

Refer to § 7.9.6 (No Relief of Obligations of the Detaining Power).

114

Compare § 9.9.3.2 (Feasible Precautions to Ensure Safety).

450maintain accountability for POWs. 115
7.6.1 Recording Identifying Information. Parties to the conflict shall record as soon as
possible, in respect of each wounded, sick, shipwrecked, or dead person of the adverse party
falling into their hands, any particulars that may assist in his or her identification. 116 These
records should, if possible, include: 117•

designation of the Power on which the person depends;•

surname (i.e., last name) and first name or names (i.e., first and middle names);•

army, regimental, personal, or serial number;•date of birth;•any other particulars shown on the person’s identity card or disc; 118•date and place of capture or death; and•particulars concerning wounds or illness, or cause of death.
The GPW requires the collection of a similar set of information for all POWs. 119

In order to implement these obligations, as part of their initial processing, the recoveringor capturing unit should endeavor to obtain this information from each living POW. 120 POWs
who, owing to their physical or mental condition, are unable to state their identity, shall behanded over to the medical service. 121
Other sources of information should be used to establish the identity of the wounded,
sick, shipwrecked, and dead. For example, items associated with the person (e.g., personal
effects, a life jacket bearing the name of the ship on which that person served) should be
examined, and other members of the person’s unit should be questioned.
115

Refer to § 9.31 (National Accounting of the Detention of POWs).

116

GWS art. 16 (“Parties to the conflict shall record as soon as possible, in respect of each wounded, sick or deadperson of the adverse Party falling into their hands, any particulars which may assist in his identification.”); GWSSEA art. 19 (“The Parties to the conflict shall record as soon as possible, in respect of each shipwrecked, wounded,sick or dead person of the adverse Party falling into their hands, any particulars which may assist in his
identification.”).
117

GWS art. 16 (“These records should if possible include: (a) designation of the Power on which he depends; (b)army, regimental, personal or serial number; (c) surname; (d) first name or names; (e) date of birth; (f) any otherparticulars shown on his identity card or disc; (g) date and place of capture or death; (h) particulars concerning
wounds or illness, or cause of death.”); GWS-SEA art. 19 (same).
118

Refer to § 9.4.3 (Issue of Identification Cards to Persons Liable to Become POWs).

119

Refer to § 9.31.1 (Accountability Information That the Detaining Power Should Collect).

120

Refer to § 9.8.4 (Accountability Information That POWs Are Bound to Provide Upon Questioning).

121

Refer to § 9.8.4.1 (POWs Unable to State Their Identity).

451

An examination of a deceased person’s body may also facilitate identification bygathering information that can be used to identify the person later (e.g., measurements anddescription of the body and its physical features, examination of the teeth, fingerprints,
photograph, DNA samples). 122 This examination should be conducted before burial or
cremation. 123
7.6.2 Forwarding Identifying Information. As soon as possible, the above mentioned
identifying information shall be forwarded to the National POW Information Bureau described in
Article 122 of the GPW, which shall transmit this information to the Power on which these
persons depend through the intermediary of the Protecting Power and of the Central POW
Agency. 124
7.6.2.1 Military Necessity to Delay Reporting. As the phrase “as soon as
possible” reflects, reporting may be delayed due to practical considerations, including security
risks. 125
7.6.3 U.S. Practice in Reporting Through the ICRC Central Tracing Agency. In U.S.
practice, information has been provided to the Theater Detainee Reporting Center, which in turnprocesses it and reports it to the National Detainee Reporting Center, which has then transmitted
it to the ICRC Central Tracing Agency, acting as the Central POW Information Agency. 126
7.7 TREATMENT AND HANDLING OF ENEMY MILITARY DEAD
The GWS and GWS-Sea address the treatment and handling of enemy dead who havebeen collected from the battlefield. 127 However, the provisions of the GWS and GWS-Sea
relating to the treatment and handling of enemy dead may also be interpreted to include wounded
and sick combatants who have died shortly after having been collected. 128 The GPW provides

122

See GWS COMMENTARY 177 (“In the absence of papers recourse must be had to other methods which will makeit possible for the adverse Party itself to establish his identity, e.g. measurements and description of the body and its
physical features, examination of the teeth, fingerprints, photograph, etc.”).
123

Refer to § 7.7.4.1 (Examination of Bodies Before Burial or Cremation).

124
GWS art. 16 (“As soon as possible the above mentioned information shall be forwarded to the Information
Bureau described in Article 122 of the Geneva Convention relative to the Treatment of Prisoners of War of August
12, 1949, which shall transmit this information to the Power on which these persons depend through theintermediary of the Protecting Power and of the Central Prisoners of War Agency.”); GWS-SEA art. 19 (same).
125See, e.g., GWS-SEA COMMENTARY 138 (“A warship always has good reasons for communicating by radio as
little as possible, and one cannot therefore expect it to transmit by that means sundry information about the
shipwrecked or sick whom it may have picked up. It will delay doing so until it has arrived at a port in its homecountry, and the authorities on land will then have to notify the enemy.”).
126

Refer to § 9.31.4 (U.S. Practice in Reporting to the ICRC Central Tracing Agency).

127

GWS COMMENTARY 179 (noting that “the First Convention was essentially concerned with the dead picked up
on the battlefield”).

128

GWS COMMENTARY 176 (“In the first place the present Article (Article 17) is essentially concerned with thedead picked up by the enemy on the battlefield, that is to say, with the mortal remains of combatants who have neverfor one moment been prisoners of war. Again, combatants who have died shortly after having been picked up
wounded or sick, will have succumbed to the wounds or sickness which brought them under the protection of the452other rules relating to POWs who have died while in detention. 129 Thus, certain enemy deadmay be addressed by both the GPW and GWS.
Although the provisions of the GWS and GWS-Sea are not applicable to civilian dead, inmany cases it may be appropriate and practical to apply those rules by analogy. The GC
provides rules relating to protected persons who have died while interned. 130
7.7.1 Treatment of Enemy Military Dead. Subject to the tactical situation and sanitation
requirements, the handling and burial of enemy military dead must be discharged with the same
respect as would be afforded to, or expected for, friendly military dead. The respectful treatmentof the dead is one of the oldest rules in the law of war. 131
7.7.1.1 No Disrespectful or Degrading Treatment of the Dead. Enemy military
dead must be protected from disrespectful or degrading acts. 132 For example, mutilation orcannibalism of dead bodies is prohibited. 133 In addition, posing with bodies for photographs orFirst Convention, and it is therefore only natural that they should remain subject to the provisions of that
Convention.”).
129

Refer to § 9.34 (Death of POWs).

130

Refer to § 10.34 (Death of Internees).

131

See, e.g, GROTIUS, LAW OF WAR & PEACE 455-56 (2.19.3.1) (“Consequently, all agree that even public enemies
are entitled to burial. Appian calls this ‘a common right of wars’; Philo, ‘the common interchange in war’. Says
Tacitus: ‘Not even enemies begrudge burial.’ Dio Chrysostom says that this right is observed even ‘among
enemies’; he adds, ‘even though hatred has reached the utmost limit.’ In treating of the same matter, Lucan says thatthe laws and customs of humanity must be observed in the case of an enemy. The same Sopater, who was cited
above, asks: ‘What war has deprived the human race of this last honour? What enmity has extended the memory ofevil deeds to such a point that it would dare to violate this law?’ And Dio Chrysostom, whom I have just cited, in
his oration On the Law, says: ‘For this reason no one judges enemies after death, and wrath and insult are notextended to their bodies.’”).
132

For example, Trial of Max Schmid, Outline of the Proceedings, XIII U.N. LAW REPORTS 151 (U.S. General
Military Government Court, Dachau, Germany, May 19, 1947) (“The third charge against the accused was that hedid ‘wilfully, deliberately and wrongfully encourage, aid, abet and participate in the maltreatment of a deadunknown member of the United States Army.’ … The evidence showed that shortly before the time of the allied
invasion of France the body of a dead U.S. airman was brought to his dispensary by a detail whose duty it was tocollect dead bodies, and to remove them from the battlefield. The accused severed the head from the body, boiled it
and removed the skin and flesh and bleached the skull which he kept on his desk for several months. The
prosecution alleged that he eventually sent it to his wife in Germany as a souvenir.”).

133

For example, H. Wayne Elliott, The Third Priority: The Battlefield Dead, ARMY LAWYER 3, 14 (Jul. 1996)(“Reports of the mutilation of bodies, particularly cutting the ears off dead enemy soldiers, also circulated. One
such incident was filmed and shown on the CBS Evening News in 1967. In another incident which occurred in
1967, an Army sergeant was court-martialed for ‘conduct to the prejudice of good order and discipline,’ a violationof Article 134 of the Uniform Code of Military Justice (UCMJ). The sergeant was convicted of decapitating two
enemy corpses and posing for a photograph with the heads. The disciplinary or judicial action taken in theseincidents is proof that such conduct was not sanctioned by the command in Vietnam. In October 1967, GeneralWestmoreland, United States Commander in Vietnam, described the practice of cutting ears and fingers off the deadas ‘subhuman’ and ‘contrary to all policy and below the minimum standards of human decency.’”); Trial of Max
Schmid, Notes on the Case: Mutilation of Dead Bodies and Refusal of Honourable Burial, XIII U.N. LAW REPORTS
151, 152 (U.S. General Military Government Court, Dachau, Germany, May 19, 1947) (“Another United States
Military Commission at the Mariana Islands (2nd-15th August, 1946) tried and convicted Tachibana Yochio, a
Lieutenant-General in the Japanese Army and 13 others, of murdering 8 prisoners of war. Some of the accused werealso charged with ‘preventing an honourable burial due to the consumption of parts of the bodies of prisoners of war

453

leaving a “calling card” on a body are also inconsistent with the respectful treatment of the dead.
7.7.1.2 Prohibition Against Booby-Trapping Dead Bodies. The dead may not bebooby-trapped. 134
7.7.2 Handling of Personal Effects Belonging to Enemy Dead. During internationalarmed conflict, personal property recovered from enemy dead becomes the property of therecovering State for the purpose of returning it to the next-of-kin of the deceased.
7.7.2.1 Measures to Prevent the Dead From Being Despoiled. At all times, andparticularly after an engagement, parties to the conflict shall, without delay, take all possible
measures to prevent the dead from being despoiled. 135 This means that the personal effects ofdeceased persons may not be pillaged or otherwise taken without proper authorization. 136
Individuals are not entitled to retain the personal effects of a deceased person as “booty”;
the individual military member or person accompanying the armed forces who captures or finds
enemy property acquires no title or claim. 137
7.7.2.2 Forwarding Valuable Articles Found on the Dead. Parties to the conflictshall collect and forward, through the National POW Information Bureau, one-half of the double
identity disc, last wills or other documents of importance to the next of kin, money, and ingeneral all articles of an intrinsic or sentimental value, which are found on the dead. 138
If there is only a single identity disc, it should remain with the body if the body is to beburied on land, so that the body may subsequently be identified as needed. 139 If the body is to beburied at sea, then the single identity disc itself should be collected and forwarded through theby the accused during a special meal in the officers’ mess.’ They were found guilty of these charges; sentences
ranging from death to imprisonment for 5 years were imposed. (3) An Australian Military Court at Wewak (30thNovember, 1945) sentenced Tazaki Takehiko, a First Lieutenant in the Japanese Army to death for ‘mutilating thedead body of a prisoner of war’ and for ‘cannibalism.’ The sentence was commuted to 5 years’ imprisonment by theconfirming officer.”).
134

Refer to § 6.12.4.9 (Certain Types of Prohibited Booby-Traps and Other Devices).

135

GWS art. 15 (“At all times, and particularly after an engagement, Parties to the conflict shall, without delay, takeall possible measures to search for and collect the wounded and sick, to protect them against pillage and illtreatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.”).
136

GWS COMMENTARY 152 footnote 2 (“Although this Article speaks only of measures to prevent the ‘despoiling’(French, dépouillement) of the dead, it incontestably involves a prohibition of ‘pillage’ (French, pillage) of thedead.”).

137

Refer to § 5.17.3.2 (Ownership of Captured or Found Property on the Battlefield).

138

GWS art. 16 (“They shall likewise collect and forward through the same bureau one half of a double identity
disc, last wills or other documents of importance to the next of kin, money and in general all articles of an intrinsic
or sentimental value, which are found on the dead.”); GWS-SEA art. 19 (“They shall likewise collect and forward
through the same bureau one half of the double identity disc, or the identity disc itself if it is a single disc, last wills
or other documents of importance to the next of kin, money and in general all articles of an intrinsic or sentimental
value, which are found on the dead.”).
139

Refer to § 7.7.4.2 (Burial on Land).

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National POW Information Bureau. 140
These articles, together with unidentified articles, shall be sent in sealed packets,
accompanied by statements giving all particulars necessary for the identification of the deceased
owners, as well as by a complete list of the contents of the parcel. 141
The GPW also requires the forwarding of wills and all personal valuables left by POWs,
including those who have died. 142
7.7.3 Preparation and Forwarding of Death Certificates and Lists of the Dead. Parties tothe conflict shall prepare and forward to each other, through the National POW Information
Bureau, certificates of death or duly authenticated lists of the dead. 143 Where applicable, thesecertificates or lists shall state the circumstances and reasons for cremation. 144
The GPW provides further requirements for death certificates and lists of persons whodied as POWs. 145
7.7.4 Handling of Enemy Battlefield Dead – Burial and Cremation.
7.7.4.1 Examination of Bodies Before Burial or Cremation. Parties to the conflictshall ensure that burial (whether on land or at sea) or cremation of the dead, carried out
individually as far as circumstances permit, is preceded by a careful examination, if possible by a
medical examination, of the bodies, with a view to confirming death, establishing identity, andenabling a report to be made. 146
An examination helps ensure that persons who are still living are not mistakenly buried or
cremated. An examination also helps ensure that accountability information can be gathered and140

See GWS-SEA COMMENTARY 144 (“Provision is still made for the possibility of military personnel being issued
with single discs only, inscribed with the bare particulars. In the case of burial on land, such a disc must remain
with the body, so that the latter may be identifiable at any time. In the case of burial at sea, it must be removed andsent to the deceased’s home country, for a body buried at sea is usually wrapped in a weighted sailcloth bag and weknow of no instance of one having been washed ashore; there is therefore no question of subsequentidentification.”).
141

GWS art. 16 (“These articles, together with unidentified articles, shall be sent in sealed packets, accompanied bystatements giving all particulars necessary for the identification of the deceased owners, as well as by a complete listof the contents of the parcel.”); GWS-SEA art. 19 (same).
142

Refer to § 9.31.2.3 (Collection of Personal Valuables Left by POWs).

143

GWS art. 16 (“Parties to the conflict shall prepare and forward to each other through the same bureau, certificatesof death or duly authenticated lists of the dead.”); GWS-SEA art. 19 (same).
144

Refer to § 7.7.4.4 (Cremation).

145

Refer to § 9.34.1 (Transmittal of Wills); § 9.34.2 (Death Certificates).

146

GWS art. 17 (“Parties to the conflict shall ensure that burial or cremation of the dead, carried out individually as
far as circumstances permit, is preceded by a careful examination, if possible by a medical examination, of thebodies, with a view to confirming death, establishing identity and enabling a report to be made.”); GWS-SEA art. 20(“Parties to the conflict shall ensure that burial at sea of the dead, carried out individually as far as circumstances
permit, is preceded by a careful examination, if possible by a medical examination, of the bodies, with a view toconfirming death, establishing identity and enabling a report to be made.”).

455

forwarded in accordance with other requirements. 147
7.7.4.2 Burial on Land. Parties to the conflict shall further ensure that the deadare honorably interred, if possible according to the rites of the religion to which they belonged,
and that their graves are respected, grouped if possible according to the nationality of thedeceased, properly maintained, and marked so that they may always be found. 148 The use ofcollective graves should be avoided. 149
One-half of the double identity disc, or the identity disc itself if it is a single disc, should
remain on the body. 150
7.7.4.3 Burial at Sea. Burial at sea is contemplated by the GWS-Sea. Burial atsea shall be conducted honorably and, if possible, according to the rites of the religion to which
the dead belonged.
Where a double identity disc is used, one-half of the disc should remain on the body. 151
On the other hand, if a single identity disc is used, then it should be collected and forwarded
through the National POW Information Bureau along with other valuable articles. 152
An examination and report are especially important in such cases in order to ensure that
accountability information is collected and forwarded. 153 The position (latitude and longitude)
and the date should be recorded in the death certificate. 154
7.7.4.4 Cremation. Bodies shall not be cremated except for imperative reasons ofhygiene or for motives based on the religion of the deceased. 155 For example, hygiene reasons
may include the risk of contamination to recovery personnel or other personnel from disease or
exposure to chemical or biological warfare agents.
In case of cremation, the circumstances and reasons for cremation shall be stated in detail

147

Refer to § 7.6 (Accountability Information From the Enemy Military Wounded, Sick, Shipwrecked, and Dead);§ 7.7.3 (Preparation and Forwarding of Death Certificates and Lists of the Dead).
148

GWS art. 17 (“They shall further ensure that the dead are honourably interred, if possible according to the rites of
the religion to which they belonged, that their graves are respected, grouped if possible according to the nationalityof the deceased, properly maintained and marked so that they may always be found.”).
149

Refer to § 9.34.3.2 (Burial).

150

GWS art. 17 (“One half of the double identity disc, or the identity disc itself if it is a single disc, should remainon the body.”).
151

GWS-SEA art. 20 (“Where a double identity disc is used, one half of the disc should remain on the body.”).

152

Refer to § 7.7.2.2 (Forwarding Valuable Articles Found on the Dead).

153

Refer to § 7.7.4.1 (Examination of Bodies Before Burial or Cremation).

154

GWS-SEA COMMENTARY 143 (“If, as will more often be the case, they are buried at sea, then the position(latitude and longitude) and date alone need be mentioned.”).

155

GWS art. 17 (“Bodies shall not be cremated except for imperative reasons of hygiene or for motives based on thereligion of the deceased.”).

456

in the death certificate or on the authenticated list of the dead. 156
7.7.5 Graves Registration Service. In order to ensure that graves may always be found,parties to the conflict shall organize at the commencement of hostilities an Official Graves
Registration Service to allow subsequent exhumations and to ensure the identification of bodies,whatever the site of the graves, and the possible transportation to the home country. 157 The
Graves Registration Service shall also identify, record, and respectfully keep the ashes until they
can be disposed of in accordance with the wishes of the home country. 158
The GPW provides additional requirements for the Graves Registration Service withrespect to POWs who have died while POWs. 159
7.7.5.1 Exchange of Information Regarding Battlefield Graves. As soon as
circumstances permit, and at the latest at the end of hostilities, the Graves Registration Servicesof the belligerents shall exchange, through the National POW Information Bureaus, lists showing
the exact location and markings of the graves, together with particulars of the dead interred
therein. 160
7.8 RESPECT AND PROTECTION OF CATEGORIES OF MEDICAL AND RELIGIOUS PERSONNEL
Certain categories of medical and religious personnel shall be respected and protectedduring military operations.
7.8.1 Categories of Persons Who Are Entitled to Respect and Protection as Medical andReligious Personnel on the Battlefield. The categories of persons who are entitled to respect andprotection as medical and religious personnel during military operations include:•

military medical and religious personnel, including 161

156

GWS art. 17 (“In case of cremation, the circumstances and reasons for cremation shall be stated in detail in thedeath certificate or on the authenticated list of the dead.”).
157

GWS art. 17 (“They shall further ensure that the dead are honourably interred, if possible according to the rites of
the religion to which they belonged, that their graves are respected, grouped if possible according to the nationalityof the deceased, properly maintained and marked so that they may always be found. For this purpose, they shallorganize at the commencement of hostilities an Official Graves Registration Service, to allow subsequent
exhumations and to ensure the identification of bodies, whatever the site of the graves, and the possible
transportation to the home country.”).
158

GWS art. 17 (“These provisions shall likewise apply to the ashes, which shall be kept by the Graves Registration
Service until proper disposal thereof in accordance with the wishes of the home country.”).
159

Refer to § 9.34.4.1 (Records Held by the Graves Registration Service).

160

GWS art. 17 (“As soon as circumstances permit, and at latest at the end of hostilities, these Services shallexchange, through the Information Bureau mentioned in the second paragraph of Article 16, lists showing the exact
location and markings of the graves, together with particulars of the dead interred therein.”).
161

GWS art. 24 (“Medical personnel exclusively engaged in the search for, or the collection, transport or treatmentof the wounded or sick, or in the prevention of disease, staff exclusively engaged in the administration of medical
units and establishments, as well as chaplains attached to the armed forces, shall be respected and protected in all
circumstances.”). Refer to § 4.9 (Military Medical and Religious Personnel).

457

o medical personnel exclusively engaged in medical duties; 162o administrative staff exclusively engaged in support to medical units; 163 ando chaplains attached to the armed forces; 164•

auxiliary medical personnel, if they are carrying out their medical duties at the time when
they come into contact with the enemy or fall into the enemy’s hands; 165•

authorized staff of voluntary aid societies; 166•

staff of a recognized aid society of a neutral country; 167 and•the religious, medical, and hospital personnel of hospital ships and their crews. 168

7.8.2 Meaning of “Respect and Protection” of Medical and Religious Personnel. The
respect and protection accorded medical and religious personnel by the GWS and GWS-Sea
mean that they must not knowingly be attacked, fired upon, or unnecessarily prevented fromdischarging their proper functions. 169
7.8.2.1 Incidental Harm Not Prohibited. The incidental killing or wounding ofsuch personnel, due to their presence among or in proximity to combatant elements actuallyengaged by fire directed at the latter, gives no just cause for complaint. 170 Medical and religious
personnel are deemed to have accepted the risk of death or injury due to their proximity to
military operations. 171 Although the presence of medical and religious personnel does not serve
162

Refer to § 4.9.1.1 (Medical Personnel Exclusively Engaged in Medical Duties).

163

Refer to § 4.9.1.2 (Staff Exclusively Engaged in Support to Medical Units and Establishments).

164

Refer to § 4.9.1.3 (Chaplains Attached to the Armed Forces).

165

GWS art. 25 (“Members of the armed forces specially trained for employment, should the need arise, as hospitalorderlies, nurses or auxiliary stretcher-bearers, in the search for or the collection, transport or treatment of thewounded and sick shall likewise be respected and protected if they are carrying out these duties at the time when
they come into contact with the enemy or fall into his hands.”). Refer to § 4.13 (Auxiliary Medical Personnel).
166

Refer to § 4.11 (Authorized Staff of Voluntary Aid Societies).

167

Refer to § 4.12 (Staff of a Recognized Aid Society of a Neutral Country).

168

GWS-SEA art. 36 (“The religious, medical and hospital personnel of hospital ships and their crews shall be
respected and protected; they may not be captured during the time they are in the service of the hospital ship,whether or not there are wounded and sick on board.”).
169

1956 FM 27-10 (Change No. 1 1976) ¶225 (“b. What is Meant by Respect and Protection. The respect andprotection accorded personnel of certain categories by Articles 19 (par. 220), 24 (par. 67), and 25 (par. 226), GWS,
mean that they must not knowingly be attacked, fired upon, or unnecessarily prevented from discharging theirproper 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.”).
170

See GREENSPAN, MODERN LAW OF LAND WARFARE 57 (Medical personnel and chaplains “must accept the risksof accidental death or injury as a result of war operations.”).

171

Compare § 7.12.2.5 (Acceptance of the Risk From Proximity to Combat Operations).

458

to exempt nearby military objectives from attack due to the risk that military medical andreligious personnel would be incidentally harmed, feasible precautions must be taken to reduce
the risk of harm to military medical and religious personnel. 172
7.8.2.2 Search and Other Security Measures Not Prohibited. Medical andreligious personnel are not immune from search or other necessary security measures by theenemy. 173 Searches of medical and religious personnel, and other security measures applied tothem, should be consistent with the rules applicable when such actions are taken with respect toPOWs. 174
7.8.2.3 Capture Not Prohibited. The respect and protection afforded medical andreligious personnel do not immunize them from detention. 175 However, certain classes of
medical and religious personnel are, under other rules, exempt from detention or capture. 176
7.8.3 Loss of Protection for Medical and Religious Personnel From Being Made the
Object of Attack. Medical and religious personnel forfeit their protected status and therefore
may be made the object of attack if they, outside of their humanitarian duties, participate in
hostilities or otherwise commit acts harmful to the enemy. 177
For example, weapons may not be used by medical and religious personnel against
enemy military forces except in self-defense or defense of their patients. 178 Similarly, medical or
religious personnel who, during combat, drive vehicles carrying able-bodied combatants or
ammunition for able-bodied combatants, forfeit their protection from being made the object of
attack by enemy military forces. 179 Hampering or impeding enemy military operations also
would be a basis for finding that medical or religious personnel have forfeited protection. 180
Acts that are part of their humanitarian duties, such as caring for the wounded and sick,are not a basis for depriving medical and religious personnel of their protection. 181
7.8.4 Use of the Distinctive Emblem to Facilitate the Respect and Protection of Military
172

Refer to § 5.10.1.2 (Proportionality in Conducting Attacks and Protected Military Personnel and Facilities).

173

Refer to § 7.10.1.2 (Search Not Prohibited).

174

Refer to § 9.6 (Security Measures With Respect to POWs).

175

Refer to § 7.9 (Captured Medical and Religious Personnel).

176

Refer to § 7.9.1.1 (Medical and Religious Personnel Who Are Exempt From Capture and Detention).

177

GWS COMMENTARY 221 (“Nevertheless, to enjoy immunity, they must naturally abstain from any form ofparticipation—even indirect—in hostile acts. We saw in Article 21 that the protection to which medical units areentitled ceases if they are used to commit acts ‘harmful to the enemy’. This proviso obviously applies to medical
personnel also.”). Refer to § 7.10.3 (Loss of Protection of Military Medical Units and Facilities From Being Made
the Object of Attack).

178

Refer to § 7.10.3.5 (Use of Weapons in Self-Defense or Defense of the Wounded and Sick).

179

Compare § 7.12.2.2 (No Use for Military Purposes).

180

Compare § 7.12.2.3 (No Hampering the Movement of Combatants).

181

Refer to § 7.10.3.1 (Acts Harmful to the Enemy).

459

Medical and Religious Personnel. The GWS contemplates the use of the distinctive emblem,
including through wearing an armlet bearing the emblem, to facilitate the identification ofprotected medical and religious personnel, as such.
Claiming protected medical status (including feigning such status) in order to deceive theadversary into affording protection so as then to kill or wound the enemy is prohibited. 182
As with other instances of the display of the distinctive emblem, the wearing of thearmlet with the distinctive emblem is controlled by the competent military authority, and thearmlet may be obscured or removed at the competent military authority’s direction. 183 The factthat military medical and religious personnel do not wear an armlet does not deprive them of
their protection from being made the object of attack if they are recognized as such. 184
7.8.4.1 Wearing of Armlet With the Distinctive Emblem. The GWS contemplates
that•

military medical and religious personnel; 185•

authorized staff of voluntary aid societies; 186 and•staff of a recognized aid society of a neutral country; 187

shall wear, affixed to the left arm, a water-resistant armlet bearing the distinctive emblem, issued
and stamped by the military authority. 188 In no circumstances may these personnel be deprivedof the right to wear the armlet. 189
7.8.4.2 Wearing of Armlet With Miniature Distinctive Emblem. Auxiliary medical
personnel shall wear, but only while carrying out medical duties, a white armlet bearing in its
center the distinctive sign in miniature; the armlet shall be issued and stamped by the military

182

Refer to § 5.22 (Treachery or Perfidy Used to Kill or Wound).

183

Refer to § 7.15.2 (Control of Display by the Competent Military Authority); § 7.15.2.1 (Removal or Obscurationof the Distinctive Emblem).
184

Refer to § 7.15.3 (Significance of the Display of the Distinctive Emblem).

185

Refer to § 4.9 (Military Medical and Religious Personnel).

186

Refer to § 4.11 (Authorized Staff of Voluntary Aid Societies).

187

Refer to § 4.12 (Staff of a Recognized Aid Society of a Neutral Country).

188

GWS art. 40 (“The personnel designated in Article 24 and in Articles 26 and 27 shall wear, affixed to the leftarm, a water-resistant armlet bearing the distinctive emblem, issued and stamped by the military authority.”); GWSSEA art. 42 (“The personnel designated in Articles 36 and 37 shall wear, affixed to the left arm, a water-resistantarmlet bearing the distinctive emblem, issued and stamped by the military authority.”).
189
GWS art. 40 (“In no circumstances may the said personnel be deprived of their insignia or identity cards nor of
the right to wear the armlet.”); GWS-SEA art. 42 (“In no circumstances may the said personnel be deprived of theirinsignia or identity cards nor of the right to wear the armlet.”).

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authority. 190
7.9 CAPTURED MEDICAL AND RELIGIOUS PERSONNEL
The treatment of captured persons who perform medical or religious duties depends ontheir legal status. Identification cards are used to help determine the correct status of medical
and religious personnel. Retained personnel are subject to certain duties, rights, and privileges
during detention.
7.9.1 Different Classes of Persons Performing Medical or Religious Duties. Persons who
perform medical or religious duties may be grouped into three categories based on theirtreatment with respect to detention: (1) medical and religious personnel who are exempt from
capture; (2) medical and religious personnel who may be retained; and (3) persons who perform
medical and religious duties who are held as POWs.
7.9.1.1 Medical and Religious Personnel Who Are Exempt From Capture andDetention. Certain classes of medical and religious personnel are exempt from capture anddetention. These classes of personnel include:•

staff of a recognized aid society of a neutral country; 191 and•the religious, medical, and hospital personnel of hospital ships and their crews during thetime they are in service of the hospital ship, whether or not there are wounded and sick onboard. 192

Such individuals may be held temporarily pending determination of their status or until
conditions permit their safe return or release. 193
7.9.1.2 Medical and Religious Personnel Who May Be Retained. Certain classesof medical and religious personnel who fall into the hands of the adverse party shall be retained
only in so far as the state of health, the spiritual needs, and the number of POWs require. 194
Personnel who are retained in this way are not considered POWs. 195
190

GWS art. 41 (“The personnel designated in Article 25 shall wear, but only while carrying out medical duties, awhite armlet bearing in its centre the distinctive sign in miniature; the armlet shall be issued and stamped by the
military authority.”).
191

Refer to § 4.12 (Staff of a Recognized Aid Society of a Neutral Country).

192

GWS-SEA art. 36 (“The religious, medical and hospital personnel of hospital ships and their crews shall be
respected and protected; they may not be captured during the time they are in service of the hospital ship, whether or
not there are wounded and sick on board.”).
193

Refer to § 4.12 (Staff of a Recognized Aid Society of a Neutral Country).

194

GWS art. 28 (“Personnel designated in Articles 24 and 26 who fall into the hands of the adverse Party, shall be
retained only in so far as the state of health, the spiritual needs and the number of prisoners of war require.”).
195

GPW art. 33 (“Members of the medical personnel and chaplains while retained by the Detaining Power with aview to assisting prisoners of war, shall not be considered as prisoners of war.”); GWS art. 28 (“Personnel thus
retained shall not be deemed prisoners of war.”). See also GPW art. 4C (“This Article shall in no way affect thestatus of medical personnel and chaplains as provided for in Article 33 of the present Convention.”).

461

These classes of personnel include:•

military medical and religious personnel, including 196
o medical personnel exclusively engaged in medical duties; 197o administrative staff exclusively engaged in support to medical units; 198 ando chaplains attached to the armed forces; 199 and•authorized staff of voluntary aid societies. 200

7.9.1.3 Persons Performing Medical or Religious Duties Who Are Held as POWs.
Certain classes of persons who perform medical or religious duties are held as POWs if they fall
into the hands of the enemy during international armed conflict. These classes of personnel
include:•auxiliary medical personnel, if they are carrying out their medical duties at the time when
they come into contact with the enemy or fall into the enemy’s hands; 201•

members of the armed forces who are trained as medical personnel, but not attached tothe medical service; 202•

members of the armed forces who are ministers of religion without having officiated aschaplains to their own forces; 203 and•military medical and religious personnel who forfeit their status as retained personnel
because they are not exclusively engaged in medical and religious duties. 204

7.9.2 Use of Identification Card to Help Establish Retained Personnel Status. The 1949
Geneva Conventions contemplate that identification cards will be used to help establish theproper status of persons, including the entitlement to retained personnel status. 205

196

Refer to § 4.9 (Military Medical and Religious Personnel).

197

Refer to § 4.9.1.1 (Medical Personnel Exclusively Engaged in Medical Duties).

198

Refer to § 4.9.1.2 (Staff Exclusively Engaged in Support to Medical Units and Establishments).

199

Refer to § 4.9.1.3 (Chaplains Attached to the Armed Forces).

200

Refer to § 4.11 (Authorized Staff of Voluntary Aid Societies).

201

Refer to § 4.13 (Auxiliary Medical Personnel).

202

Refer to § 4.5.2.2 (Members Trained as Medical Personnel, but Not Attached to the Medical Service).

203

Refer to § 4.5.2.3 (Members Who Are Ministers of Religion Without Having Officiated as Chaplains to Their
Own Forces).
204

Refer to § 4.9.2.3 (Exclusively Engaged in Humanitarian Duties).

205

Refer to § 4.27.1 (Identification Cards Used to Help Clarify Status).

462

Persons entitled to retained personnel status, in addition to wearing the identity discmentioned in Article 16 of the GWS or Article 19 of the GWS-Sea, shall also carry a special
identity card bearing the distinctive emblem. 206
This card shall be water-resistant and of such size that it can be carried in the pocket. It
shall be worded in the national language; shall mention at least the surname and first names, thedate of birth, the rank, and the service number of the bearer; and shall state in what capacity thebearer is entitled to the protection of the GWS or GWS-Sea. The card shall bear the photographof the owner and also either the bearer’s signature or fingerprints or both. It shall be embossedwith the stamp of the military authority. 207
The identity card shall be uniform throughout the same armed forces and, as far as
possible, of a similar type in the armed forces of the Parties to the GWS and GWS-Sea. The
parties to the conflict may be guided by the model, which is annexed, by way of example, to the
GWS and GWS-Sea. Parties to the conflict shall inform each other, at the outbreak of hostilities,of the model they are using. Identity cards should be made out, if possible, at least in duplicate,
one copy being kept by the home country. 208
In no circumstances may retained personnel be deprived of their insignia or identity cards
nor of the right to wear the armlet. 209 In case of loss, they shall be entitled to receive duplicatesof the cards and to have the insignia replaced. 210
7.9.3 Duties of Retained Personnel. Within the framework of the military laws andregulations of the Detaining Power, and under the authority of its competent service, retained
personnel shall continue to carry out, in accordance with their professional ethics, their medical
and spiritual duties on behalf of POWs, preferably those of the armed forces to which they
themselves belong. 211 This preference for retained personnel to treat the POWs of the armed
206

GWS art. 40 (“Such personnel, in addition to wearing the identity disc mentioned in Article 16, shall also carry a
special identity card bearing the distinctive emblem.”); GWS-SEA art. 42 (“Such personnel, in addition to wearing
the identity disc mentioned in Article 19, shall also carry a special identity card bearing the distinctive emblem.”).
207

GWS art. 40 (“This card shall be water-resistant and of such size that it can be carried in the pocket. It shall be
worded in the national language, shall mention at least the surname and first names, the date of birth, the rank andthe service number of the bearer, and shall state in what capacity he is entitled to the protection of the present
Convention. The card shall bear the photograph of the owner and also either his signature or his finger-prints orboth. It shall be embossed with the stamp of military authority.”); GWS-SEA (same).
208

GWS art. 40 (“The identity card shall be uniform throughout the same armed forces and, as far as possible, of asimilar type in the armed forces of the High Contracting Parties. The Parties to the conflict may be guided by themodel which is annexed, by way of example, to the present Convention. They shall inform each other, at theoutbreak of hostilities, of the model they are using. Identity cards should be made out, if possible, at least in
duplicate, one copy being kept by the home country.”); GWS-SEA art. 42 (same).
209

GWS art. 40 (“In no circumstances may the said personnel be deprived of their insignia or identity cards nor of
the right to wear the armlet.”); GWS-SEA art. 42 (same).
210

GWS art. 40 (“In case of loss, they shall be entitled to receive duplicates of the cards and to have the insignia
replaced.”); GWS-SEA art. 42 (same).
211

GWS art. 28 (“Within the framework of the military laws and regulations of the Detaining Power, and under theauthority of its competent service, they shall continue to carry out, in accordance with their professional ethics, their
medical and spiritual duties on behalf of prisoners of war, preferably those of the armed forces to which they463

forces to which the retained personnel belong is also reflected in the provisions of the GPW
related to the medical treatment of POWs. 212
Like POWs, retained personnel may be subject to disciplinary or judicial proceedings forviolations of the laws and regulations of the Detaining Power. 213
If retained personnel refuse to perform their medical duties on behalf of POWs, they are
liable to forfeit their status as retained personnel. 214
7.9.4 Return of Personnel Whose Retention Is Not Indispensable. Personnel whose
retention is not indispensable to provide for the health and spiritual needs of POWs shall be
returned to the party to the conflict to whom they belong, as soon as a road is open for theirreturn and military requirements permit. 215 As a historical matter, such return has been
exceptional while hostilities are ongoing. 216
7.9.4.1 Treatment Pending Return. Pending their return, such personnel whose
retention is not indispensable shall not be deemed POWs; nevertheless, they shall at least benefit
from all the provisions of the GPW. 217 They shall continue to fulfill their duties under the ordersof the adverse party and shall preferably be engaged in the care of the wounded and sick of theparty to the conflict to which they themselves belong. 218
On their departure, they shall take with them the effects, personal belongings, valuables,
and instruments belonging to them. 219
themselves belong.”); GPW art. 33 (“Members of the medical personnel and chaplains while retained by the
Detaining Power with a view to assisting prisoners of war, shall … continue to exercise their medical and spiritualfunctions for the benefit of prisoners of war, preferably those belonging to the armed forces upon which they
depend, within the scope of the military laws and regulations of the Detaining Power and under the control of its
competent services, in accordance with their professional etiquette.”).
212

Refer to § 9.14.2.2 (Treatment by Medical Personnel of the Power on Which They Depend).

213

Refer to § 9.26 (General Principles Applicable to POW Discipline); § 9.27 (Disciplinary Proceedings andPunishment); § 9.28 (Judicial Proceedings and Punishment).
214

Refer to § 4.9.2.3 (Exclusively Engaged in Humanitarian Duties).

215

GWS art. 30 (“Personnel whose retention is not indispensable by virtue of the provisions of Article 28 shall be
returned to the Party to the conflict to whom they belong, as soon as a road is open for their return and militaryrequirements permit.”).
216

See Lewis C. Vollmar, Jr., Military Medicine in War: The Geneva Conventions Today, Chapter 23 in II
MILITARY MEDICAL ETHICS 739, 746 (2003) (“As it always has been throughout the development of the Geneva
Conventions, retention of medical personnel remains subordinate to their repatriation. But, if history is any
indication of the future, it is likely that retention will become the rule and repatriation will remain the exception.”).
217

GWS art. 30 (“Pending their return, they shall not be deemed prisoners of war. Nevertheless they shall at least
benefit by all the provisions of the Geneva Convention relative to the Treatment of Prisoners of War of August 12,
1949.”).
218

GWS art. 30 (“They shall continue to fulfil their duties under the orders of the adverse Party and shall preferably
be engaged in the care of the wounded and sick of the Party to the conflict to which they themselves belong.”).
219

GWS art. 30 (“On their departure, they shall take with them the effects, personal belongings, valuables andinstruments belonging to them.”).

464

7.9.4.2 Selection of Personnel for Return. The selection of personnel for return
under Article 30 of the GWS shall be made irrespective of any consideration of race, religion, or
political opinion, but preferably according to the chronological order of their capture and theirstate of health. 220
7.9.4.3 Special Agreements on the Percentage of Personnel to Be Retained. Asfrom the outbreak of hostilities, parties to the conflict may determine by special agreement thepercentage of personnel to be retained, in proportion to the number of POWs and the distributionof these medical and religious personnel in the camps. 221
7.9.5 Rights and Privileges of Retained Personnel.
7.9.5.1 POW Treatment as a Minimum. Retained personnel shall receive, as aminimum, the benefits and protection of the GPW. 222
7.9.5.2 All Facilities Necessary to Provide for the Medical Care of, and Religious
Ministration to, POWs. Retained personnel shall also be granted all facilities necessary toprovide for the medical care of, and religious ministration to, POWs. 223
7.9.5.3 Visits of POWs Outside the Camp. Retained personnel, including
chaplains, shall be authorized to visit periodically POWs situated in working detachments or in
hospitals outside the camp. 224 For this purpose, the Detaining Power shall place at their disposal
the necessary means of transport. 225
7.9.5.4 Correspondence by Chaplains. Chaplains shall be free to correspond,
220

GWS art. 31 (“The selection of personnel for return under Article 30 shall be made irrespective of any
consideration of race, religion or political opinion, but preferably according to the chronological order of theircapture and their state of health.”).
221

GWS art. 31 (“As from the outbreak of hostilities, Parties to the conflict may determine by special agreement thepercentage of personnel to be retained, in proportion to the number of prisoners and the distribution of the said
personnel in the camps.”).
222

GWS art. 28 (Retained personnel “shall at least benefit by all the provisions of the Geneva Convention relative to
the Treatment of Prisoners of War of 12 August 1949.”); GPW art. 33 (“Members of the medical personnel andchaplains while retained by the Detaining Power with a view to assisting prisoners of war, shall … receive as aminimum the benefits and protection of the present Convention,”).
223

GPW art. 33 (“Members of the medical personnel and chaplains while retained by the Detaining Power with aview to assisting prisoners of war, shall not be considered as prisoners of war. They shall, however, receive as aminimum the benefits and protection of the present Convention, and shall also be granted all facilities necessary toprovide for the medical care of, and religious ministration to prisoners of war.”); GWS art. 28 (“Personnel thus
retained shall not be deemed prisoners of war. Nevertheless they shall at least benefit from the provisions of the
Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949.”).
224

GPW art. 33 (“They shall be authorized to visit periodically prisoners of war situated in working detachments orin hospitals outside the camp.”); GWS art. 28 (“They shall be authorized to visit periodically the prisoners of war inlabour units or hospitals outside of the camp.”); GPW art. 35 (“[Chaplains] shall enjoy the necessary facilities,
including the means of transport provided for in Article 33, for visiting the prisoners of war outside their camp.”).
225

GPW art. 33 (“For this purpose, the Detaining Power shall place at their disposal the necessary means oftransport.”); GWS art. 28 (“The Detaining Power shall put at their disposal the means of transport required.”).

465

subject to censorship, on matters concerning their religious duties with the ecclesiasticalauthorities in the country of detention and with international religious organizations. 226 Lettersand cards, which they may send for this purpose, shall be in addition to the quota provided for in
Article 71 of the GPW. 227
7.9.5.5 Proposal of POWs for Examination by Mixed Medical Commissions.
Retained medical personnel may propose wounded and sick POWs for examination by Mixed
Medical Commissions with a view towards repatriation or accommodation in a neutral country
and the entitlement to attend examinations conducted by Mixed Medical Commissions. 228
7.9.5.6 No Other Compulsory Duties. Although they shall be subject to theinternal discipline of the camp in which they are retained, such personnel may not be compelled
to carry out any work other than that concerned with their medical or religious duties. 229
7.9.5.7 Senior Medical Officer in the Camp. The senior medical officer in eachcamp shall be responsible to the camp military authorities for everything connected with theactivities of retained medical personnel. 230 For this purpose, parties to the conflict shall agree atthe outbreak of hostilities on the subject of the corresponding ranks of the medical personnel,
including that of societies mentioned in Article 26 of the GWS. 231
In all questions arising out of their duties, the senior medical officer, and chaplains, shallhave direct access to the military and medical authorities of the camp, who shall grant them thefacilities they may require for correspondence relating to these questions. 232

226

GPW art. 35 (“They shall be free to correspond, subject to censorship, on matters concerning their religious
duties with the ecclesiastical authorities in the country of detention and with international religious organizations.”).
227

GPW art. 35 (“Letters and cards which they may send for this purpose shall be in addition to the quota provided
for in Article 71.”). Refer to § 9.20.2.1 (POW Correspondence Quota).
228

Refer to § 9.36.5.2 (POWs Entitled to Present Themselves for Examination Before the Commission); § 9.36.5.3(Observers at the Examination).
229

GPW art. 33 (“Although they shall be subject to the internal discipline of the camp in which they are retained,
such personnel may not be compelled to carry out any work other than that concerned with their medical or religious
duties.”); GWS art. 28 (“Although retained personnel in a camp shall be subject to its internal discipline, they shallnot, however, be required to perform any work outside their medical or religious duties.”).
230

GPW art. 33 (“The senior medical officer in each camp shall be responsible to the camp military authorities foreverything connected with the activities of retained medical personnel.”); GWS art. 28 (“In each camp, the senior
medical officer of the highest rank shall be responsible to the military authorities of the camp for the professional
activity of the retained military medical personnel.”).
231

GPW art. 33 (“For this purpose, Parties to the conflict shall agree at the outbreak of hostilities on the subject of
the corresponding ranks of the medical personnel, including that of societies mentioned in Article 26 of the Geneva
Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August
12, 1949.”); GWS art. 28 (“For this purpose, from the outbreak of hostilities, the Parties to the conflict shall agree
regarding the corresponding seniority of the ranks of their medical personnel, including those of the societies
designated in Article 26.”).
232

GWS art. 28 (“In all questions arising out of their duties, this medical officer, and the chaplains, shall have directaccess to the military and medical authorities of the camp who shall grant them the facilities they may require forcorrespondence relating to these questions.”); GPW art. 33 (“This senior medical officer, as well as chaplains, shall466

7.9.5.8 Agreements on Possible Relief of Retained Personnel. During hostilities,
the parties to the conflict shall agree concerning the possible relief of retained personnel andshall settle the procedure to be followed. 233 This provision arose from limited practice in WorldWar II where retained personnel were repatriated and replaced by medical personnel from theirhome country. 234
7.9.6 No Relief of Obligations of the Detaining Power. None of the provisions of Article
28 of the GWS or Article 33 of the GPW shall relieve the Detaining Power of its obligations withregard to POWs from the medical or spiritual point of view. 235 In other words, the fact that the
Detaining Power permits and enables retained personnel to care for POWs does not relieve the
Detaining Power of its own responsibilities to care for POWs.
7.10 MILITARY MEDICAL UNITS AND FACILITIESFixed establishments and mobile medical units of the Medical Service (i.e., military
medical units and facilities) may in no circumstances be attacked, but shall at all times be
respected and protected by the parties to the conflict. 236 In addition, establishments ashore thatare entitled to the protection of the GWS shall be protected from bombardment or attack from thesea. 237
7.10.1 Meaning of “Respect and Protection” of Military Medical Units and Facilities.
The respect and protection accorded by the GWS to military medical units and facilities meanthat they must not knowingly be attacked, fired upon, or unnecessarily prevented fromdischarging their proper functions. 238
7.10.1.1 Incidental Harm Not Prohibited. The incidental harm to military
have the right to deal with the competent authorities of the camp on all questions relating to their duties. Suchauthorities shall afford them all necessary facilities for correspondence relating to these questions.”).
233

GPW art. 33 (“During hostilities, the Parties to the conflict shall agree concerning the possible relief of retained
personnel and shall settle the procedure to be followed.”); GWS art. 28 (“During hostilities the Parties to the conflictshall make arrangements for relieving where possible retained personnel, and shall settle the procedure of such
relief.”).
234

GWS COMMENTARY 257 (“During the last World War certain belligerents planned to relieve doctors retained inenemy camps, by personnel from the home country. On being replaced the doctors in question were to be
repatriated. A beginning was made in the case of some Yugoslav doctors and a larger number of French doctors
retained in Germany.”).

235

GPW art. 33 (“None of the preceding provisions shall relieve the Detaining Power of its obligations with regard
to prisoners of war from the medical or spiritual point of view.”); GWS art. 28 (“None of the preceding provisions
shall reIieve the Detaining Power of the obligations imposed upon it with regard to the medical and spiritual welfareof the prisoners of war.”).

236

GWS art. 19 (“Fixed establishments and mobile medical units of the Medical Service may in no circumstances be
attacked, but shall at all times be respected and protected by the Parties to the conflict.”).
237

GWS-SEA art. 23 (“Establishments ashore entitled to protection of the Geneva Convention for the Ameliorationof the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, shall be protected frombombardment or attack from the sea.”).
238

Refer to § 7.8.2 (Meaning of “Respect and Protection” of Medical and Religious Personnel).

467

medical units or facilities, 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. 239 Commanders
are obligated to situate military medical units and facilities such that they are not in danger fromattack against military objectives. 240 Military medical units and facilities that are positioned near
military objectives are deemed to have accepted the risk of harm due to their proximity to
military operations. 241 Although the presence of military medical units and facilities does notserve to exempt nearby military objectives from attack due to the risk that military medical units
and facilities would be incidentally harmed, feasible precautions must be taken to reduce the riskof harm to military medical units and facilities. 242
7.10.1.2 Search Not Prohibited. Military medical units and facilities are notimmune from search by the enemy. 243 For example, search may be necessary to verify that theseunits and facilities are not being used, outside their humanitarian duties, to commit acts harmful
to the enemy.
7.10.1.3 Capture Not Prohibited. The respect and protection afforded military
medical units and facilities do not immunize them from capture. 244
7.10.2 Obligation to Situate Military Medical Units and Facilities Relative to Military
Objectives. Responsible authorities shall ensure that military medical establishments and units
are, as far as possible, situated in such a manner that attacks against military objectives cannot
imperil their safety. 245
In no case may a military medical unit or facility be used for the purpose of shielding
military objectives from attack. 246
239

Compare § 7.12.2.5 (Acceptance of the Risk From Proximity to Combat Operations). For example, Col. Robert
D. Heinl, Jr., Military Writer Charges: Reds Dupe Doves On Hanoi Hospital, THE PITTSBURGH PRESS, Jan. 10,1973 (“Bach Mai Hospital, outside Hanoi, appears to have replaced North Vietnam’s inconveniently intact dikesystems as Exhibit A in the Communist propaganda campaign to convict the United States of war crimes, atrocities
and what is called ‘terror bombing.’ Bach Mai, or what is left of it, has been regularly shown to visiting American
antiwar activists as evidence that we are singling out hospitals, orphanages and similar illegal targets in the air war
against Hanoi. … Examination of current aerial photographs shows the hospital to be sited by the Communists in thevery bull’s-eye of a ring of military targets. … Besides being virtually astride the Communists’ main logistic arteryfor support of the war, the damaged hospital lies just across the road from Bach Mai Airfield, one of North
Vietnam’s most important military airdromes. Within a few hundred yards of Bach Mai Hospital, theCommunists maintain their main command center for the air defense of the North.”).
240

Refer to § 7.10.2 (Obligation to Situate Military Medical Units and Facilities Relative to Military Objectives).

241

Compare § 7.12.2.5 (Acceptance of the Risk From Proximity to Combat Operations).

242

Refer to § 5.10.1.2 (Proportionality in Conducting Attacks and Protected Military Personnel and Facilities).

243

1956 FM 27-10 (Change No. 1 1976) ¶221 (“GWS does not confer immunity from search by the enemy on
medical units, establishments, or transports.”).
244

Refer to § 7.10.5 (Capture of Military Medical Units and Facilities).

245

GWS art. 19 (“The responsible authorities shall ensure that the said medical establishments and units are, as far
as possible, situated in such a manner that attacks against military objectives cannot imperil their safety.”).
246

Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military
Operations).

468

7.10.2.1 Necessity for the Intermingling of Military Objectives and Military
Medical Units and Facilities. The obligation to situate medical units and facilities so that attacks
against military objectives cannot imperil their safety is limited by practical considerations.
For example, in order to perform their medical duties effectively, medical units andfacilities must, to some degree, be intermingled with military objectives (such as combatants orvehicles that constitute military objectives). In addition, medical units and facilities may be
faced with threats of unlawful attacks (e.g., from criminal elements or enemy combatants not
abiding by the law of war) that may warrant the placement of medical units and facilities in amore secure location (e.g., within the perimeter of a military base) so that they may be guarded
by combatant units. Logistical considerations (e.g., access to roads, water, power, or
communications) may also limit the implementation of this obligation.
7.10.2.2 Implementation of the Obligation to Situate Medical Units and Facilities.
Implementing the obligation to ensure that military medical units and facilities are, as far as
possible, situated in such a manner that attacks against military objectives cannot imperil theirsafety is a responsibility of commanders of military medical units, as well as commanders of
combatant units.
Commanders of military medical units and facilities should, as far as possible, place theirunits and facilities so as to protect them from the effects of enemy attacks on military objectives.
Commanders of combatant units should also avoid placing their units in proximity to medical
units and facilities to the extent feasible. For example, procedures should be established toensure that, during international armed conflict, non-medical vehicles or personnel do not remain
unnecessarily within or near medical facilities.
7.10.3 Loss of Protection of Military Medical Units and Facilities From Being Made the
Object of Attack. The protection from being made the object of attack, to which fixedestablishments and mobile medical units of the Medical Service are entitled, shall not cease
unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy. 247
7.10.3.1 Acts Harmful to the Enemy. Medical establishments and units mustrefrain from all interference, direct or indirect, in military operations. 248 For example, a hospital
may not be used as a shelter for able-bodied combatants or fugitives, as an arms or ammunition
depot, or as a military observation post. 249 A medical unit must not be deliberately situated so as

247

GWS art. 21 (“The protection to which fixed establishments and mobile medical units of the Medical Service areentitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy.
Protection may, however, cease only after a due warning has been given, naming, in all appropriate cases, areasonable time limit, and after such warning has remained unheeded.”).
248

GWS COMMENTARY 201 (“Medical establishments and units must observe, towards the opposing belligerent, theneutrality which they claim for themselves and which is their right under the Convention. Being placed outside thestruggle, they must loyally refrain from all interference, direct or indirect, in military operations.”).

249
GWS COMMENTARY 200-01 (“Such harmful acts would, for example, include the use of a hospital as a shelter for
able-bodied combatants or fugitives, as an arms or ammunition dump, or as a military observation post; anotherinstance would be the deliberate siting of a medical unit in a position where it would impede an enemy attack.”).

469

to hamper or impede an enemy attack. 250
Acts that are part of their humanitarian duties, such as caring for the wounded and sick,are not a basis for depriving medical units and facilities of their protection. 251
7.10.3.2 Due Warning Before Cessation of Protection. Protection may, however,cease only after a due warning has been given, naming, in all appropriate cases, a reasonable
time limit, and after such warning has remained unheeded. 252
The obligation to refrain from use of force against a medical unit acting in violation of its
mission and protected status without due warning does not prohibit the exercise of the right ofself-defense. There may be cases in which, in the exercise of the right of self-defense, a warning
is not “due” or a reasonable time limit is not appropriate. For example, forces receiving heavy
fire from a hospital may exercise their right of self-defense and return fire. 253 Such use of force
in self-defense against medical units or facilities must be proportionate. 254 For example, a single
enemy rifleman firing from a hospital window would warrant a response against the rifleman
only, rather than the destruction of the hospital.
7.10.3.3 Conditions Not Depriving Military Medical Units or Facilities ofProtection. The following conditions shall not be considered as depriving a medical unit or
establishment of the protection guaranteed by Article 19 of the GWS:

250•

That the personnel of the unit or establishment are armed, and that they use the arms intheir own defense, or in that of the wounded and sick in their charge.

•

That in the absence of armed orderlies, the unit or establishment is protected by a picket,
by sentries, or by an escort.

•

That small arms and ammunition taken from the wounded and sick and not yet handed tothe proper service are found in the unit or establishment.

Compare § 7.12.2.3 (No Hampering the Movement of Combatants).

251

GWS COMMENTARY 201 (“The Diplomatic Conference of 1949 stated specifically that protection could only
cease in the case of harmful acts committed by the units ‘outside their humanitarian duties’. It is possible for ahumane act to be harmful to the enemy, or for it to be wrongly interpreted as so being by an enemy lacking in
generosity. Thus the presence or activities of a medical unit might interfere with tactical operations; so might its
lights at night. It was stated, for example, at the Conference, that the waves given off by an X-ray apparatus could
interfere with the transmission or reception of wireless messages by a military set, or with the working of a radar
unit.”).

252

GWS art. 21 (“The protection to which fixed establishments and mobile medical units of the Medical Service areentitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy.
Protection may, however, cease only after a due warning has been given, naming, in all appropriate cases, areasonable time limit, and after such warning has remained unheeded.”).
253

See GWS COMMENTARY 202 (“As we have seen, a time limit is to be named ‘in all appropriate cases’. Theremight obviously be cases where no time limit could be allowed. Suppose, for example, that a body of troops
approaching a hospital were met by heavy fire from every window. Fire would be returned without delay.”).
254

Refer to § 2.4 (Proportionality).

470

•

That personnel and material of the veterinary service are found in the unit or
establishment, without forming an integral part thereof; and•That the humanitarian activities of medical units and establishments or of their personnel
extend to the care of civilian wounded or sick. 255

7.10.3.4 Arming of Military Medical Units or Facilities. The GWS contemplates
that the personnel of medical units or establishments may be armed, and it does not specifically
restrict the weapons that medical units or facilities may have. 256
Military medical units and facilities may be armed to the extent necessary to enable themto defend themselves or their patients against unlawful attacks. 257 For example, military medical
and religious personnel may be equipped with weapons to meet internal security needs, tomaintain discipline, to protect staff and patients from criminal threats of violence, and to preventthe theft of medical supplies. On the other hand, medical units or establishments should not be
armed such that they would appear to an enemy military force to present an offensive threat. 258
The type of weapon that is necessary for defensive or other legitimate purposes may depend on
the anticipated threats against the medical unit or facility.
7.10.3.5 Use of Weapons in Self-Defense or Defense of the Wounded and Sick.
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. 259 Medical personnel mustrefrain from all aggressive action and may not use force to resist the advance of enemy forces(e.g., to prevent the search or capture of their unit or the wounded and sick in their care by255

GWS art. 22 (“The following conditions shall not be considered as depriving a medical unit or establishment of
the protection guaranteed by Article 19: (1) That the personnel of the unit or establishment are armed, and that they
use the arms in their own defence, or in that of the wounded and sick in their charge. (2) That in the absence ofarmed orderlies, the unit or establishment is protected by a picket or by sentries or by an escort. (3) That small arms
and ammunition taken from the wounded and sick and not yet handed to the proper service, are found in the unit or
establishment. (4) That personnel and material of the veterinary service are found in the unit or establishment,
without forming an integral part thereof. (5) That the humanitarian activities of medical units and establishments orof their personnel extend to the care of civilian wounded or sick.”).
256

See GWS art. 22 (“The following conditions shall not be considered as depriving a medical unit or establishmentof the protection guaranteed by Article 19: (1) That the personnel of the unit or establishment are armed, and thatthey use the arms in their own defence, or in that of the wounded and sick in their charge. (2) That in the absence ofarmed orderlies, the unit or establishment is protected by a picket or by sentries or by an escort.”).
257

For example, U.S. military medical and religious personnel have been armed with the M9 pistol, M16 rifle, orM4 carbine.
258

For example, U.S. military medical and religious personnel have generally not been authorized to carry or
employ crew-served weapons, hand grenades, grenade launchers, antitank weapons, or Claymore munitions.
2591956 FM 27-10 (Change No. 1 1976) ¶223b (“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 theirpersonal defense and for the protection of the wounded and sick under their charge against marauders and otherpersons violating the law of war.”).

471

enemy military forces). 260
Medical personnel may use force to defend themselves or the wounded and sick in theircare from unlawful attacks, such as those from unprivileged belligerents or other persons
violating the law of war. 261
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
facility of which they form part or that they are protecting. 262
7.10.3.6 Temporary Presence of Combatants or Other Military Objectives Within
a Medical Unit or Facility. In some cases, combatants or other military objectives may be
temporarily present within a medical unit or facility. For example, a military vehicle that is notprotected as medical aircraft or transport may deliver the wounded or sick to a medical facility.
Similarly, a commander may visit a hospital to visit wounded or sick members of thecommander’s unit for the benefit of their morale, or to award medals.
The temporary presence of combatants or other military objectives within a medical unit
or facility does not automatically constitute an act harmful to the enemy that forfeits its
protection from being made the object of attack. More facts would be necessary to establish thatthe medical unit or facility was somehow being used to commit acts harmful to the enemy, suchas if a unit or facility were being used for the purpose of sheltering able-bodied combatants orproviding a base from which military operations were being planned or conducted.
7.10.4 Use of the Distinctive Emblem to Facilitate the Identification of Medical Units andFacilities. The GWS contemplates that the distinctive emblem will be used to facilitate theidentification of medical units and facilities as such.
7.10.4.1 Flying of the Distinctive Flag of the GWS Over Medical Units andFacilities. The distinctive flag of the GWS shall be hoisted only over such medical units andestablishments as are entitled to be respected under the GWS, and only with the consent of the260

See, e.g., DOD INSTRUCTION 1300.21, Code of Conduct (CoC) Training and Education, Enclosure 2 ¶E.2.3.2(Jan. 8, 2001) (“[M]edical personnel and chaplains are subject to lawful capture. They may only resort to arms in
self-defense or in defense of the wounded and sick in their charge when attacked in violation of the Geneva
Convention (I). They must refrain from all aggressive action and may not use force to prevent their capture or thatof their unit by the enemy.”); GWS COMMENTARY 203 (“But such personnel may only resort to arms for purely
defensive purposes, and in cases where it is obviously necessary. They must refrain from all aggressive action andmay not use force to prevent the capture of their unit by the enemy.”).
261

GWS COMMENTARY 203 (“If a medical unit is attacked, in violation of the Convention, its personnel cannot be
asked to sacrifice themselves without resistance. Quite apart from the above extreme case, it is clearly necessary for
medical personnel to be in a position to ensure the maintenance of order and discipline in the units under theircharge.”).

262

1956 FM 27-10 (Change No. 1 1976) ¶223b (“Medical personnel who use their arms in circumstances notjustified by the law of war expose themselves to penalties for violation of the law of war and, provided they havebeen 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.”).

472

military authorities. 263 In mobile units, as in fixed establishments, it may be accompanied by thenational flag of the party to the conflict to which the unit or establishment belongs. 264
Nevertheless, medical units that have fallen into the hands of the enemy shall not fly any
flag other than that of the GWS. 265
7.10.4.2 Necessary Steps to Make the Distinctive Emblems Clearly Visible.
Parties to the conflict shall take the necessary steps, in so far as military considerations permit, tomake the distinctive emblems indicating medical units and establishments clearly visible to theenemy land, air, and naval forces, in order to obviate the possibility of any hostile action. 266
7.10.5 Capture of Military Medical Units and Facilities. Military medical units andfacilities may be captured. Should they fall into the hands of the adverse party, their personnel
shall be free to pursue their duties, as long as the capturing Power has not itself ensured thenecessary care of the wounded and sick found in such establishments and units. 267
7.10.5.1 Disposition of Buildings, Material, and Stores of Captured Medical Units
and Facilities. The material of mobile medical units of the armed forces that fall into the handsof the enemy shall be reserved for the care of wounded and sick. 268
The buildings, material, and stores of fixed medical establishments of the armed forces
shall remain subject to the laws of war (e.g., they may be captured and used by the enemy
military force 269), but may not be diverted from their purpose as long as they are required for thecare of wounded and sick. 270 Nevertheless, the commanders of forces in the field may make useof them, in case of urgent military necessity, provided that they make previous arrangements for263

GWS art. 42 (“The distinctive flag of the Convention shall be hoisted only over such medical units andestablishments as are entitled to be respected under the Convention, and only with the consent of the military
authorities.”).
264

GWS art. 42 (“In mobile units, as in fixed establishments, it may be accompanied by the national flag of the Party
to the conflict to which the unit or establishment belongs.”).
265

GWS art. 42 (“Nevertheless, medical units which have fallen into the hands of the enemy shall not fly any flagother than that of the Convention.”).
266

GWS art. 42 (“Parties to the conflict shall take the necessary steps, in so far as military considerations permit, tomake the distinctive emblems indicating medical units and establishments clearly visible to the enemy land, air or
naval forces, in order to obviate the possibility of any hostile action.”).
267

GWS art. 19 (“Should they fall into the hands of the adverse Party, their personnel shall be free to pursue theirduties, as long as the capturing Power has not itself ensured the necessary care of the wounded and sick found insuch establishments and units.”).
268

GWS art. 33 (“The material of mobile medical units of the armed forces which fall into the hands of the enemy,
shall be reserved for the care of wounded and sick.”).
269

Refer to § 5.17 (Seizure and Destruction of Enemy Property).

270
GWS art. 33 (“The buildings, material and stores of fixed medical establishments of the armed forces shallremain subject to the laws of war, but may not be diverted from their purpose as long as they are required for thecare of wounded and sick.”).

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the welfare of the wounded and sick who are being cared for in them. 271
The material and stores of mobile medical units and fixed medical establishments of thearmed forces that fall into the hands of the enemy shall not be intentionally destroyed. 272
7.11 GROUND TRANSPORTS OF THE WOUNDED AND SICK, OR OF MEDICAL EQUIPMENT
Ground transports of wounded and sick, or of medical equipment, shall be respected andprotected in the same way as mobile medical units. 273
7.11.1 Protection of Ground Medical Transports on the Same Basis as That of Medical
Units. The protection to which these transports are entitled shall not cease unless they are used
to commit, outside their humanitarian duties, acts harmful to the enemy. 274
As with medical units, these ground transports must refrain from all interference, direct
or indirect, in military operations in order to retain protection. 275 For example, these groundtransports must not be used to transport able-bodied combatants or to carry ammunition tocombat forces. 276
The protection for ground transports of the wounded and sick, or of medical equipment,
may cease only after due warning has been given, naming, in all appropriate cases, a reasonable
time limit, and after such warning has remained unheeded. 277
7.11.2 Captured Medical Transport. Should these ground medical transports or vehicles
fall into the hands of the adverse party, they shall be subject to the laws of war, on condition thatthe party to the conflict who captures them shall in all cases ensure the care of the wounded andsick they contain. 278 The reference to the laws of war means that the adverse party may seize
and dispose of the property as enemy property. 279 Thus, the adverse party may use or dispose ofsuch transports (including by removing the distinctive emblem and using the vehicle for a hostile
purpose), provided that the capturing party ensures the care of the wounded and sick being
271

GWS art. 33 (“Nevertheless, the commanders of forces in the field may make use of them, in case of urgent
military necessity, provided that they make previous arrangements for the welfare of the wounded and sick who arenursed in them.”).
272

GWS art. 33 (“The material and stores defined in the present Article shall not be intentionally destroyed.”).

273

GWS art. 35 (“Transports of wounded and sick or of medical equipment shall be respected and protected in thesame way as mobile medical units.”). Refer to § 7.10 (Military Medical Units and Facilities).
274

Compare § 7.10.3 (Loss of Protection of Military Medical Units and Facilities From Being Made the Object ofAttack).
275

Compare § 7.10.3.1 (Acts Harmful to the Enemy).

276

Compare § 7.12.2.2 (No Use for Military Purposes).

277

Compare § 7.10.3.2 (Due Warning Before Cessation of Protection).

278

GWS art. 35 (“Should such transports or vehicles fall into the hands of the adverse Party, they shall be subject tothe laws of war, on condition that the Party to the conflict who captures them shall in all cases ensure the care of thewounded and sick they contain.”).
279

Refer to § 5.17 (Seizure and Destruction of Enemy Property).

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carried in such transports. 280
The civilian personnel and all means of transport obtained by requisition shall be subject
to the general rules of international law. 281 This rule is stated broadly to account for a variety ofsituations. For example, if the civilian personnel and vehicles have been requisitioned in
occupied territory by the Occupying Power and then captured by a State that is adverse to the
Occupying Power, the persons and property would likely belong to the capturing State or a State
that is friendly to the capturing State and thus likely would not fall under the GC. 282 On theother hand, the civilian personnel and vehicles could have been requisitioned by a belligerent
State within in its own territory and, upon capture by enemy forces, the persons and property
likely would fall under the protection of the GC. 283
7.12 HOSPITAL SHIPS, SICK-BAYS IN WARSHIPS, AND COASTAL RESCUE CRAFT
7.12.1 Types of Hospital Ships and Coastal Rescue Craft.
7.12.1.1 Military Hospital Ships. Military hospital ships, that is to say, ships built
or equipped by the Powers specially and solely with a view to assisting the wounded, sick, andshipwrecked, to treating them, and to transporting them, may in no circumstances be attacked or
captured, but shall at all times be respected and protected on condition that their names anddescriptions have been notified to the parties to the conflict ten days before those ships are
employed. 284
The characteristics, which must appear in the notification, shall include registered gross
tonnage, the length from stem to stern, and the number of masts and funnels. 285
Many States have employed ships that are equipped or converted into hospital ships,
280

GWS COMMENTARY 282 (“Medical vehicles—like the material of fixed medical establishments—are to be
subject to the laws of war. The captor may thus dispose of these vehicles, and may even use them as militarytransport. Naturally, in the latter case, the emblem must be at once removed.”).
281

GWS art. 35 (“The civilian personnel and all means of transport obtained by requisition shall be subject to thegeneral rules of international law.”).
282
Refer to § 10.3.3 (Categories of Nationals Specifically Excluded From the Definition of Protected Person Under
the GC).
283

GWS COMMENTARY 284 (“The general rules of international law must needs apply to such persons and vehicles.
These rules cannot be specified as they will vary with the evolution of international law. There are two possible
cases to be considered. In the first place, the persons and vehicles may have been requisitioned in occupied territory
by the Occupying Power; on being captured, they will be released automatically. On the other hand, the persons andvehicles may have been requisitioned by the belligerent within his own territory. On capture, the persons concerned
will have the benefit of the provisions of the Fourth Geneva Convention of 1949. The disposal of the vehicles isgoverned by Articles 52 and 53 of the Hague Regulations.”).

284

GWS-SEA art. 22 (“Military hospital ships, that is to say, ships built or equipped by the Powers specially andsolely with a view to assisting the wounded, sick and shipwrecked, to treating them and to transporting them, may inno circumstances be attacked or captured, but shall at all times be respected and protected, on condition that theirnames and descriptions have been notified to the Parties to the conflict ten days before those ships are employed.”).
285

GWS-SEA art. 22 (“The characteristics which must appear in the notification shall include registered gross
tonnage, the length from stem to stern and the number of masts and funnels.”).

475

rather than building them specifically as hospital ships. 286
7.12.1.2 Commissioned Civilian Hospital Ships. Hospital ships used by the
National Red Cross Societies, by officially recognized relief societies, or by private persons shallhave the same protection as military hospital ships and shall be exempt from capture, if the party
to the conflict on which they depend has given them an official commission and in so far as theprovisions of Article 22 of the GWS-Sea concerning notification have been complied with. 287
These ships must be provided with certificates from the responsible authorities, stating that thevessels have been under their control while fitting out and on departure. 288
7.12.1.3 Authorized Neutral Civilian Hospital Ships. Civilian hospital ships may
also be sent from neutral countries. 289
Hospital ships utilized by National Red Cross Societies, officially recognized relief
societies, or private persons of neutral countries shall have the same protection as militaryhospital ships and shall be exempt from capture, on condition that they have placed themselves
under the control of one of the parties to the conflict, with the previous consent of their own
governments and with the authorization of the party to the conflict concerned, in so far as theprovisions of Article 22 of the GWS-Sea concerning notification have been complied with. 290
7.12.1.4 Size of Hospital Ships. The protection for military hospital ships,
commissioned civilian hospital ships, and authorized neutral civilian hospital ships mentioned in286

For example, Department of State, Diplomatic Note given to the Iraqi Chargé d’affairs in Washington, D.C., Jan.
19, 1991, reprinted as Annex II to Thomas R. Pickering, Letter Dated 21 January 1991 From the Permanent
Representative of the United States of America to the United Nations Addressed to President of the Security Council,
U.N. Doc. S/22122 (Jan. 21, 1991) (“The two hospital ships are ‘USNS Mercy’ (T-AH 19) and ‘USNS Comfort’ (TAH 20). These two converted San Clemente class tankers, ex-SS Worth ex-SS Rose City, have identicalcharacteristics: … . Both ships are equipped specially and solely to assist, treat, and transport wounded, sick, andshipwrecked.”).
287

GWS-SEA art. 24 (“Hospital ships utilized by National Red Cross Societies, by officially recognized relief
societies or by private persons shall have the same protection as military hospital ships and shall be exempt from
capture, if the Party to the conflict on which they depend has given them an official commission and in so far as theprovisions of Article 22 concerning notification have been complied with.”).
288

GWS-SEA art. 24 (“These ships must be provided with certificates from the responsible authorities, stating thatthe vessels have been under their control while fitting out and on departure.”).
289

For example, LIEUTENANT GENERAL STANLEY ROBERT LARSEN AND BRIGADIER GENERAL JAMES LAWTONCOLLINS, JR., ALLIED PARTICIPATION IN VIETNAM 163-64 (1985) (“German economic and humanitarian aid,
beginning in 1966, averaged about $7.5 million annually and more than 200 technical and medical personnel servedin Vietnam. In 1966 the Federal Republic of Germany also contributed the 3,000-ton hospital ship S.S. Helgoland
to provide medical assistance to the civilian population. With eight doctors, thirty other medical personnel, and a
130-bed capacity, the ship was initially stationed near Saigon where more than 21,000 out-patient treatments were
given to approximately 6,700 patients from September 1966 until 30 June 1967. Over 850 major surgical cases
were also treated. In October of 1967 the Helgoland shifted its operations to Da Nang.”).
290

GWS-SEA art. 25 (“Hospital ships utilized by National Red Cross Societies, officially recognized relief societies,
or private persons of neutral countries shall have the same protection as military hospital ships and shall be exempt
from capture, on condition that they have placed themselves under the control of one of the Parties to the conflict,with the previous consent of their own governments and with the authorization of the Party to the conflictconcerned, in so far as the provisions of Article 22 concerning notification have been complied with.”).

476

Articles 22, 24, and 25 of the GWS-Sea, respectively, shall apply to hospital ships of any
tonnage and to their lifeboats, wherever they are operating. 291 Nevertheless, to ensure themaximum comfort and security, the parties to the conflict shall endeavor to use, for the transportof the wounded, sick, and shipwrecked over long distances and on the high seas, only hospital
ships of more than 2,000 tons gross. 292 For example, U.S. military hospital ships have adhered
to this recommendation by a large margin. 293
7.12.1.5 Coastal Rescue Craft and Fixed Coastal Installations Used Exclusively
by Them. Under the same conditions as those provided for in Articles 22 and 24 of the GWSSea, small craft employed by the State, or by the officially recognized lifeboat institutions forcoastal rescue operations, shall also be respected and protected, so far as operational
requirements permit. 294 The same shall apply so far as possible to fixed coastal installations used
exclusively by these craft for their humanitarian missions. 295
The phrase, “so far as operational requirements permit,” has been used to acknowledge
the risks incurred by such craft, because of their small size, in a zone of military operations. 296
As provided in Articles 22 and 24 of the GWS-Sea, the names and descriptions of thesesmall craft (including registered gross tonnage, the length from stem to stern, and the number of291

GWS-SEA art. 26 (“The protection mentioned in Articles 22, 24 and 25 shall apply to hospital ships of any
tonnage and to their lifeboats, wherever they are operating.”).
292

GWS-SEA art. 26 (“Nevertheless, to ensure the maximum comfort and security, the Parties to the conflict shallendeavor to utilize, for the transport of wounded, sick and shipwrecked over long distances and on the high seas,
only hospital ships of over 2,000 tons gross.”).
293

For example, Department of State, Diplomatic Note given to the Iraqi Chargé d’affairs in Washington, D.C., Jan.
19, 1991, reprinted as Annex II to Thomas R. Pickering, Letter Dated 21 January 1991 From the Permanent
Representative of the United States of America to the United Nations Addressed to President of the Security Council,
U.N. Doc. S/22122 (Jan. 21, 1991) (“The two hospital ships are ‘USNS Mercy’ (T-AH 19) and ‘USNS Comfort’ (TAH 20). These two converted San Clemente class tankers, ex-SS Worth ex-SS Rose City, have identicalcharacteristics: tonnage 54,367, gross, 35,958 net; dimensions feet (meters) 894 length, 105.6 width 32.8 draft, i.e.
depth, (272.6 x 32.2 x 10 meters); one mast forward, one funnel aft.”).
294

GWS-SEA art. 27 (“Under the same conditions as those provided for in Articles 22 and 24, small craft employedby the State or by the officially recognized lifeboat institutions for coastal rescue operations, shall also be respected
and protected, so far as operational requirements permit.”).
295

GWS-SEA art. 27 (“The same shall apply so far as possible to fixed coastal installations used exclusively by thesecraft for their humanitarian missions.”).
296

See GWS-SEA COMMENTARY 172 (“Coastal rescue craft must be respected and protected in the same way as
hospital ships, wherever they are operating. Article 30 refers to their use, and the commentary on that provision
should be consulted. The protection is not absolute, however; it is afforded ‘so far as operational requirements
permit’. This wording was used in order to take account of the risks incurred by such craft, because of their small
size, in a zone of military operations. The limitation also has regard to past events and to the requirements ofmilitary security. Thus, although lifeboats may in practice be exposed to certain risks, a belligerent which hasrecognized them will never be allowed to make a deliberate attack on them, unless they have committed a grave
breach of neutrality.”). See also II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 202 (“Itwas, however, understood that the protection promised to these low tonnage craft as well as to coastal installations
could not be absolute. Such protection can only be afforded within the measure of operational necessities. A
belligerent face to face with an oponent [sic] in a restricted maritime area would find it difficult to tolerate the trafficof a large number of very fast, small craft belonging to the adverse party.”).

477

masts and funnels) must be notified to the parties to the conflict ten days before such craft are
employed. 297 In addition, if the craft are not military craft belonging to a party to the conflict,they must be provided an official commission from the party to the conflict on which they
depend and with certificates from the responsible authorities. 298
7.12.2 Duties and Liabilities of Hospital Ships and Coastal Rescue Craft. The following
duties and liabilities apply to hospital ships and coastal rescue craft.
7.12.2.1 Relief and Assistance Without Distinction of Nationality. The militaryhospital ships, commissioned civilian hospital ships, authorized neutral civilian hospital ships,
and coastal rescue craft described in Articles 22, 24, 25, and 27 of the GWS-Sea, respectively,
shall afford relief and assistance to the wounded, sick, and shipwrecked without distinction ofnationality. 299 In other words, these vessels should help friendly and enemy personnel without
distinction. 300
7.12.2.2 No Use for Military Purposes. Parties to the GWS-Sea undertake not to
use these vessels for any military purpose. 301 These vessels must not participate in any way inthe armed conflict or the war effort. 302 For example, these vessels may not be used to relay
military orders, transport able-bodied combatants or military equipment, or engage inreconnaissance. 303 Such acts constitute acts harmful to the enemy that forfeit a vessel’s
297

Refer to § 7.12.1.1 (Military Hospital Ships).

298

Refer to § 7.12.1.2 (Commissioned Civilian Hospital Ships).

299

GWS-SEA art. 30 (“The vessels described in Articles 22, 24, 25 and 27 shall afford relief and assistance to thewounded, sick and shipwrecked without distinction of nationality.”).
300

For example, Vice Admiral Timothy Keating, News Briefing with Vice Admiral Timothy Keating, Apr. 12, 2003(“The United States Naval Ship Comfort, our hospital ship, is providing care not only to our wounded but to Iraqi
civilians and Iraqi military. This morning, there are over 80 Iraqi enemy prisoners of war who are in a significantly
serious medical condition that they have been airlifted out to the United States ship Comfort, which is on station in
the north Arabian Gulf. Eighty Iraqi military personnel and 40 Iraqi civilians, displaced civilians, all of them insignificant -- who have suffered injuries significantly enough that they are out on the Comfort.”).
301

GWS-SEA art. 30 (“The High Contracting Parties undertake not to use these vessels for any military purpose.”).

302

GWS-SEA COMMENTARY 179 (“Paragraph 2 [of Article 30 of the GWS-Sea] is self-explanatory. In return for
the immunity which they enjoy, hospital ships must refrain from participating in any way in the armed conflict or
war effort. This refers to acts even more serious than the ‘acts harmful to the enemy’ referred to in Articles 34 and35. What sanction is applied if a hospital ship commits a flagrant violation of its neutral status? It simply loses its
right to protection.”).

303

For example, The “Orel,” reported in C. J. B. HURST AND F. E. BRAY, II RUSSIAN AND JAPANESE PRIZE CASES,
VII INTERNATIONAL MILITARY LAW & HISTORY 354, 356-57 (1910) (“A hospital ship is only exempt from capture
if she fulfils certain conditions and is engaged solely in the humane work of aiding the sick and wounded. That she
is liable to capture, should she be used by the enemy for military purposes, is admitted by International Law, and isclearly laid down by the stipulations of the Hague Convention No. 3 of July 29th, 1899, for the adaptation tomaritime warfare of the principles of the Geneva Convention of August 22nd, 1864. Although the ‘Orel’ had been
lawfully equipped and due notification concerning her had been given by the Russian Government to the Japanese
Government, yet her action in communicating the orders of the Commander-in-Chief of the Russian Pacific Second
Squadron to other vessels during her eastward voyage with the squadron, and her attempt to carry persons in good
health, i.e. the master and three others of British steamship captured by the Russian fleet, to Vladivostock, which is anaval port in enemy territory, were evidently acts in aid of the military operations of the enemy. Further, when thefacts that she was instructed by the Russian squadron to purchase munitions of war, and that she occupied the478

protection from being made the object of attack and capture. 304
7.12.2.3 No Hampering the Movement of Combatants. Such vessels shall in noway hamper the movement of combatants. 305 Any deliberate attempt by a hospital vessel tohamper the movement of combatants would constitute an act harmful to the enemy, although
inadvertent actions might also put those vessels at increased of harm (e.g., if enemy forces
mistakenly believe that the vessel is acting deliberately to impede their movements). 306
For example, hospital ships and coastal rescue craft belonging to one State must notinterfere with opposing forces’ efforts to capture shipwrecked personnel, nor otherwise interferewith enemy military operations. 307 Therefore, hospital ships and coastal rescue craft should not
engage in such activities lest they forfeit the special protection afforded by the GWS-Sea.
Special agreements between the opposing forces, however, may provide protection to ships
engaged in search, rescue, or other recovery missions.
position usually assigned to a ship engaged in reconnaissance, are taken in consideration, it is reasonable to assume
that she was constantly employed for military purposes on behalf of the Russian squadron. She is, therefore, notentitled to the exemptions laid down in The Hague Convention for the adaptation to maritime warfare of theprinciples of the Geneva Convention, and may be condemned according to International Law.”); John D. Long,
Secretary of the Navy, General Orders No. 487, Apr. 27, 1898, reprinted in PAPERS RELATING TO THE FOREIGNRELATIONS OF THE UNITED STATES WITH THE ANNUAL MESSAGE OF THE PRESIDENT TRANSMITTED TO CONGRESSDECEMBER 5, 1898 1153 (1901) (“The Solace having been fitted and equipped by the Department as an ambulanceship for the naval service under the terms of the Geneva Convention [of 1868] is about to be assigned to service. …
The neutrality of the vessel will, under no circumstances, be changed, nor will any changes be made in her
equipment without the authority of the Secretary of the Navy. No guns, ammunition, or articles contraband of war,
except coal or stores necessary for the movement of the vessel, shall be placed on board; nor shall the vessel be used
as a transport for the carrying of dispatches, or officers or men not sick or disabled, other than those belonging to the
medical department.”).
304

Refer to § 7.12.6 (Forfeiture of Protection of Hospital Ships and Sick Bays).

305

GWS-SEA art. 30 (“Such vessels shall in no wise hamper the movements of the combatants.”).

306

GWS-SEA COMMENTARY 179-80 (“During an engagement, hospital ships must not hamper the movements ofother vessels, and the authors might have added that they must not get in the line of fire. Any deliberate breach of
the present provision would constitute an act harmful to the enemy, in the sense of Article 34, and the hospital shipcommitting it would then lose its right to protection under the Convention, according to the procedure laid down inthat clause. If, on the other hand, it had not acted with intent, the case would then be very close to that dealt with in
the following paragraph, which should be referred to. The hospital ship would not lose its right to protection, but itwould in fact be deprived of security.”). Refer to § 7.12.2.5 (Acceptance of the Risk From Proximity to Combat
Operations).
307

SPAIGHT, AIR POWER AND WAR RIGHTS 361-62 (“German Red Cross rescue vessels.—In August a further
attempt was made by the German Government to apply to the Red Cross to a purpose never contemplated in theConvention of 1929. It notified His Majesty’s Government, through the Swiss Government, that it proposed tomake use of a number of vessels—sixty-four in all—marked with the Red Cross to rescue airmen who came down inthe sea. His Majesty’s Government replied that the use of such vessels would interfere with the conduct of naval andmilitary operations and could not be accepted. It then went on to refer to Germany’s attacks on British hospital
ships and to the sinking of the Maid of Kent, Brighton and Paris. ‘His Majesty’s Government do not place their own
boats employed in rescuing airmen under the Red Cross, even though they have on several occasions been
deliberately attacked by the Germans while actually engaged in saving both British and German airmen, and they
regard the claim of the German Government to invest rescue boats with the privileges of the Red Cross as wholly
inadmissible.’ It may be added that such privileges were never claimed for the Walrus amphibians or the other
R.A.F. machines employed in the Air/Sea Rescue Service.”).

479

7.12.2.4 Merchant Vessels Transformed Into Hospital Ships. Merchant vesselsthat have been transformed into hospital ships cannot be put to any other use throughout the
duration of hostilities. 308
7.12.2.5 Acceptance of the Risk From Proximity to Combat Operations. During
and after an engagement, such vessels will act at their own risk. 309 A hospital ship or coastal
rescue craft operating in proximity to combat operations assumes a certain risk of damage as aresult of lawful enemy operations, including misidentification by enemy or friendly forces.
Although the presence of hospital ships or coastal rescue craft does not serve to exempt nearby
military objectives from attack due to the risk that the hospital ships or coastal rescue craft would
be incidentally damaged, feasible precautions must be taken to reduce the risk of harm tohospital ships or coastal rescue craft. 310
7.12.2.6 Control and Search of Hospital Ships and Coastal Rescue Craft. The
parties to the conflict shall have the right to control and search military hospital ships,
commissioned civilian hospital ships, authorized neutral civilian hospital ships, and costal rescue
craft mentioned in Articles 22, 24, 25, and 27 of the GWS-Sea, respectively. 311 They may refuse
assistance from these vessels, order them off, make them take a certain course, control the use of
their wireless and other means of communication, and even detain them for a period notexceeding seven days from the time of interception, if the gravity of the circumstances sorequires. 312 For example, a belligerent may delay the passage of a hospital ship belonging to its
adversary in order to avoid interference with its military operations. 313
Parties to a conflict may put a commissioner temporarily on board such vessels whosesole task shall be to see that these orders are carried out. 314

308

GWS-SEA art. 33 (“Merchant vessels which have been transformed into hospital ships cannot be put to any otheruse throughout the duration of hostilities.”).
309

GWS-SEA art. 30 (“During and after an engagement, they will act at their own risk.”).

310

Refer to § 5.10.1.2 (Proportionality in Conducting Attacks and Protected Military Personnel and Facilities).

311

GWS-SEA art. 31 (“The Parties to the conflict shall have the right to control and search the vessels mentioned in
Articles 22, 24, 25 and 27.”).
312

GWS-SEA art. 31 (“They can refuse assistance from these vessels, order them off, make them take a certain
course, control the use of their wireless and other means of communication, and even detain them for a period notexceeding seven days from the time of interception, if the gravity of the circumstances so requires.”).
313

For example, J.C. Massop, Hospital Ships in the Second World War, 24 BRITISH YEAR BOOK OF INTERNATIONAL
LAW, 398, 405-06 (1947) (“The limitation imposed on the immunity of a hospital ship has by Article 12 is flanked
by the right conferred on a belligerent by Article 4 to control the movements of a hospital ship on grounds ofoperational necessity. Such a situation arose at least twice during the 1939 war, when the German High Command
wished to pass a hospital ship through the Allied patrol lines to a besieged part. As noted above, no obstacle wasplaced in the way of the voyages to Salonica, but when the Germans sought permission to send a hospital ship to
Brest—then invested by Allied forces—it was apparent that it could not pass into the port without serious
inconvenience to the attacking forces, and it was decided to refuse the request until the tactical situation had
clarified.”).
314

GWS-SEA art. 31 (“They may put a commissioner temporarily on board whose sole task shall be to see thatorders given in virtue of the provisions of the preceding paragraph are carried out.”).

480

As far as possible, the parties to the conflict shall enter in the log of the hospital ship, in alanguage he or she can understand, the orders they have given the captain of the vessel. 315
Parties to the conflict may, either unilaterally or by particular agreements, put on board
their ships neutral observers who shall verify the strict observation of the provisions contained in
the GWS-Sea. 316
7.12.2.7 Use of Secret Codes for Communication. The GWS-Sea provides that
hospital ships may not possess or use a secret code for their wireless or other means ofcommunication. 317 The lack of secret codes for communication was intended to afford
belligerents a guarantee that hospital ships were not improperly participating in hostilities. 318
This rule was formulated before developments in modern communications technology madeencryption more common. 319 Substantial practical difficulties have arisen in construing this rulein a way that would prohibit any use of encrypted communications by hospital ships. 320
In light of the requirement for encryption in modern communications systems (e.g.,satellite communications and video teleconference systems) and navigational technology (e.g.,
global positioning systems) and the goal of ensuring that hospital ships can effectively fulfill
their humanitarian mission, the United States has employed hospital ships with the capability to315

GWS-SEA art. 31 (“As far as possible, the Parties to the conflict shall enter in the log of the hospital ship, in alanguage he can understand, the orders they have given the captain of the vessel.”).
316

GWS-SEA art. 31 (“Parties to the conflict may, either unilaterally or by particular agreements, put on board theirships neutral observers who shall verify the strict observation of the provisions contained in the present
Convention.”).
317

GWS-SEA art. 34 (“In particular, hospital ships may not possess or use a secret code for their wireless or othermeans of communication.”).

318

GWS-SEA COMMENTARY 193 (“The fact that the use of any secret code is prohibited affords a guarantee to thebelligerents that hospital ships will not make improper use of their transmitting apparatus or any other means ofcommunication. Hospital ships may only communicate in clear, or at least in a code which is universally known,
and rightly so, for the spirit of the Geneva Conventions requires that there should be nothing secret in their
behaviour vis-à-vis the enemy.”).

319

Richard J. Grunawalt, Hospital Ships in the War on Terror: Sanctuaries or Targets?, 58 NAVAL WAR COLLEGE
REVIEW 108-09 (Winter 2005) (“The genesis of these constraints [on hospital ships and secret codes] involves a few
isolated incidents many years ago when hospital ships were alleged to have used coded wireless communications
capability to transmit operational intelligence, a ‘military purpose’ use inconsistent with their protected status and in
violation of the 1899 Hague (III) Convention and the 1907 Hague (X) Convention. … Obviously, the conventionaland customary rules mandating that hospital ships not be used for any military purpose other than the care andtransport of the wounded, sick, and shipwrecked must remain inviolable. However, the likelihood that a hospital
ship would be employed to collect and promulgate military intelligence in this age of satellite sensors, over-thehorizon radar, and fixed and mobile long-range hydrophones is extremely remote; it strains the imagination to
conjure up a scenario where it would have any utility whatsoever.”).
320

For example, 2004 UK MANUAL ¶13.125 footnote 142 (“GC II, Art 34(2), states that hospital ships may notpossess or use a secret code for their wireless or other means of communication. This general wording has caused
difficulties. British forces in the Falklands conflict 1982 found that having to give orders to their hospital ships ‘inthe clear’ risked giving away their own positions or likely movements. The rule stated in paragraph 13.128 is alegitimate interpretation of Art 34(2).”).

481

conduct encrypted communications. 321 Other States have not objected to this practice. 322 Some
States have taken the same view. 323 Scholarly commentators have also supported this view. 324
Hospital ships may not use encrypted communications for military purposes (e.g.,transmitting intelligence data) or in any way that is harmful to an adversary. 325 Commissioners
or neutral observers may be placed on board hospital ships to verify compliance with this rule. 326
7.12.3 Distinctive Marking and Other Identification of Hospital Ships and Coastal Rescue
Craft. The ships designated for protection by Articles 22, 24, 25, and 27 of the GWS-Sea (i.e.,
military hospital ships, commissioned civilian hospital ships, authorized neutral civilian hospital321

For example, Michael Sirak, US Navy seeks to revise laws of war on hospital ships, Jane’s Defense Weekly 1-3(Aug. 19, 2003) (“The USN installed both encrypted communications devices … on the USNS Comfort (T-AH 20),
one of its two dedicated hospital ships, before it deployed in January to the Middle East theatre to support the USled Operation ‘Iraqi Freedom’, a US Department of Defense spokesman told Jane’s Defence Weekly. USN officials
argue that the rules preventing hospital ships from using encrypted communications devices - contained principallyin the Second Geneva Convention of 1949 - do not adequately account for technological advancements, such as
satellite communications, which are today regarded as vital for these vessels to function effectively. ‘The way mostnaval warships communicate now is done on a level that even the most simple communications have some level ofencryption,’ said one navy official. ‘Even the actual navigation of the ship can sometimes be in jeopardy if you
cannot use these encrypted forms of communication.’ According to this official, the US position is that theinternational community could allow the capability for encrypted communications, while maintaining confidence
among belligerents that a party is not exploiting it to gather and transmit intelligence on the enemy. A belligerent
retains the right under international law to place an observer on the ship, or request a neutral observer, such as fromthe International Committee of the Red Cross (ICRC), to verify compliance, the official notes.”).

322

See Wolff Heintschel Von Heinegg, The Law of Armed Conflict at Sea, in DIETER FLECK, THE HANDBOOK OF
INTERNATIONAL HUMANITARIAN LAW 463, 543 (¶1058) (3rd ed., 2013) (“Moreover, Article 34, para. 2, GC II canbe considered to have become obsolete by the subsequent practice of the states parties. Today, hospital ships, like
all warships and the majority of merchant vessels, communicate via satellite. The use of satellite communications
implies encryption for both sending and receiving messages. The only two remaining hospital ships–the USS
Comfort and the USS Mercy–do not dispose of traditional radio equipments [sic] but communicate over satellite
communications only. This fact is known to the states parties to GC II. Still, there have been no protests so far.
Hence, there are good reasons to believe that the other states parties have acquiesced in the US practice. Again, it
should not be left of out of consideration that abandoning the prohibition of using encryption for emissions would
better serve the humanitarian purposes hospital ships are to serve.”).
323

2006 AUSTRALIAN MANUAL ¶6.72 (“In order to fulfil their humanitarian mission, hospital ships should bepermitted to use cryptographic equipment provided such equipment is not used to transmit intelligence data nor in
any other way to acquire military advantage.”); 2004 UK MANUAL ¶13.125 (“In order to fulfil most effectively their
humanitarian mission, hospital ships should be permitted to use cryptographic equipment. The equipment shall not
be used in any circumstances to transmit intelligence data nor in any other way to acquire any military advantage.”).
324

See, e.g., Jane G. Dalton, Future Navies – Present Issues, 59 NAVAL WAR COLLEGE REVIEW 17, 26 (Winter2006) (“There is no need to belabor here the point that the prohibition on use of a ‘secret code’ by hospital ships isanachronistic, unrealistic, and unworkable in today’s high-technology environment, where satellite communications
are both routinely encrypted and routinely employed by military systems.”); Louise Doswald-Beck, Vessels, Aircraft
and Persons Entitled to Protection During Armed Conflicts at Sea, 65 BRITISH YEARBOOK OF INTERNATIONAL LAW
211, 219 (1994) (“The participants working on the San Remo Manual were of the opinion that hospital ships shouldbe allowed to use cryptographic equipment, with a specification that it must not be used for transmitting intelligenceor put to any other use incompatible with the humanitarian mission of the hospital ship. This could be verified by aqualified neutral observer on board as foreseen in Article 31(4) of GC2.”).
325

Refer to § 7.12.2.2 (No Use for Military Purposes); § 7.10.3.1 (Acts Harmful to the Enemy).

326

Refer to § 7.12.2.6 (Control and Search of Hospital Ships and Coastal Rescue Craft).

482

ships, and coastal rescue craft, respectively) shall be distinctively marked as follows:•

all exterior surfaces shall be white; and•one or more dark red crosses, as large as possible, shall be painted and displayed on eachside of the hull and on the horizontal surfaces, so placed as to afford the greatest possible
visibility from the sea and from the air. 327

7.12.3.1 Rules for Flying the National Flag, the Flag of the Party to the Conflict,and the Distinctive Emblem Flag. All hospital ships must make themselves known by hoisting
their national flag and, further, if they belong to a neutral State, the flag of the party to theconflict whose direction they have accepted. 328 A white flag with a red cross shall be flown at
the mainmast as high as possible. 329
Hospital ships that, in accordance with Article 31 of the GWS-Sea, are provisionallydetained by the enemy, must haul down the flag of the party to the conflict in whose service they
are or whose direction they have accepted. 330
Coastal lifeboats, if they continue to operate with the consent of the Occupying Powerfrom a base that is occupied, may be allowed, when away from their base, to continue to fly theirown national colors along with a flag carrying a red cross on a white ground, subject to priornotification to all the parties to the conflict concerned. 331
7.12.3.2 Lifeboats and All Small Craft Used by the Medical Service. Lifeboats of
hospital ships, coastal lifeboats, and all small craft used by the Medical Service shall be painted
white with dark red crosses prominently displayed and shall, in general, comply with theidentification system prescribed above for hospital ships. 332
7.12.3.3 Night-Time Identification Measures. The above-mentioned ships and
327

GWS-SEA art. 43 (“The ships designated in Articles 22, 24, 25 and 27 shall be distinctively marked as follows:(a) All exterior surfaces shall be white. (b) One or more dark red crosses, as large as possible, shall be painted anddisplayed on each side of the hull and on the horizontal surfaces, so placed as to afford the greatest possible
visibility from the sea and from the air.”).
328

GWS-SEA art. 43 (“All hospital ships shall make themselves known by hoisting their national flag and further, if
they belong to a neutral state, the flag of the Party to the conflict whose direction they have accepted.”).

329

GWS-SEA art. 43 (“A white flag with a red cross shall be flown at the mainmast as high as possible.”).

330

GWS-SEA art. 43 (“Hospital ships which, in accordance with Article 31, are provisionally detained by the enemy,
must haul down the flag of the Party to the conflict in whose service they are or whose direction they haveaccepted.”).
331

GWS-SEA art. 43 (“Coastal lifeboats, if they continue to operate with the consent of the Occupying Power from abase which is occupied, may be allowed, when away from their base, to continue to fly their own national colours
along with a flag carrying a red cross on a white ground, subject to prior notification to all the Parties to the conflictconcerned.”).
332
GWS-SEA art. 43 (“Lifeboats of hospital ships, coastal lifeboats and all small craft used by the Medical Service
shall be painted white with dark red crosses prominently displayed and shall, in general, comply with theidentification system prescribed above for hospital ships.”).

483

craft, which may wish to ensure by night and in times of reduced visibility the protection towhich they are entitled, must, subject to the assent of the party to the conflict under whose power
they are, take the necessary measures to render their painting and distinctive emblems
sufficiently apparent. 333
7.12.3.4 Other Emblems Instead of the Red Cross. All the provisions in Article
43 of the GWS-Sea relating to the red cross apply equally to the other emblems mentioned in
Article 41 of the GWS-Sea. 334
The distinctive emblem of the red crystal also may be used for the same purposes as the
red cross. 335
7.12.3.5 Agreements to Facilitate the Identification of Hospital Ships. Parties tothe conflict shall at all times endeavor to conclude mutual agreements in order to use the mostmodern methods available to facilitate the identification of hospital ships. 336
7.12.4 Rights and Privileges of Hospital Ships and Coastal Rescue Craft. Militaryhospital ships, commissioned civilian hospital ships, and authorized neutral civilian hospital
ships that meet the applicable requirements shall be respected and protected and are exempt from
capture. Coastal rescue craft shall also be respected and protected so far as operational
requirements permit.
In addition, the following protections apply:
7.12.4.1 Protection From Attacks From Land. Hospital ships entitled to theprotection of the GWS-Sea shall not be attacked from land. 337
7.12.4.2 Authority to Leave Ports Held by the Enemy. Any hospital ship in a portthat falls into the hands of the enemy shall be authorized to leave that port. 338
7.12.4.3 Relief From Taxation in Time of War. In time of war, military hospital
ships, commissioned civilian hospital ships, and authorized neutral civilian hospital ships are333

GWS-SEA art. 43 (“The above-mentioned ships and craft, which may wish to ensure by night and in times of
reduced visibility the protection to which they are entitled, must, subject to the assent of the Party to the conflict
under whose power they are, take the necessary measures to render their painting and distinctive emblems
sufficiently apparent.”).
334

GWS-SEA art. 43 (“All the provisions in this Article relating to the red cross shall apply equally to the otheremblems mentioned in Article 41.”).
335

Refer to § 7.15.1.3 (Red Crystal).

336

GWS-SEA art. 43 (“Parties to the conflict shall at all times endeavour to conclude mutual agreements in order to
use the most modern methods available to facilitate the identification of hospital ships.”).
337

GWS art. 20 (“Hospital ships entitled to the protection of the Geneva Convention for the Amelioration of theCondition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949, shall not be
attacked from the land.”).
338

GWS-SEA art. 29 (“Any hospital ship in a port which falls into the hands of the enemy shall be authorized toleave the said port.”).

484

exempt from all dues and taxes imposed for the benefit of the State in the ports of the Parties to aparticular 1904 Hague treaty. Article 1 of this 1904 Hague treaty provides that certain categories
of hospital ships listed in an 1899 Hague treaty receive this benefit. 339 These categories of
hospital ships listed in the 1899 Hague treaty are the same categories of hospital ships that areused in the GWS-Sea. 340 Some States may be Parties to the GWS-Sea but not to the 1904 Hague
treaty that creates this exemption.
7.12.4.4 Stay in Neutral Ports. Vessels described in Articles 22, 24, 25, and 27 of
the GWS-Sea (i.e., military hospital ships, commissioned civilian hospital ships, authorized
neutral civilian hospital ships, and coastal rescue craft, respectively), are not classed as warships
as regards their stay in a neutral port. 341 Thus, these vessels are not subject to the restrictions
that belligerent warships staying in a neutral port are subject to by neutral Powers. 342
7.12.5 Protection of Sick-Bays in Warships. Should fighting occur on board a warship,
the sick-bays shall be respected and spared as far as possible. 343
7.12.5.1 Use of Seized Sick-Bays and Their Equipment. Sick-bays and theirequipment shall remain subject to the laws of warfare, but may not be diverted from their
purpose so long as they are required for the wounded and sick. 344 Nevertheless, the commander
into whose power they have fallen may, after ensuring the proper care of the wounded and sick
who are accommodated therein, apply them to other purposes in case of urgent military339

Convention Regarding Hospital Ships, art. 1, Dec. 21, 1904, 35 STAT. 1854, 1857 (“Hospital ships, concerningwhich the conditions set forth in Articles 1, 2 & 3 of the Convention concluded at The Hague on July 29, 1899, forthe adaptation to Maritime Warfare of the principles of the Geneva Convention of August 22, 1864, are fulfilledshall be exempted, in time of war, from all dues and taxes imposed on vessels for the benefit of the State, in theports of the Contracting Parties.”).

340

See Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of August22, 1864, arts. 1-3, Jul. 29, 1899, 32 STAT. 1827, 1831-32 (“Article 1 Military hospital ships, that is to say, ships
constructed or assigned by States specially and solely for the purpose of assisting the wounded, sick or shipwrecked,
and the names of which shall have been communicated to the belligerent Powers at the beginning or during thecourse of hostilities, and in any case before they are employed, shall be respected and cannot be captured while
hostilities last. … Article 2 Hospital ships, equipped wholly or in part at the cost of private individuals or officiallyrecognized relief Societies, shall likewise be respected and exempt from capture, provided the belligerent Power towhom they belong has given them an official commission and has notified their names to the hostile Power at thecommencement of or during hostilities, and in any case before they are employed. … Article 3 Hospital-ships,
equipped wholly or in part at the cost of private individuals or officially recognized Societies of neutral countries,
shall be respected and exempt from capture, if the neutral Power to whom they belong has given them an official
commission and notified their names to the belligerent powers at the commencement of or during hostilities, and inany case before they are employed.”).
341

GWS-SEA art. 32 (“Vessels described in Articles 22, 24, 25 and 27 are not classed as warships as regards theirstay in a neutral port.”).
342

Refer to § 15.9 (Additional Rules Applicable to Neutral Ports, Roadsteads, and Internal Waters).

343

GWS-SEA art. 28 (“Should fighting occur on board a warship, the sick-bays shall be respected and spared as far
as possible.”).

344

GWS-SEA art. 28 (“Sick-bays and their equipment shall remain subject to the laws of warfare, but may not bediverted from their purpose so long as they are required for the wounded and sick.”).

485

necessity. 345
7.12.6 Forfeiture of Protection of Hospital Ships and Sick Bays. The protection to which
hospital ships and sick-bays are entitled shall not cease unless the vessels are used to commit,
outside their humanitarian duties, acts harmful to the enemy. 346 In particular, hospital ships andcoastal rescue craft may not be used for military purposes nor to hamper the movements of
combatants. 347
7.12.6.1 Due Warning Before Cessation of Protection. Protection may, however,cease only after due warning has been given, naming in all appropriate cases a reasonable time
limit, and after such warning has remained unheeded. 348
The obligation to refrain from use of force against a medical vessel or sick-bay acting inviolation of its mission and protected status without due warning does not prohibit the exerciseof the right of self-defense. There may be cases in which, in the exercise of the right of selfdefense, a warning is not “due” or a reasonable time limit is not appropriate. For example, forces
receiving heavy fire may exercise their right of self-defense and return fire. Such use of force inself-defense must also be proportionate. 349
7.12.6.2 Conditions That Do Not Deprive Hospital Ships and Sick-Bays of Vesselsof Their Protection. The following conditions shall not be considered as depriving hospital ships
or sick-bays of vessels of the protection due to them:•

the fact that the crews of ships or sick-bays are armed for the maintenance of order, fortheir own defense, or for the defense of the sick and wounded;•

the presence on board of apparatus exclusively intended to facilitate navigation orcommunication;•

the discovery on board hospital ships or in sick-bays of portable arms and ammunition
taken from the wounded, sick, and shipwrecked, and not yet handed over to the proper
service;•the fact that the humanitarian activities of hospital ships and sick-bays of vessels or of thecrews extend to the care of wounded, sick, or shipwrecked civilians; and•the transport of equipment and of personnel intended exclusively for medical duties, over345

GWS-SEA art. 28 (“Nevertheless, the commander into whose power they have fallen may, after ensuring theproper care of the wounded and sick who are accommodated therein, apply them to other purposes in case of urgent
military necessity.”).
346

GWS-SEA art. 34 (“The protection to which hospital ships and sick-bays are entitled shall not cease unless they
are used to commit, outside their humanitarian duties, acts harmful to the enemy.”).
347

Refer to § 7.12.2.2 (No Use for Military Purposes); § 7.12.2.3 (No Hampering the Movement of Combatants).

348

GWS-SEA art. 34 (“Protection may, however, cease only after due warning has been given, naming in all
appropriate cases a reasonable time limit, and after such warning has remained unheeded.”).
349

Compare § 7.10.3.2 (Due Warning Before Cessation of Protection).

486

and above the normal requirements. 350
7.12.6.3 Arming of Hospital Ships and Equipping Them With Defensive Devices.
The GWS-Sea contemplates that the crews of hospital ships may be armed and does not
specifically restrict the weapons that they may have.
The crews of hospital ships may be armed to the extent necessary to enable them todefend themselves or their patients against unlawful attacks. Such arming is viewed asconsistent with the ship’s humanitarian purpose and the crew’s duty to safeguard the wounded
and sick. For example, crews of hospital ships may be equipped with weapons to meet internal
security needs, to maintain discipline, to protect staff and patients from criminal threats ofviolence, and to prevent the theft of medical supplies. The type of weapon that is necessary for
defensive or other legitimate purposes may depend on the nature of the threats against thehospital ship. 351 For example, hospital ships may be armed with defensive weapon systems,
including when necessary certain crew-served weapons, as a prudent anti-terrorism/force
protection (AT/FP) measure to defend against small boat attacks. 352 On the other hand, crews of
hospital ships should not be armed such that they would appear to an enemy military force topresent an offensive threat.
Equipping hospital ships with other defensive devices – such as chaff for protection
against over-the-horizon weapons or similar threats – is not prohibited. 353 However, suchdevices, like weapons, must not be used to commit acts harmful to enemy military forces acting
in conformity with the law of war. 354

350

GWS-SEA art. 35 (“The following conditions shall not be considered as depriving hospital ships or sick-bays ofvessels of the protection due to them: (1) The fact that the crews of ships or sick-bays are armed for the
maintenance of order, for their own defence or that of the sick and wounded. (2) The presence on board ofapparatus exclusively intended to facilitate navigation or communication. (3) The discovery on board hospital ships
or in sick-bays of portable arms and ammunition taken from the wounded, sick and shipwrecked and not yet handed
to the proper service. (4) The fact that the humanitarian activities of hospital ships and sick-bays of vessels or of thecrews extend to the care of wounded, sick or shipwrecked civilians. (5) The transport of equipment and of personnel
intended exclusively for medical duties, over and above the normal requirements.”).
351

For example, Michael Sirak, US Navy seeks to revise laws of war on hospital ships, Jane’s Defense Weekly 1-3(Aug. 19, 2003) (“The USN installed both encrypted communications devices and 50-cal machine guns on the
USNS Comfort (T-AH 20), one of its two dedicated hospital ships, before it deployed in January to the Middle East
theatre to support the US-led Operation ‘Iraqi Freedom’, a US Department of Defense spokesman told Jane’s
Defence Weekly. … Furthermore, USN officials say the small arms currently allowed on hospital ships, such assidearms and rifles, are not enough to thwart an attack by a non-state actor like a terrorist group. They say thelimited protection afforded to these vessels under international law would be unlikely to deter terrorists and, unlike
lawful belligerents, terrorists would consider them an attractive ‘soft’ target. Therefore, they argue that it isnecessary to place ‘crew-served’ weapons like 30-cal and 50-cal machine guns on them, exclusively for defence, tofend off attacks by swarming, heavily armed speed boats or suicide craft.”).
352

Jane G. Dalton, Future Navies – Present Issues, 59 NAVAL WAR COLLEGE REVIEW 17, 27 (Winter 2006) (notingthat a problem “facing hospital ships is the need to arm them for force protection against USS Cole-type attacks” andthat “chaff and flares [would be] ineffective against a determined suicide attack like that launched against Cole,”).
353

See 2004 UK MANUAL ¶13.124 (“Hospital ships may be equipped with purely deflective means of defence, suchas chaff and flares.”).
354

Refer to § 7.12.6 (Forfeiture of Protection of Hospital Ships and Sick Bays).

487

7.13 CHARTERED MEDICAL TRANSPORT SHIPS
Ships chartered for medical transport purposes shall be authorized to transport equipment
exclusively intended for the treatment of wounded and sick members of armed forces or for theprevention of disease, provided that the particulars regarding their voyage have been notified tothe adverse Power and approved by the latter. 355 The adverse Power shall preserve the right toboard the carrier ships, but not to capture them or seize the equipment carried. 356
7.13.1 Agreement to Place Neutral Observers on Chartered Medical Transports. By
agreement among the parties to the conflict, neutral observers may be placed on board such ships
to verify the equipment carried. 357 For this purpose, free access to the equipment shall begiven. 358
7.14 MILITARY MEDICAL AIRCRAFT
Medical aircraft – that is to say, aircraft exclusively employed for the removal of thewounded, sick, and shipwrecked, and for the transport of medical personnel and equipment –shall not be attacked, but shall be respected by the belligerents, while flying at heights and times,
and on routes, specifically agreed upon by the belligerents concerned. 359
7.14.1 Medical Aircraft Not Flying at Heights and Times and on Routes SpecificallyAgreed Upon by Belligerents Concerned. The use of protected medical aircraft generally
depends on an agreement between the belligerents. 360
However, known medical aircraft, when performing their humanitarian functions, must
355

GWS-SEA art. 38 (“Ships chartered for that purpose shall be authorized to transport equipment exclusively
intended for the treatment of wounded and sick members of armed forces or for the prevention of disease, provided
that the particulars regarding their voyage have been notified to the adverse Power and approved by the latter.”).
356

GWS-SEA art. 38 (“The adverse Power shall preserve the right to board the carrier ships, but not to capture themor seize the equipment carried.”).
357

GWS-SEA art. 38 (“By agreement amongst the Parties to the conflict, neutral observers may be placed on board
such ships to verify the equipment carried.”).
358

GWS-SEA art. 38 (“For this purpose, free access to the equipment shall be given.”).

359

GWS art. 36 (“Medical aircraft, that is to say, aircraft exclusively employed for the removal of wounded and sickand for the transport of medical personnel and equipment, shall not be attacked, but shall be respected by the
belligerents, while flying at heights, times and on routes specifically agreed upon between the belligerents
concerned.”); GWS-SEA art. 39 (“Medical aircraft, that is to say, aircraft exclusively employed for the removal of
the wounded, sick and shipwrecked, and for the transport of medical personnel and equipment, may not be the objectof attack, but shall be respected by the Parties to the conflict, while flying at heights, at times and on routes
specifically agreed upon between the Parties to the conflict concerned.”).
360

GWS-SEA COMMENTARY 216-17 (“The solution adopted makes any future use of protected medical aircraft
dependent on the conclusion of an agreement between the belligerents. As it will be a matter of fixing routes andtimes of flights, such agreements will no doubt usually be made for each specific case and by a simple exchange ofcommunications between the military commands. But there might also be an agreement of longer duration. If there
is no agreement, belligerents will be able to use medical aircraft only at their own risk. It is, however, to be hopedthat in such cases the enemy will not resort to extreme measures until he has exhausted all other means of control at
his disposal.”).

488

be respected and protected. 361 Such aircraft does not constitute a military objective that is liable
to being made the object of attack. 362 Thus, even if not flying pursuant to an agreement, suchaircraft shall not be deliberately attacked or fired upon, if identified as protected medical aircraft.
For example, if there is no agreement and a military force happens upon a medical aircraft
belonging to an enemy State, the aircraft must not be made the object of attack until all othermeans of control (such as directing the aircraft to land and submit to search) have been
exhausted. 363
A medical aircraft that is not flying pursuant to a special agreement that seeks to claim
protection as medical aircraft shall make every effort to identify itself and to inform the enemy
State of its status and its operations, such as its flight times and routes. 364 For example, an
unknown aircraft within a theater of military operations would often be reasonably presumed to
be a military objective, and the aircraft must take affirmative steps to rebut this presumption. 365
In order to maintain its entitlement to protection, such aircraft must obey the directions of theenemy State, such as directions to land and to submit to search.
7.14.2 Exclusively Employed for the Removal of the Wounded, Sick, or Shipwrecked,
and for the Transport of Medical Personnel and Equipment. In order to receive protection as
medical aircraft, the aircraft must be exclusively employed for the removal of wounded, sick, or
shipwrecked combatants and for the transport of medical personnel and equipment.
For example, such aircraft, while designated or operating as medical aircraft, may not be
used also for military purposes, such as to transport able-bodied combatants or to carry

361

Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on the
Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the
Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 423-24 (1987) (“Wesupport the principle that known medical aircraft be respected and protected when performing their humanitarianfunctions. That is a rather general statement of what is reflected in many, but not all, aspects of the detailed rules inarticles 24 through 31, which include some of the more useful innovations in the Protocol.”).
362

Refer to § 5.6.4.1 (Military Equipment and Bases).

363

1976 AIR FORCE PAMPHLET 110-31 (“Generally, a medical aircraft (identified as such) should not be attacked
unless under the circumstances at the time it represents an immediate military threat and other methods of control
are not available.”).
364

Consider AP I art. 27(2) (“A medical aircraft which flies over an area physically controlled by an adverse Party
without, or in deviation from the terms of, an agreement provided for in paragraph 1, either through navigational
error or because of an emergency affecting the safety of the flight, shall make every effort to identify itself and to
inform the adverse Party of the circumstances. As soon as such medical aircraft has been recognized by the adverse
Party, that Party shall make all reasonable efforts to give the order to land or to alight on water, referred to in Article
30, paragraph 1, or to take other measures to safeguard its own interests, and, in either case, to allow the aircraft
time for compliance, before resorting to an attack against the aircraft”).
365

Cf. BOTHE, PARTSCH, & SOLF, NEW RULES 155 (AP I art. 27, ¶2.2) (“The question then arises whether an aircraft
which is operating without such agreement (or in deviation from the terms of such agreement) is a legitimate target,a military objective within the meaning of Art. 52, para. 2. Article 27, para. 2, is based on the (correct) assumptionthat it is, even if it is a true medical aircraft. … An aircraft flying over areas controlled by an adverse Party is, incase of doubt, a military objective. Anything else is unrealistic.”).

489

ammunition to combat forces. 366
7.14.2.1 Conversion of Aircraft To and From Use Under a Special Agreement for
Medical Purposes. If medical aircraft are flying pursuant to an agreement, it is not necessarythat the aircraft should have been specially built and equipped for medical purposes. 367 There isno objection to converting ordinary aircraft into medical aircraft for use under a special
agreement or to using medical aircraft that have been used under a special agreement for otherpurposes, provided the distinctive markings are removed. 368
7.14.2.2 Search, Rescue, or Other Recovery Excluded. Medical aircraft may
engage in the removal of wounded, sick, or shipwrecked combatants. However, medical aircraft
may neither prevent the capture of combatants by enemy military forces nor otherwise interferewith enemy military operations. 369 Therefore, medical aircraft do not include combat search andrescue aircraft, and medical aircraft should not engage in such activities lest they forfeit the
special protection afforded by the GWS or GWS-Sea. 370 Special agreements between the
opposing forces, however, may provide protection to aircraft engaged in search, rescue, or otherrecovery missions.
7.14.3 Markings on Medical Aircraft. Medical aircraft shall bear, clearly marked, thedistinctive emblem (prescribed in Article 38 of the GWS and Article 41 of the GWS-Sea),
together with their national colors, on their lower, upper, and lateral surfaces. 371

366

Compare § 7.12.2.2 (No Use for Military Purposes). For example, First Lieutenant Edward R. Cummings, The
Juridical Status of Medical Aircraft Under the Conventional Laws of War, 66 MILITARY LAW REVIEW 105, 115(1974) (“It has been said that during the Second World War ‘Article 18 [of the 1929 GWS] was … more or less adead letter,’ even though air evacuation flights were used extensively during the war. One and a half million
Americans alone were evacuated by air during the war. The United States primarily used aircraft that were not
devoted exclusively to the care or the wounded and sick. It was able to do so because of its air supremacy. Even
though these aircraft would not have been entitled to juridical protection under the 1929 Geneva Convention, noneof the aircraft used to convey casualties ‘suffered any mishap during the war.’”) (ellipsis in original).
367

1956 FM 27-10 (Change No. 1 1976) ¶237b (“It is not necessary that the aircraft should have been specially built
and equipped for medical purposes.”).
368

1956 FM 27-10 (Change No. 1 1976) ¶237b (“There is no objection to converting ordinary aircraft into medical
aircraft or to using former medical aircraft for other purposes, provided the distinctive markings are removed.”).
369

Compare § 7.12.2.3 (No Hampering the Movement of Combatants); § 4.9.2.3 (Exclusively Engaged in
Humanitarian Duties).
370

XI OFFICIAL RECORDS OF THE CDDH 503 (CDDH/II/SR.45, ¶10) (“Mr. SOLF (United States of America)
recalled that 105 years previously, 160 wounded soldiers of France had been successfully evacuated from besieged
Paris by balloon, thus for the first time making rapid medical evacuation by air a reality. It was an undisputed
medical fact that the sooner a badly wounded person came under a surgeon’s care, the better were his chances ofrecovery and survival. It was also recognized as an undisputed military fact that medical aircraft posed a security
threat if they were used for military reconnaissance. Accordingly, throughout the history of the development of
medical aircraft, their role in the search of the battlefield for wounded had been restricted.”). Consider AP I art.
28(4) (“While carrying out the flights referred to in Articles 26 and 27, medical aircraft shall not, except by prioragreement with the adverse Party, be used to search for the wounded, sick and shipwrecked.”).
371

GWS art. 36 (“They shall bear, clearly marked, the distinctive emblem prescribed in Article 38, together with
their national colours, on their lower, upper and lateral surfaces.”); GWS-SEA art. 39 (“They shall be clearly marked

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They shall be provided with any other markings or means of identification that may be
agreed upon between the belligerents upon the outbreak or during the course of hostilities. 372
7.14.4 Prohibition on Flights Over Enemy or Enemy-Occupied Territory. Unlessotherwise agreed, flights over enemy or enemy-occupied territory are prohibited. 373 If flying
pursuant to an agreement, however, medical aircraft are to receive protection when flying overenemy or enemy-occupied territory. 374
7.14.5 Landing and Inspection of Military Medical Aircraft. Medical aircraft shall obey
every summons to land (including water landings if the aircraft is equipped for them). 375 In theevent of a landing thus imposed, the aircraft with its occupants may continue its flight after
examination, if any. 376
7.14.5.1 Treatment of Personnel in the Event of Involuntary Landing in Enemy or
Enemy-Occupied Territory. In the event of an involuntary landing in enemy or enemy-occupied
territory (including a water landing), the wounded and sick, as well as the crew of the aircraft,shall be POWs. 377 The medical personnel shall be treated according to Article 24 and the
Articles following of the GWS, and Articles 36 and 37 of the GWS-Sea. 378
7.14.6 Belligerent Military Medical Aircraft in Neutral Territory. Subject to conditions
set by the neutral Powers, medical aircraft of parties to the conflict may fly over the territory ofneutral Powers, land on it in case of necessity, or use it as a port of call. 379 They shall givewith the distinctive emblem prescribed in Article 41, together with their national colours, on their lower, upper andlateral surfaces.”).
372

GWS art. 36 (“They shall be provided with any other markings or means of identification that may be agreed
upon between the belligerents upon the outbreak or during the course of hostilities.”); GWS-SEA art. 39 (“They shallbe provided with any other markings or means of identification which may be agreed upon between the Parties tothe conflict upon the outbreak or during the course of hostilities.”).
373

GWS art. 36 (“Unless agreed otherwise, flights over enemy or enemy-occupied territory are prohibited.”); GWSSEA art. 39 (same).

374

Consider AP I art. 27 (1) (“The medical aircraft of a Party to the conflict shall continue to be protected while
flying over land or sea areas physically controlled by an adverse Party, provided that prior agreement to such flights
has been obtained from the competent authority of that adverse Party.”).
375

GWS art. 36 (“Medical aircraft shall obey every summons to land.”); GWS-SEA art. 39 (“Medical aircraft shallobey every summons to alight on land or water.”).
376

GWS art. 36 (“In the event of a landing thus imposed, the aircraft with its occupants may continue its flight after
examination, if any.”); GWS-SEA art. 39 (“In the event of having thus to alight, the aircraft with its occupants may
continue its flight after examination, if any.”).
377

GWS art. 36 (“In the event of an involuntary landing in enemy or enemy-occupied territory, the wounded andsick, as well as the crew of the aircraft shall be prisoners of war.”); GWS-SEA art. 39 (“In the event of alighting
involuntarily on land or water in enemy or enemy occupied territory, the wounded, sick and shipwrecked, as well as
the crew of the aircraft shall be prisoners of war.”).
378

GWS art. 36 (“The medical personnel shall be treated according to Article 24 and the Articles following.”);
GWS-SEA art. 39 (“The medical personnel shall be treated according to Articles 36 and 37.”).
379

GWS art. 37 (“Subject to the provisions of the second paragraph, medical aircraft of Parties to the conflict may
fly over the territory of neutral Powers, land on it in case of necessity, or use it as a port of call.”); GWS-SEA art. 40491

neutral Powers prior notice of their passage over the said territory, and obey every summons toalight, on land or water. 380 They will be immune from attack only when flying on routes, atheights, and at times specifically agreed upon between the parties to the conflict and the neutral
Power concerned. 381
7.14.6.1 Conditions Set by Neutral Powers. The neutral Powers may, however,place conditions or restrictions on the passage or landing of medical aircraft on their territory. 382
Such possible conditions or restrictions shall be applied equally to all parties to the conflict. 383
7.14.6.2 Detention of the Wounded, Sick, or Shipwrecked. Unless otherwise
agreed between the neutral Powers and the parties to the conflict, the wounded, sick, or
shipwrecked who are disembarked with the consent of the local authorities on neutral territory by
medical aircraft shall be detained by the neutral Power, where so required by international law,in such a manner that they cannot again take part in operations of war. 384 The cost of theiraccommodation and internment shall be borne by the Power on which they depend. 385
7.15 DISPLAY OF THE DISTINCTIVE EMBLEM TO FACILITATE IDENTIFICATIONThe GWS and GWS-Sea contemplate that the distinctive emblem, usually a red cross ona white background, will be used to facilitate the identification of the persons and objects
protected by the GWS and GWS-Sea. 386 It helps identify protected persons and objects (e.g.,
medical and religious personnel, medical transports, and medical facilities), but does not itself
confer on them, or by its absence deprive them of, legal protection. The use of the distinctive
emblem to facilitate protection is to take place under the direction of the competent military(“Subject to the provisions of the second paragraph, medical aircraft of Parties to the conflict may fly over the
territory of neutral Powers, land thereon in case of necessity, or use it as a port of call.”).
380

GWS art. 37 (“They shall give the neutral Powers previous notice of their passage over the said territory andobey all summons to alight, on land or water.”); GWS-SEA art. 40 (“They shall give neutral Powers prior notice of
their passage over the said territory, and obey every summons to alight, on land or water.”).
381

GWS art. 37 (“They will be immune from attack only when flying on routes, at heights and at times specificallyagreed upon between the Parties to the conflict and the neutral Power concerned.”); GWS-SEA art. 40 (same).
382

GWS art. 37 (“The neutral Powers may, however, place conditions or restrictions on the passage or landing of
medical aircraft on their territory.”); GWS-SEA art. 40 (same).
383

GWS art. 37 (“Such possible conditions or restrictions shall be applied equally to all Parties to the conflict.”);GWS-SEA art. 40 (same).
384

GWS art. 37 (“Unless agreed otherwise between the neutral Power and the Parties to the conflict, the wounded
and sick who are disembarked, with the consent of the local authorities, on neutral territory by medical aircraft, shallbe detained by the neutral Power, where so required by international law, in such a manner that they cannot again
take part in operations of war.”); GWS-SEA art. 40 (“Unless otherwise agreed between the neutral Powers and theParties to the conflict, the wounded, sick or shipwrecked who are disembarked with the consent of the local
authorities on neutral territory by medical aircraft shall be detained by the neutral Power, where so required byinternational law, in such a manner that they cannot again take part in operations of war.”).
385

GWS art. 37 (“The cost of their accommodation and internment shall be borne by the Power on which they
depend.”); GWS-SEA art. 40 (same).
386

See GWS-SEA COMMENTARY 235 (“In principle, a red cross on a white ground should be displayed on thebuildings, persons, vehicles and objects protected by the Convention.”).

492

authority. The misuse of the distinctive emblem is prohibited.
7.15.1 The Distinctive Emblems: Red Cross, Crescent, and Crystal. To facilitate visual
identification of medical and religious personnel, and medical units, facilities, transports, andequipment, four distinctive emblems have been recognized in treaties to which the United States
is a Party. As displayed below, they are 1) a red cross; 2) a red crescent; 3) a red crystal; and 4)
a red lion and sun. Each is displayed on a white background.
The Distinctive Emblems

Red Cross

Red Crescent

Red Crystal

Red Lion and Sun (withdrawn)

7.15.1.1 Red Cross. “As a compliment to Switzerland,” the heraldic emblem of
the red cross on a white ground formed by reversing the Federal colors is retained as the emblem
and distinctive sign of the Medical Services of armed forces. 387 The explanation that the redcross is used as a compliment to Switzerland was added to emphasize that the red cross is notintended to have religious significance. 388 The red cross has long been used to identify medical
personnel during armed conflict. 389
7.15.1.2 Red Crescent, and Red Lion and Sun. In the case of countries that
already use, in place of the red cross, the emblem of the red crescent or the emblem of the redlion and sun on a white ground, those emblems are also recognized by the terms of the GWS and
GWS-Sea. 390

387

GWS art. 38 (“As a compliment to Switzerland, the heraldic emblem of the red cross on a white ground formedby reversing the Federal colours, is retained as the emblem and distinctive sign of the Medical Services of armed
forces.”).
388

GWS COMMENTARY 303 (“The phrase stating that the red cross emblem was formed, as a compliment to
Switzerland, by reversing the Federal colours was introduced into the Geneva Convention by the Diplomatic
Conference of 1906. ‘This tribute in 1906’, wrote Paul Des Gouttes, the eminent commentator on the Geneva
Convention, ‘had also another object: to confirm officially and explicitly that the emblem had no religious
significance’.”). See also AP III preamble (“Stressing that the distinctive emblems are not intended to have any
religious, ethnic, racial, regional or political significance,”).
389

See, e.g., Convention for the Amelioration of the Wounded in Armies in the Field, art. 7, Aug. 22, 1864, 22
STAT. 940, 944 (“A distinctive and uniform flag shall be adopted for hospitals, ambulances and evacuations. It
must, on every occasion, be accompanied by the national flag. An arm-badge (brassard) shall also be allowed forindividuals neutralized, but the delivery thereof shall be left to military authority. The flag and arm-badge shall beara red cross on a white ground.”).
390

GWS art. 38 (“Nevertheless, in the case of countries which already use as emblem, in place of the red cross, thered crescent or the red lion and sun on a white ground, those emblems are also recognized by the terms of the493

7.15.1.3 Red Crystal. AP III recognizes an additional distinctive emblem in
addition to, and for the same purposes as, the distinctive emblems of the Geneva Conventions,which, for parties to AP III, shall enjoy equal status to the other emblems. 391
This additional distinctive emblem, composed of a red frame in the shape of a square onedge on a white ground, shall conform to the illustration in the Annex to AP III. 392
This distinctive emblem is referred to in AP III as the “third Protocol emblem” 393 but isoften called the red crystal.
The conditions for use of and respect for the third Protocol emblem are identical to thosefor the distinctive emblems established by the 1949 Geneva Conventions and, where applicable,
AP I and AP II. 394
AP III further provides for use of the Red Crystal for indicative purposes by nationalsocieties of the Parties to AP III. Such uses for indicative purposes by national societies are usesof the red crystal that do not indicate protection under the AP III, the GWS, or the GWS-Sea, butthat indicate an association with the Red Cross movement. 395
7.15.1.4 State Discretion Among Emblems. Although the GWS contemplates thatthe emblem of the red crescent and the emblem of the red sun and lion will be used only in Statesthat already used them before ratifying the 1949 Geneva Conventions, AP III provides that thepresent Convention.”); GWS-SEA art. 41 (“Nevertheless, in the case of countries which already use as emblem, inplace of the red cross, the red crescent or the red lion and sun on a white ground, these emblems are also recognizedby the terms of the present Convention.”).
391

AP III art. 2(1) (“This Protocol recognizes an additional distinctive emblem in addition to, and for the same
purposes as, the distinctive emblems of the Geneva Conventions. The distinctive emblems shall enjoy equal
status.”).
392

AP III art. 2(2) (“This additional distinctive emblem, composed of a red frame in the shape of a square on edge
on a white ground, shall conform to the illustration in the Annex to this Protocol.”).
393

AP III art. 2(2) (“This distinctive emblem is referred to in this Protocol as the ‘third Protocol emblem’.”).

394

AP III art. 2(3) (“The conditions for use of and respect for the third Protocol emblem are identical to those for the
distinctive emblems established by the Geneva Conventions and, where applicable, the 1977 Additional
Protocols.”).
395

AP III art. 3 (“1. National Societies of those High Contracting Parties which decide to use the third Protocol
emblem may, in using the emblem in conformity with relevant national legislation, choose to incorporate within it,
for indicative purposes: a) a distinctive emblem recognized by the Geneva Conventions or a combination of theseemblems; or b) another emblem which has been in effective use by a High Contracting Party and was the subject of
a communication to the other High Contracting Parties and the International Committee of the Red Cross throughthe depositary prior to the adoption of this Protocol. Incorporation shall conform to the illustration in the Annex tothis Protocol. 2. A National Society which chooses to incorporate within the third Protocol emblem another emblem
in accordance with paragraph 1 above, may, in conformity with national legislation, use the designation of thatemblem and display it within its national territory. 3. National Societies may, in accordance with national
legislation and in exceptional circumstances and to facilitate their work, make temporary use of the distinctive
emblem referred to in Article 2 of this Protocol. 4. This Article does not affect the legal status of the distinctive
emblems recognized in the Geneva Conventions and in this Protocol, nor does it affect the legal status of any
particular emblem when incorporated for indicative purposes in accordance with paragraph 1 of this Article.”).

494

distinctive emblems of the Geneva Conventions shall enjoy equal status. 396 In addition, AP III
provides that the medical services and religious personnel of armed forces of Parties to AP III
may, without prejudice to their current emblems, make temporary use of any distinctive emblems
where this may enhance protection. 397
Some States have adopted the red crescent, without objection by other States Parties,
even though their use of the red crescent did not predate the adoption of the GWS. 398 Israel
ratified the 1949 Geneva Conventions with the reservation that it will use a Red Shield of David
as its distinctive sign. 399
7.15.2 Control of Display by the Competent Military Authority. Under the direction of
the competent military authority, the emblem shall be displayed on the flags, armlets, and on all
equipment employed in the Medical Service. 400 For example, under military regulations,
helmets or vehicles used by the Medical Service might bear the distinctive emblem to facilitate

396

AP III art. 2(1) (“The distinctive emblems shall enjoy equal status.”).

397

AP III art. 2(4) (“The medical services and religious personnel of armed forces of High Contracting Parties may,without prejudice to their current emblems, make temporary use of any distinctive emblem referred to in paragraph
1 of this Article where this may enhance protection.”).
398

For example, H. Beer, Secretary General, League of Red Cross Societies, and J. Moreillon, Department of
Principles and Law, International Committee of the Red Cross, Adoption of the Red Crescent by the Islamic
Republic of Iran, Circular No. 72 (Nov. 5, 1980), reprinted in 20 INTERNATIONAL REVIEW OF THE RED CROSS, 31617 (1980) (“On 4 July 1980 the Islamic Republic of Iran informed the International Committee of the Red Cross andthe League of Red Cross Societies of its decision to adopt the red crescent instead of the red lion and sun as thedistinctive sign of its armed forces' medical service. … On 4 September the Iranian Authorities notified the Swiss
Government, the depositary of the Geneva Conventions, of the adoption by the Islamic Republic of Iran of the red
crescent, and asked it to convey its decision to the States parties to the Geneva Conventions. This the Swiss
Government did on 20 October.”).
399

See Israel, Statement on Signature of the GWS, Aug. 12, 1949, 75 UNTS 436 (“Subject to the reservation that,while respecting the inviolability of the distinctive signs and emblems of the Convention, Israel will use the Red
Shield of David as the emblem and distinctive sign of the medical services of her armed forces.”); Israel, Statementon Ratification of the GWS, Jul. 6, 1952, 96 UNTS 323 (“The instrument confirms the reservations made by Israel
upon signature of the Convention.”); Israel, Statement on Signature of the GWS-Sea, Aug. 12, 1949, 75 UNTS 438(“Subject to the reservation that, while respecting the inviolability of the distinctive signs and emblems of theConvention, Israel will use the Red Shield of David on the flags, armlets and on all equipment (including hospital
ships), employed in the medical service.”); Israel, Statement on Ratification of the GWS-Sea, 96 UNTS 324 (Jul. 6,
1952) (“The instrument confirms the reservations made by Israel upon signature of the Convention.”); Israel,Statement on Signature of the GC, Aug. 12, 1949, 75 UNTS 438 (“Subject to the reservation that, while respecting
the inviolability of the distinctive signs and emblems provided for in Article 38 of the Geneva Convention for the
Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, Israel
will use the Red Shield of David as the emblem and distinctive sign provided for in this Convention.”); Israel,Statement on Ratification of the GC, Jul. 6, 1952, 96 UNTS 326 (“The instrument confirms the reservations made byIsrael upon signature of the Convention.”).

400

GWS art. 39 (“Under the direction of the competent military authority, the emblem shall be displayed on theflags, armlets and on all equipment employed in the Medical Service.”); GWS-SEA art. 41 (“Under the direction of
the competent military authority, the emblem of the red cross on a white ground shall be displayed on the flags,
armlets and on all equipment employed in the Medical Service.”).

495

the respect and protection of medical personnel by the enemy. 401
7.15.2.1 Removal or Obscuration of the Distinctive Emblem. The display of the
distinctive emblem is under the direction of the competent military authority. 402 Thus, themilitary command may authorize the removal or obscuring of the distinctive emblem for tactical
purposes, such as camouflage. 403 Similarly, it would be appropriate for the distinctive emblem
to be removed if it is assessed that enemy forces will fail to respect the emblem and seek toattack medical personnel; display of the emblem in such circumstances would not be considered“feasible” because in that instance it would not result in a humanitarian benefit. 404
In the practice of the United States, removal or obscuration of the distinctive emblem has
generally been controlled by the responsible major tactical commander, such as a brigade
commander or higher. 405
7.15.3 Significance of the Display of the Distinctive Emblem.
7.15.3.1 Distinctive Emblem Facilitates Protection. The purpose of the display ofthe distinctive emblem is to facilitate the identification of protected status. 406 The absence of the401

Consider AP I Amended Annex I art. 5(4) (“Medical and religious personnel carrying out their duties in the battle
area shall, as far as possible, wear headgear and clothing bearing the distinctive emblem.”).
402

GWS-SEA COMMENTARY 230 (“The initial phrase of the present Article is most important: use of the emblem is
to be ‘under the direction of the competent military authority’. This wording shows that it is the military command
which controls the emblem and can give or withhold permission to use it. Moreover, only that command can order a
medical unit to be camouflaged.”). See also Frederic de Mulinen, Head of Division, International Committee of the
Red Cross, Signalling and Identification of Medical Personnel and Material, 12 INTERNATIONAL REVIEW OF THE
RED CROSS 479, 481 (1972) (“Distinctive emblems may not be displayed without the authorization of the State or ofa State authority. … The State or, by the delegation of its competency, the military command therefore ‘controls theemblem’ and is free to permit or prohibit the use of the distinctive emblem. It may even prohibit its use entirely
without thereby violating the Conventions. In that event, actual protection would obviously be very small.”).
403

GWS-SEA COMMENTARY 228-29 (“In the first place there is no obligation on a belligerent to mark his medical
units with the emblem. Sometimes military commanders have camouflaged such units—i.e. have abstained frommarking them and even tried to conceal them—in order to conceal the presence or real strength of their forces. Thisis more likely to occur on land than at sea.”).

404

Refer to § 5.2.3.2 (What Precautions Are Feasible).

405
For example, DEPARTMENT OF THE ARMY REGULATION 750-1, Army Material Maintenance Policy, ¶8-9c(17)(Sept. 2013) (“Under tactical conditions, when requirements for concealment outweigh those for recognition, allconspicuous markings may be obscured or removed by the authority and at the discretion of the major organizationcommander present. Protective red cross markings may be obscured only at the direction of the responsible major
tactical commander.”); DEPARTMENT OF THE ARMY TECHNICAL MANUAL 43-0139, Painting Instructions for Army
Material, ¶1-3g (Jan. 1990) (“Under tactical conditions, when requirements for concealment outweigh those forrecognition, all conspicuous markings may be obscured or removed by the authority and at the discretion of the
major organization commander present. Protective red cross markings may be obscured only at the direction of the
responsible major tactical commander.”).
406

AP III preamble (“Recalling that the obligation to respect persons and objects protected by the Geneva
Conventions and the Protocols additional thereto derives from their protected status under international law and is
not dependent on use of the distinctive emblems, signs or signals,”). Consider AP I Amended Annex I art. 1(1)(“The regulations concerning identification in this Annex implement the relevant provisions of the Geneva
Conventions and the Protocol; they are intended to facilitate the identification of personnel, material, units,transports and installations protected under the Geneva Conventions and the Protocol.”).

496

distinctive emblem may increase the risk that enemy forces will not recognize the protected
status of military medical and religious personnel and other protected persons and objects, andattack them in error.
7.15.3.2 Distinctive Emblem Does Not in and of Itself Establish the Right toProtection. The distinctive emblem does not in and of itself establish the right to protection. 407
Rather, the right to protection is established by the fact that the units, facilities, or personnel,
have met the applicable requirements for protected status. 408
Thus, if the distinctive emblem is displayed by forces not entitled to protection, thedisplay of the emblem does not confer protection and those forces may be made the object of
attack. On the other hand, if personnel who are entitled to protection are recognized as such,they remain entitled to respect and protection even if the distinctive emblem is not displayed. 409
7.15.4 Prohibitions on Unauthorized Uses of the Distinctive Emblem. With the exceptionof certain cases mentioned in Article 44 of the GWS (discussed below), 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 andestablishments, the personnel, and material protected by the GWS and other Conventions dealing
with similar matters (e.g., the GWS-Sea). 410 The same shall apply to the emblems mentioned in
the second paragraph of Article 38 of the GWS (i.e., the emblem of red crescent and the emblemof the red lion and sun), in respect of the countries that use them. 411
The distinguishing signs referred to in Article 43 of the GWS-Sea (i.e., certain red
crosses on white backgrounds) may only be used, whether in time of peace or war, for indicatingor protecting the ships mentioned in Article 43, except as may be provided in any otherinternational Convention (e.g., the GWS) or by agreement between all the parties to the conflict

407

See GWS COMMENTARY 307, 312, 330. Consider AP I Amended Annex I art. 1(2) (“These rules do not in and ofthemselves establish the right to protection. This right is governed by the relevant articles in the Conventions andthe Protocol.”).

408

Refer to, e.g., § 4.9.2 (Requirements for Military Medical and Religious Status); § 7.12.1.1 (Military Hospital
Ships); § 7.14.2 (Exclusively Employed for the Removal of the Wounded, Sick, or Shipwrecked, and for theTransport of Medical Personnel and Equipment).
409

GWS-SEA COMMENTARY 229 (“Obviously, respect for camouflaged units will be purely theoretical. The enemy
can respect a medical unit only if he knows of its presence. If the unit is exposed to long-range enemy fire, it willthus lose a large part of its security. If however, the enemy approaches, for instance, and recognizes the the [sic]medical unit as such, he must obviously respect it.”).

410

GWS art. 44 (“With the exception of the cases mentioned in the following paragraphs of the present Article, theemblem 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, thepersonnel and material protected by the present Convention and other Conventions dealing with similar matters.”).
411

GWS art. 44 (“The same shall apply to the emblems mentioned in Article 38, second paragraph, in respect of thecountries which use them.”).

497

concerned. 412
In particular, it is prohibited to use the distinctive emblem: (1) while engaging in attacks;(2) in order to shield, favor, or protect one’s own military operations; or (3) to impede enemy
military operations. 413 For example, using an ambulance marked with the Red Cross to mount asurprise attack against enemy forces would be prohibited. 414
Certain non-military uses of the distinctive emblem are authorized under the GWS and
GWS-Sea: (1) use by National Red Cross Societies and other Authorized Voluntary AidSocieties; (2) use by international Red Cross organizations and their duly authorized personnel;
and (3) use by ambulances and free aid stations.
7.15.4.1 Use by National Red Cross Societies and Other Authorized Voluntary
Aid Societies. The National Red Cross Societies and other Authorized Voluntary Aid Societies
designated in Article 26 of the GWS shall have the right to use the distinctive emblem conferring
the protection of the GWS only within the framework of paragraph 1 of Article 44 of the
GWS. 415
Furthermore, National Red Cross (Red Crescent, Red Lion and Sun) Societies may, intime of peace, in accordance with their national legislation, make use of the name and emblem of
the Red Cross for their other activities that are in conformity with the principles laid down by theInternational Red Cross Conferences. 416 When those activities are carried out in time of war, theconditions for the use of the emblem shall be such that it cannot be considered as conferring theprotection of the GWS; the emblem shall be comparatively small in size and may not be placedon armlets or on the roofs of buildings. 417 This use of the emblem is simply to indicate an
412

GWS-SEA art. 44 (“The distinguishing signs referred to in Article 43 can only be used, whether in time of peaceor war, for indicating or protecting the ships therein mentioned, except as may be provided in any other international
Convention or by agreement between all the Parties to the conflict concerned.”).
413

Refer to § 5.24 (Improper Use of Certain Signs).

414

For example, Trial of Heinz Hagendorf, XIII U.N. LAW REPORTS 146 (U.S. Intermediate Military Government
Court, Dachau, Germany, Aug. 8-9, 1946) (“The accused, Heinz Hagendorf, a German soldier, was tried by a Unitedstates Intermediate Military Government Court at Dachau, Germany, being charged with having ‘wrongfully used
the Red Cross emblem in a combat zone by firing a weapon at American soldiers from an enemy ambulancedisplaying such emblem.’”).
415

GWS art. 44 (“With the exception of the cases mentioned in the following paragraphs of the present Article, theemblem 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, thepersonnel and material protected by the present Convention and the other Conventions dealing with similar matters.
The same shall apply to the emblems mentioned in Article 38, second paragraph, in respect of the countries which
use them. The National Red Cross Societies and other Societies designated in Article 26 shall have the right to use
the distinctive emblem conferring the protection of the Convention only within the framework of the present
paragraph.”).
416

GWS art. 44 (“Furthermore, National Red Cross (Red Crescent, Red Lion and Sun) Societies may, in time ofpeace, in accordance with their national legislation, make use of the name and emblem of the Red Cross for theirother activities which are in conformity with the principles laid down by the International Red Cross Conferences.”).
417

GWS art. 44 (“When those activities are carried out in time of war, the conditions for the use of the emblem shallbe such that it cannot be considered as conferring the protection of the Convention; the emblem shall becomparatively small in size and may not be placed on armlets or on the roofs of buildings.”).

498

association with the Red Cross movement. 418
7.15.4.2 Use by International Red Cross Organizations and Their Duly
Authorized Personnel. The international Red Cross organizations and their duly authorized
personnel shall be permitted to make use, at all times, of the emblem of the Red Cross on a whiteground. 419
7.15.4.3 Use by Ambulances and Free Aid Stations. As an exceptional measure,in conformity with national legislation and with the express permission of one of the National
Red Cross (Red Crescent, Red Lion and Sun) Societies, the emblem of the GWS may be
employed in time of peace to identify vehicles used as ambulances and to mark the position ofaid stations exclusively assigned to the purpose of giving free treatment to the wounded orsick. 420
7.16 PROTECTION OF CIVILIANS WHO ARE WOUNDED, SICK, INFIRM, OR EXPECTANT MOTHERS
Wounded and sick civilians, as well as the infirm, and expectant mothers, shall be theobject of particular protection and respect. 421 The infirm and expectant mothers are given special
consideration along with the wounded and sick because they are vulnerable and also do not takepart in hostilities. 422
7.16.1 Obligation to Facilitate Efforts to Search for Civilians Who Are Wounded, Killed,
Shipwrecked, or Exposed to Grave Danger. 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 andill-treatment. 423

418

GWS COMMENTARY 325 (“In the second case, the sign is purely indicatory. It is only used to show that a person
or object is connected with the Red Cross, without implying the protection of the Convention or any intention to
invoke it. It is, for example, used in this way to draw public attention to premises or publications. The emblem
should then, as a rule, be small in size, and the conditions under which it is used should preclude all risk of its being
confused with the protective sign.”).

419

GWS art. 44 (“The international Red Cross organizations and their duly authorized personnel shall be permitted
to make use, at all times, of the emblem of the Red Cross on a white ground.”).
420

GWS art. 44 (“As an exceptional measure, in conformity with national legislation and with the express
permission of one of the National Red Cross (Red Crescent, Red Lion and Sun) Societies, the emblem of theConvention may be employed in time of peace to identify vehicles used as ambulances and to mark the position ofaid stations exclusively assigned to the purpose of giving free treatment to the wounded or sick.”).
421

GC art. 16 (“The wounded and sick, as well as the infirm, and expectant mothers, shall be the object of particular
protection and respect.”).
422

GC COMMENTARY 134-35 (“In addition to the wounded and sick the Diplomatic Conference mentions the infirm
and also expectant mothers, as those persons are in a state of weakness which demands special consideration. Theirbeing placed on the same footing as the wounded and sick is fully justified by the fact that they belong to categoriesof the population which do not take part in hostilities.”).
423
GC 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 toprotect them against pillage and ill-treatment.”).

499

The obligation with respect to civilians who are killed, wounded, shipwrecked, andexposed to grave danger is framed slightly differently from the corresponding obligation withrespect to military personnel who are wounded, sick, and shipwrecked. These differences may
be attributed to the fact that civilian authorities would often be responsible for collecting andbringing in civilian casualties. 424 However, as a practical matter, the armed forces may be asked
to lead such efforts or to carry out a joint relief operation with civilian authorities. 425 For
example, the U.S. armed forces often have undertaken to care for the civilian wounded andsick. 426
7.17 CIVILIAN HOSPITALS AND THEIR PERSONNEL
During international armed conflict, civilian hospitals organized to give care to thewounded and sick, the infirm, and maternity cases, may in no circumstances be the object of
attack, but shall at all times be respected and protected by the parties to the conflict. 427
7.17.1 Loss of Protection for Civilian Hospitals Used to Commit Acts Harmful to the
Enemy. The protection to which civilian hospitals are entitled shall not cease unless they areused to commit, outside their humanitarian duties, acts harmful to the enemy. 428
7.17.1.1 Acts Harmful to the Enemy. Civilian hospitals must avoid any
424

GC COMMENTARY 135 (“It is true that saving civilians is the responsibility of the civilian authorities rather thanof the military. That is why the wording of Article 16 (‘each Party to the conflict shall facilitate the steps’ …) isslightly different from the corresponding Article in the First Geneva Convention (‘Parties to the conflict shall,
without delay … take all possible measures …’).”).
425

GC COMMENTARY 135-36 (“In actual practice, however, when it is necessary to search devastated areas, themilitary and civilian bodies will usually carry out a joint relief operation covering all war casualties, civilians andmembers of the armed forces, friends and enemies. This is the only attitude to adopt in work of this description
which consists, in short, not in helping soldiers on the one hand and civilians on the other, but simply in assisting
human beings plunged into suffering by a common destiny-human beings among whom all distinctions have been
wiped out by suffering.”).
426

For example, SANDERS MARBLE, SKILLED AND RESOLUTE: A HISTORY OF THE 12TH EVACUATION HOSPITAL AND
THE 212TH MASH, 1917-2006, 69-70 (2013) (“About two-thirds of patients cared for by the 12th were US military;
the other third were mainly Vietnamese but also included nonmilitary Americans and Free World Military
Assistance Forces personnel. Staff regularly dealt with the Vietnamese, both military and civilian, enemy andfriendly. There were wards set aside for enemy prisoners (who were stabilized, then transferred to hospitals at POW
camps) and civilians. Wounded South Vietnamese Army soldiers were also stabilized and transferred to hospitals
run by the Army of the Republic of Vietnam (ARVN). Civilian patients often stayed longer because the war
swamped the available hospitals for Vietnamese civilians. Some local civilians came to the hospital for care of
conditions not related to the war.”); id. at. 104 (“Almost immediately after the ground fighting ended [during the1991 Persian Gulf War], more patients arrived: civilians, enemy prisoners, and Coalition and US troops. Despite
the influx, the 12th had to staff only 104 beds of its 400-bed maximum. At first the civilians were Kuwaitis, but by
March 23 Iraqi civilians began arriving, victims of the southern Iraqi rebellion against Saddam Hussein. The
civilians arrived in large batches, Chinook loads of 30 or 40 at a time. Not all were patients; families often
accompanied an injured member.”).
427

GC art. 18 (“Civilian hospitals organized to give care to the wounded and sick, the infirm and maternity cases,
may in no circumstances be the object of attack, but shall at all times be respected and protected by the Parties to theconflict.”).
428

GC art. 19 (“The protection to which civilian hospitals are entitled shall not cease unless they are used to commit,
outside their humanitarian duties, acts harmful to the enemy.”).

500

interference, direct or indirect, in military operations, such as the use of a hospital as a shelter for
able-bodied combatants or fugitives, as an arms or ammunition store, as a military observation
post, or as a center for liaison with combat forces. 429 However, the fact that sick or wounded
members of the armed forces are nursed in these hospitals, or the presence of small arms andammunition taken from such combatants and not yet handed to the proper service, shall not be
considered acts harmful to the enemy. 430
7.17.1.2 Due Warning Before Cessation of Protection. In addition, protection for
civilian hospitals may cease only after due warning has been given, naming, in all appropriate
cases, a reasonable time limit, and after such warning has remained unheeded. 431
The obligation to refrain from use of force against a civilian medical facility acting inviolation of its mission and protected status without due warning does not prohibit the exerciseof the right of self-defense. There may be cases in which, in the exercise of the right of selfdefense, a warning is not “due” or a reasonable time limit is not appropriate. For example, forces
receiving heavy fire from a hospital may exercise their right of self-defense and return fire. Suchuse of force in self-defense against medical units or facilities must be proportionate. For
example, a single enemy rifleman firing from a hospital window would warrant a response
against the rifleman only, rather than the destruction of the hospital. 432
7.17.2 Identification of Protected Civilian Hospitals. The GC provides for civilian
hospitals to be identified with certificates and the distinctive emblem.
7.17.2.1 State-Issued Certificates for Civilian Hospitals. States that are parties toa conflict shall provide all civilian hospitals with certificates showing that they are civilian
hospitals and that the buildings that they occupy are not used for any purpose that would deprive
these hospitals of protection in accordance with Article 19 of the GC. 433
7.17.2.2 Markings of Civilian Hospitals With the Distinctive Emblem. Civilian
hospitals shall be marked by means of the distinctive emblem provided for in Article 38 of the429

GC COMMENTARY 155 (“Such harmful acts would, for example, include the use of a hospital as a shelter for ablebodied combatants or fugitives, as an arms or ammunition store, as a military observation post, or as a centre forliaison with fighting troops. The sense will become still clearer when paragraph 2, below is considered, which
mentions two specific acts which are not to be regarded as being harmful to the enemy. One thing is certain.
Civilian hospitals must observe, towards the enemy, the neutrality which they claim for themselves and which istheir right under the Convention. Standing outside the struggle, they must steadfastly refrain from any interference,
direct or indirect, in military operations.”).
430

GC art. 19 (“The fact that sick or wounded members of the armed forces are nursed in these hospitals, or thepresence of small arms and ammunition taken from such combatants and not yet handed to the proper service, shallnot be considered to be acts harmful to the enemy.”).
431

GC art. 19 (“Protection may, however, cease only after due warning has been given, naming, in all appropriate
cases, a reasonable time limit, and after such warning has remained unheeded.”).
432

Compare § 7.10.3.2 (Due Warning Before Cessation of Protection).

433
GC art. 18 (“States which are Parties to a conflict shall provide all civilian hospitals with certificates showing thatthey are civilian hospitals and that the buildings which they occupy are not used for any purpose which would
deprive these hospitals of protection in accordance with Article 19.”).

501

GWS, but only if authorized by the State. 434
The parties to the conflict shall, in so far as military considerations permit, take thenecessary steps to make the distinctive emblems indicating civilian hospitals clearly visible tothe enemy land, air, and naval forces in order to obviate the possibility of any hostile action. 435
7.17.3 Location of Civilian Hospitals. In view of the dangers to which civilian hospitals
may be exposed by being close to military objectives, it is recommended that such hospitals besituated as far as possible from such objectives. 436
This provision of the GC was drafted because the protection for civilian hospitals in the
GC does not confer immunity on military objectives situated close to the hospital or restrict theright to make such military objectives the object of attack. 437
7.17.4 Protection of Civilian Hospital Personnel.
7.17.4.1 Civilian Hospital Personnel Who Are Regularly and Solely Engaged.
Persons regularly and solely engaged in the operation and administration of civilian hospitals,
including the personnel engaged in the search for, removal and transporting of, and caring forwounded and sick civilians, the infirm, and maternity cases, shall be respected and protected at
all times. 438 For example, a surgeon who works regularly in a hospital, but is not exclusively
employed there, would not be engaged “solely” in hospital duties and would consequently not becovered by this provision, but could fall under the category of “other civilian hospital
personnel.” 439
In occupied territory and in zones of military operations, civilian hospital personnel who
434

GC art. 18 (“Civilian hospitals shall be marked by means of the emblem provided for in Article 38 of the Geneva
Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August
12, 1949, but only if so authorized by the State.”).
435

GC art. 18 (“The Parties to the conflict shall, in so far as military considerations permit, take the necessary steps
to make the distinctive emblems indicating civilian hospitals clearly visible to the enemy land, air and naval forcesin order to obviate the possibility of any hostile action.”).
436
GC art. 18 (“In view of the dangers to which civilian hospitals may be exposed by being close to military
objectives, it is recommended that such hospitals be situated as far as possible from such objectives.”).
437

GC COMMENTARY 153 (“The last paragraph shows clearly that wide as that scope is, it is not intended to confer
immunity on military objectives situated close to a hospital or to restrict the right to attack them as such. It is forthat reason that the legal protection accorded to military hospitals must be accompanied by practical measures toensure that they are situated as far as possible from military objectives and to protect them from the accidental
consequences of attacks on such objectives. If that is not done the protection is very likely to be illusory, even if thehospitals are clearly marked.”).
438

GC art. 20 (“Persons regularly and solely engaged in the operation and administration of civilian hospitals,
including the personnel engaged in the search for, removal and transporting of and caring for wounded and sickcivilians, the infirm and maternity cases, shall be respected and protected.”).
439

GC COMMENTARY 159 (“For example, a surgeon who works regularly in a hospital, but is not exclusively
employed there because he devotes part of his time to his private practice, or again, voluntary laboratory assistants
or auxiliaries, who only work at the hospital for part of the day, or for one or two days a week, would not be
engaged ‘solely’ in hospital duties and would consequently not be covered by paragraph 1.”).

502

are regularly and solely engaged in hospital duties shall be recognizable by means of an identity
card certifying their status, bearing the photograph of the holder and embossed with the stamp of
the responsible authority, and also by means of a stamped, water-resistant armlet that they shallwear on the left arm while carrying out their duties. 440 This armlet shall be issued by the Stateand shall bear the emblem provided for in Article 38 of the GWS. 441
7.17.4.2 Other Civilian Hospital Personnel. Other personnel who are engaged in
the operation and administration of civilian hospitals shall also be entitled to respect andprotection and to wear the armlet while they are employed on such duties. 442 The identity cardshall state the duties on which they are employed. 443
7.17.4.3 List of Permanent and Temporary Civilian Hospital Personnel. The
management of each hospital shall at all times hold at the disposal of the competent national or
occupying authorities an up-to-date list of such personnel. 444 This list should provide the namesof all hospital personnel, both permanent and temporary, and specify the duties of each ofthem. 445
7.18 LAND AND SEA CIVILIAN HOSPITAL CONVOYS
Convoys of vehicles or hospital trains on land or specially provided vessels on sea,conveying wounded and sick civilians, the infirm, and maternity cases, shall be respected andprotected in the same manner as the hospitals provided for in Article 18 of the GC, and shall bemarked, with the consent of the State, by the display of the distinctive emblem provided for in
Article 38 of the GWS. 446
The vehicles in a medical convoy need not be used permanently for medical purposes,
440

GC art. 20 (“In occupied territory and in zones of military operations, the above personnel shall be recognizable
by means of an identity card certifying their status, bearing the photograph of the holder and embossed with thestamp of the responsible authority, and also by means of a stamped, water-resistant armlet which they shall wear on
the left arm while carrying out their duties.”).
441

GC art. 20 (“This armlet shall be issued by the State and shall bear the emblem provided for in Article 38 of the
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field ofAugust 12, 1949.”).
442

GC art. 20 (“Other personnel who are engaged in the operation and administration of civilian hospitals shall beentitled to respect and protection and to wear the armlet, as provided in and under the conditions prescribed in this
Article, while they are employed on such duties.”).
443

GC art. 20 (“The identity card shall state the duties on which they are employed.”).

444

GC art. 20 (“The management of each hospital shall at all times hold at the disposal of the competent national or
occupying authorities an up-to-date list of such personnel.”).
445

GC COMMENTARY 169 (“The management of every civilian hospital must keep an up-to-date nominal list of all
the hospital staff, both permanent and temporary, specifying the duties of each of them.”).
446

GC art. 21 (“Convoys of vehicles or hospital trains on land or specially provided vessels on sea, conveying
wounded and sick civilians, the infirm and maternity cases, shall be respected and protected in the same manner as
the hospitals provided for in Article 18, and shall be marked, with the consent of the State, by the display of the
distinctive emblem provided for in Article 38 of the Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field of August 12, 1949.”).

503

but while they are in the convoy, they are not to be used for other purposes. 447
7.18.1 Protection of Civilian Hospital Convoys on the Same Basis as That of Civilian
Hospitals. The protection to which these convoys are entitled shall not cease unless they areused to commit, outside their humanitarian duties, acts harmful to the enemy. 448
As with civilian hospitals, medical convoys must maintain a strict abstention from any
direct or indirect participation in a hostile act in order to retain protection. 449 However, the factthat sick or wounded members of the armed forces are transported by these convoys, or thepresence of small arms and ammunition taken from such combatants and not yet handed to theproper service, shall not be considered acts harmful to the enemy. 450
In addition, protection for civilian medical convoys may cease only after due warning has
been given, naming, in all appropriate cases, a reasonable time limit, and after such warning has
remained unheeded. 451
7.19 CIVILIAN MEDICAL AIRCRAFT
Aircraft exclusively employed for the removal of wounded and sick civilians, the infirm,
and maternity cases, or for the transport of medical personnel and equipment, shall not be
attacked, but shall be respected while flying at heights, times, and on routes specifically agreed
upon between all the parties to the conflict concerned. 452
7.19.1 Civilian Medical Aircraft Not Flying at Heights and Times and on Routes
Specifically Agreed Upon by Belligerents Concerned. As with medical aircraft for military
personnel, the use of protected medical aircraft for civilians generally depends on an agreement
between the belligerents. 453
However, as with medical aircraft for military personnel, known civilian medical aircraft,when performing their humanitarian functions, must be respected and protected, provided they447

GC COMMENTARY 170 (“The word ‘vehicle’ must be taken in the broadest possible sense: it covers any meansof transport by land; it need not necessarily be used solely for medical purposes. It will be enough if it is so used
occasionally and temporarily, provided, of course, that while so employed it is not used for any other purpose. A
medical convoy composed of horse drawn vehicles normally used for transporting agricultural produce andoccasionally used in the service of the wounded, must, therefore, be protected in the same way as a convoy of
specially designed ambulances.”).
448

Compare § 7.17.1 (Loss of Protection for Civilian Hospitals Used to Commit Acts Harmful to the Enemy).

449

GC COMMENTARY 171 (“As in the case of civilian hospitals and their staff, the protection of medical transport
depends on strict abstention from any direct or indirect participation in a hostile act.”).
450

Compare § 7.17.1.1 (Acts Harmful to the Enemy).

451

Compare § 7.17.1.2 (Due Warning Before Cessation of Protection).

452

GC art. 22 (“Aircraft exclusively employed for the removal of wounded and sick civilians, the infirm andmaternity cases, or for the transport of medical personnel and equipment, shall not be attacked, but shall be
respected while flying at heights, times and on routes specifically agreed upon between all the Parties to the conflictconcerned.”).
453

Refer to § 7.14 (Military Medical Aircraft).

504

identify themselves as such and comply with the directions of the enemy State. 454
7.19.2 Marking of Civilian Medical Aircraft With the Distinctive Emblem. The aircraft
may be marked with the distinctive emblem provided for in Article 38 of the GWS. 455
7.19.3 Prohibition of Flight Over Enemy Territory. Unless otherwise agreed, flights overenemy or enemy-occupied territory are prohibited. 456
7.19.4 Summons to Land. Such aircraft shall obey every summons to land. 457 If theaircraft refuses to obey, it does so at its own risk. 458
In the event of a landing thus imposed, the aircraft with its occupants may continue its
flight after examination, if any. 459 However, if examination reveals that an act “harmful to theenemy” has been committed, e.g., if the aircraft is carrying munitions or has been used formilitary observation, it loses the benefit of the GC; the aircraft may be seized and the crew andpassengers detained. 460
7.20 AP I PROVISIONS ON THE WOUNDED, SICK, AND SHIPWRECKED
Part II of AP I has a number of provisions regarding the wounded, sick, and shipwrecked.
These provisions have generally not been discussed in this Chapter because the United States is
not a Party to AP I. These provisions, however, are summarized in this section to familiarize
service members with them in case U.S. forces are engaged in multinational operations with, orare engaged in armed conflict against, States that are Parties to AP I.
454

Refer to § 7.14.1 (Medical Aircraft Not Flying at Heights and Times and on Routes Specifically Agreed Upon by
Belligerents Concerned).
455

GC art. 22 (“They may be marked with the distinctive emblem provided for in Article 38 of the Geneva
Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August
12, 1949.”).
456

GC art. 22 (“Unless agreed otherwise, flights over enemy or enemy-occupied territory are prohibited.”).

457

GC art. 22 (“Such aircraft shall obey every summons to land.”). See also GC COMMENTARY 176 (“The summonsto land provides the adverse party with a safeguard; it is the one real means of defence against abuse. This
extremely important provision has also been taken from the First Geneva Convention of 1949; it states explicitly that
medical aircraft must obey every summons to land. It applies in the first place to aircraft flying over enemy orenemy-occupied territory whether or not they are authorized to do so. It also applies to aircraft which are over theirown territory but close to the enemy lines.”).
458

GC COMMENTARY 176 (“If the aircraft refuses to obey, it does so at its own risk and it is lawful to open fire on it.
If the machine is already out of range, the summons obviously becomes a mere formality. It should not be forgotten
however that if the plane refuses to obey the summons and is pursued it loses the protection of the Convention,
having failed to comply with its own obligations.”).
459

GC art. 22 (“In the event of a landing thus imposed, the aircraft with its occupants may continue its flight after
examination, if any.”).
460

GC COMMENTARY 177 (“If—and it is to be hoped that such cases will be the exception—if examination reveals
that an act ‘harmful to the enemy’, in the sense of Article 19, has been committed, i.e. if the plane is carrying
munitions or has been used for military observation, it loses the benefit of the Convention; the enemy may seize it
and intern the crew and passengers or, should occasion arise, treat them in accordance with Article 5 of theConvention.”).

505

7.20.1 AP I Provisions on General Protection of the Wounded, Sick, and Shipwrecked
Persons. Section I of Part II of AP I seeks to elaborate upon and change the protections afforded
the wounded, sick, and shipwrecked. For example, AP I provides protection for certain civilian
medical units. 461 The obligations in AP I also cover both combatants and civilians. For the
purpose of applying AP I, Article 8 of AP I defines “wounded” and “sick” to include persons“whether military or civilian” and “maternity cases, new-born babies and other persons who may
be in need of immediate medical assistance or care, such as the infirm or expectant mothers, andwho refrain from any act of hostility.” 462 On the other hand, in the 1949 Geneva Conventions,the protections for civilians who are wounded and sick are addressed in the GC, and theprotections for combatants who are wounded and sick are addressed in the GWS, GWS-Sea, and
GPW. 463
7.20.2 AP I Provisions on Medical Transportation. Section II of AP I has a number ofarticles that are intended to expand upon the protection afforded to medical transports. For
example, under AP I, the respect and protection of medical aircraft of a party to the conflict inand over land areas physically controlled by friendly forces or in and over sea areas not
physically controlled by an adverse party are not dependent on any agreement with an adverse
party. 464 Similarly, the protection of small craft described in Article 27 of the GWS-Sea isafforded, even if the notification envisaged by that Article has not been made. 465
7.20.3 AP I Provisions on Missing and Dead Persons. Section III of Part II of AP I has
three articles that are intended to help families know the fate of their relatives. 466 For example,
as soon as circumstances and the relations between adverse parties permit, the States that are
Parties to AP I in whose territories graves may be shall conclude agreements: (1) to facilitate
access to gravesites by relatives of the deceased and by representatives of official Graves
461

AP I art. 12(2) (“2. Paragraph 1 shall apply to civilian medical units, provided that they: a) belong to one of theParties to the conflict; b) are recognized and authorized by the competent authority of one of the Parties to theconflict; or c) are authorized in conformity with Article 9, paragraph 2, of this Protocol or Article 27 of the First
Convention.”).
462

AP I art. 8(a) (“‘Wounded’ and ‘sick’ mean 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 refrainfrom any act of hostility. These terms also cover maternity cases, new-born babies and other persons who may be inneed of immediate medical assistance or care, such as the infirm or expectant mothers, and who refrain from any actof hostility;”).

463

Refer to § 7.3.2 (Persons Entitled to Protection as Wounded, Sick, or Shipwrecked Under the GWS and GWSSea); § 7.16 (Protection of Civilians Who Are Wounded, Sick, Infirm, or Expectant Mothers).
464

AP I art. 25 (“In and over land areas physically controlled by friendly forces, or in and over sea areas not
physically controlled by an adverse Party, the respect and protection of medical aircraft of a Party to the conflict is
not dependent on any agreement with an adverse Party. For greater safety, however, a Party to the conflict operating
its medical aircraft in these areas may notify the adverse Party, as provided in Article 29, in particular when suchaircraft are making flights bringing them within range of surface-to-air weapons systems of the adverse Party.”).
465

AP I art. 22(3) (“Small craft described in Article 27 of the Second Convention shall be protected even if thenotification envisaged by that Article has not been made. The Parties to the conflict are, nevertheless, invited to
inform each other of any details of such craft which will facilitate their identification and recognition.”).
466
AP I art. 32 (“In the implementation of this Section, the activities of the High Contracting Parties, of the Parties
to the conflict and of the international humanitarian organizations mentioned in the Conventions and in this Protocol
shall be prompted mainly by the right of families to know the fate of their relatives.”).

506

Registration Services and to regulate the practical arrangements for such access; (2) to protect
and maintain such gravesites permanently; and (3) to facilitate the return of the remains of thedeceased and of personal effects to the home country upon its request or, unless that country
objects, upon the request of the next of kin. 467

467

Consider AP I art. 34(2) (“As soon as circumstances and the relations between the adverse Parties permit, theHigh Contracting Parties in whose territories graves and, as the case may be, other locations of the remains of
persons who have died as a result of hostilities or during occupation or in detention are situated, shall conclude
agreements in order: (a) to facilitate access to the gravesites by relatives of the deceased and by representatives ofofficial graves registration services and to regulate the practical arrangements for such access; (b) to protect andmaintain such gravesites permanently; (c) to facilitate the return of the remains of the deceased and of personal
effects to the home country upon its request or, unless that country objects, upon the request of the next of kin.”).

507

VIII – Detention: Overview and Baseline Rules
Chapter Contents
8.1 Introduction
8.2 Humane Treatment of Detainees
8.3 Security Measures
8.4 Interrogation
8.5 Adequate Food, Drinking Water, and Clothing
8.6 General Conditions of Detention Facilities
8.7 Segregation of Detainees
8.8 Medical Attention
8.9 Administration and Discipline in Detention Facilities
8.10 Contacts With the Outside World
8.11 Religious Exercise
8.12 Intellectual, Physical, and Recreational Activities
8.13 Adequate Working Conditions
8.14 Procedures for Detention
8.15 National Accountability for Detention
8.16 Criminal Procedure and Punishment
8.1 INTRODUCTION
8.1.1 Overview of Detention Rules in This Manual and the Scope of Chapter VIII. Theinternment of POWs is addressed in Chapter IX. The internment of protected persons in thehome territory of a belligerent or in occupied territory is addressed in Chapter X.
Detention may occur outside these contexts. For example, the detention of civilians may
occur outside a belligerent’s home territory but before the establishment of occupation.
Similarly, detention may occur in non-international armed conflict or other military operations,such as non-combatant evacuation operations, peace operations, or humanitarian assistance
operations. There are no “law-free zones” in which detainees are outside the protection of thelaw. Where no more specific rules apply, the rules in this Chapter apply as baseline rules
addressing the detention of persons during military operations. For example, the following
situations are covered by the rules in this Chapter:•

detention of persons who have participated in hostilities or who belong to armed groups,
but who are not entitled to POW status or protected person status in international armed
conflict;•

detention of persons held for reasons related to a non-international armed conflict; and•any other detentions.

8.1.2 DoD Policies and Regulations Regarding the Treatment of Detainees. DoD policies
and regulations regarding the treatment of detainees provide authoritative guidance for DoD

508

personnel and fill an important role in implementing the requirements of Common Article 3 ofthe 1949 Geneva Conventions and applicable customary international law. 1 Practitioners areadvised to consult all applicable policies and regulations, as these, in many cases, exceed therequirements of international law, U.S. statutes, and Executive Orders.
The practice of the U.S. armed forces has been to go beyond a minimalist approach ofcomplying with the baseline rules of Common Article 3 of the 1949 Geneva Conventions andinstead to endeavor to enhance conditions so as to ensure that treatment of detainees exceeds therequirements of humane treatment standards under international law, consistent with security
concerns. 2
8.1.3 Ad Hoc Legal Instruments or Frameworks That May Be Applicable to Detention
Outside the Context of POW or Civilian Internment. The detention of persons under the law ofwar, outside the context of the regimes specified in Chapters IX (POWs under the GPW) and X(protected persons under the GC who are interned in a belligerent’s home territory or occupied
territory) may be addressed in ad hoc legal instruments or frameworks.
Such legal instruments may include, for example, an international agreement between theState conducting detention operations and the State on whose territory the operations are being
conducted. 3 As another example, a U.N. Security Council Resolution may provide a basis for
detention operations. 4
8.1.3.1 Detention Authority. The legal authority to detain outside the context of1

Refer to § 18.7 (Instructions, Regulations, and Procedures to Implement and Enforce the Law of War).

2

For example, Admiral Patrick Walsh, et al., Department of Defense, Review of Department Compliance with
President’s Executive Order on Detainee Conditions of Confinement, 4 (2009) (“While we conclude that conditions
at Guantánamo are in conformity with Common Article 3, from our review, it was apparent that the chain ofcommand responsible for the detention mission at Guantánamo consistently seeks to go beyond a minimalist
approach to compliance with Common Article 3, and endeavors to enhance conditions in a manner as humane aspossible consistent with security concerns.”).
3

For example, Agreement Between the United States and the Republic of Iraq on the Withdrawal of United States
Forces from Iraq and the Organization of their Activities during their Temporary Presence in Iraq, Nov. 17, 2008,
art. 22(1) (“No detention or arrest may be carried out by the United States Forces (except with respect to detention
or arrest of members of the United States Forces and of the civilian component) except through an Iraqi decision
issued in accordance with Iraqi law and pursuant to Article 4.”).
4For example, U.N. SECURITY COUNCIL RESOLUTION 1546 (2004), U.N. Doc. S/RES/1546(2004), ¶10 (Jun. 8,
2004) (“Decides that the multinational force shall have the authority to take all necessary measures to contribute to
the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution expressing,inter alia, the Iraqi request for the continued presence of the multinational force and setting out its tasks, including
by preventing and deterring terrorism, so that, inter alia, the United Nations can fulfil its role in assisting the Iraqi
people as outlined in paragraph seven above and the Iraqi people can implement freely and without intimidation thetimetable and programme for the political process and benefit from reconstruction and rehabilitation activities;”).
See also Colin L. Powell, Secretary of State, Letter to the Lauro L. Baja, Jr., President of the Security Council, Jun.
5, 2004, annexed to U.N. SECURITY COUNCIL RESOLUTION 1546 (2004), U.N. Doc. S/RES/1546(2004), 10, 11 (Jun.
8, 2004) (“Under the agreed arrangement, the MNF stands ready to continue to undertake a broad range of tasks tocontribute to the maintenance of security and to ensure force protection. These include activities necessary tocounter ongoing security threats posed by forces seeking to influence Iraq’s political future through violence. This
will include combat operations against members of these groups, internment where this is necessary for imperative
reasons of security, and the continued search for and securing of weapons that threaten Iraq’s security.”).

509

the internment of POWs or protected persons may be addressed in ad hoc international
instruments. Even if not specifically addressed in an international legal instrument, the legal
authority to detain may sometimes be understood as an incident of general authorities conferredby that instrument, such as a U.N. Security Council Resolution authorizing military operations oran agreement authorizing one State to conduct military operations on the territory of anotherState. 5
In many cases, the legal authority to detain would be understood as an exercise of the
Detaining Power’s sovereign rights under international law rather than, or in addition to,authorities arising from an international legal instrument. 6
The authority to detain is often understood as an incident to more general authorities
because detention is fundamental to waging war or conducting other military operations (e.g.,
noncombatant evacuation operations, peacekeeping operations). 7 Detention operations may be
militarily necessary to achieve the object of those operations. 8 In addition, the right to use force
in self-defense during such operations includes at least a limited right to detain for security
reasons. 9 In fact, it may be inhumane to conduct military operations without some provision for
those who are detained incident to the operations (e.g., being prepared to conduct detention
operations, and provision for transfer of captured persons to coalition partners who are5

For example, Brigadier General Bantz J. Craddock, Task Force Falcon, Policy Letter #TFF-04, Detention
Processing ¶1 (Aug. 3, 1999), reprinted in CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE
GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, LAW AND MILITARY OPERATIONS IN KOSOVO, 1999-2001:
LESSONS LEARNED FOR JUDGE ADVOCATES 281 (2001) (“Pursuant to United Nations Security Council Resolution
1244, KFOR [Kosovo Force] has the responsibility to ensure public safety and order until the international civilpresence can take responsibility for this task. Sergio Vieira de Mello reiterated that, ‘In performing this task, KFOR
has the right to apprehend and detain persons who are suspected of having committed offenses against public safety
and order, including the commission of such serious offenses as murder, rape, kidnapping or arson, or war crimes(enclosure).’ This memorandum outlines the procedures to be employed in the Multi-National Brigade-East Area of
Responsibility (MNB-E AOR) for the detention and release of civilians.”).
6Refer to § 1.3.3.1 (Law of War as Prohibitive Law).

7

See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (plurality) (“The AUMF authorizes the President to use‘all necessary and appropriate force’ against ‘nations, organizations, or persons’ associated with the September 11,
2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States
in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network
responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that
detention of individuals falling into the limited category we are considering, for the duration of the particularconflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the‘necessary and appropriate force’ Congress has authorized the President to use.”); Moyer v. Peabody, 212 U.S. 78,
84 (1909) (Holmes, J.) (“The constitution [of the State of Colorado] is supplemented by an act providing that ‘when
an invasion of or insurrection in the state is made or threatened, the Governor shall order the national guard to repel
or suppress the same.’ Laws of 1897, c. 63, Art. 7, § 2, p. 204. That means that he shall make the ordinary use of thesoldiers to that end; that he may kill persons who resist, and, of course, that he may use the milder measure ofseizing the bodies of those whom he considers to stand in the way of restoring peace.”).
8See, e.g., Copenhagen Process: Principles and Guidelines ¶3 (“Participants recognised that detention is anecessary, lawful and legitimate means of achieving the objectives of international military operations;”).
9

For example, Detainee Review Procedures at Bagram Theater Internment Facility (BTIF), Afghanistan, enclosure
to Phillip Carter, Deputy Assistant Secretary of Defense for Detainee Policy, Letter to Chairman Carl Levin, Jul. 14,
2009 (“(U) U.S. Forces operating under Operation Enduring Freedom (OEF) authority are authorized to detain
persons temporarily, consistent with the laws and customs of war (e.g., in self-defense or for force protection).”).

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conducting humane detention operations). 10
8.1.3.2 Specific Procedures or Restrictions Applicable to Detention Outside theContext of POW or Protected Person Internment. Ad hoc legal instruments may provide
additional procedures or restrictions applicable to detention outside the context of the internmentof POWs or protected persons. For example, special agreements between opposing non-State
parties to a conflict could be used to bring into force provisions of the GPW or GC for the
purposes of that conflict. 11 As another example, agreements among coalition partners regarding
the transfer of detainees between one another might prescribe additional requirements.
8.1.4 Sources of Baseline Standards for the Treatment of Detainees. The baseline
standards for the treatment of detainees by U.S. armed forces addressed in this Chapter are
derived from Common Article 3 of the 1949 Geneva Conventions, applicable customaryinternational law, and applicable U.S. law and national policy. The principle of humanity
animates the rules discussed in this Chapter. 12 In addition, analogous provisions of the GPW and
the GC may also be helpful in understanding the baseline rules for detention.
8.1.4.1 Common Article 3 of the 1949 Geneva Conventions. Although Common
Article 3 of the 1949 Geneva Conventions provides that it applies “[i]n the case of armed conflict
not of an international character occurring in the territory of one of the High Contracting
Parties,” Common Article 3 reflects minimum standards for humane treatment that apply to all
military operations. 13 Thus, during both international and non-international armed conflict,Common Article 3 reflects a minimum yardstick of humane treatment protections for “allpersons taking no active part in hostilities, including members of armed forces who have laid
down their arms and those placed hors de combat by sickness, wounds, detention, or any othercause.” 14
DoD policy has explicitly incorporated the standards in Common Article 3 as minimum
standards. 15

10Refer to § 5.4.7 (Prohibition Against Declaring That No Quarter Be Given).

11

Refer to § 17.3 (Special Agreements Between Parties to the Conflict).

12

Refer to § 2.3 (Humanity).

13

Refer to § 3.1.1.2 (Applying Law of War Standards as Reflecting Minimum Legal Standards).

14

GWS art. 3; GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3 (same). See Hamdan v. Rumsfeld, 548 U.S.
557, 630-31 (2006) (explaining that Common Article 3 provides “some minimal protection” in all armed conflicts);
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, Judgment, 1986
I.C.J. 14, 114 (¶218) (explaining that the rules in Common Article 3 of the 1949 Geneva Conventions “constitute a
minimum yardstick,” in all armed conflicts and reflect “elementary considerations of humanity”) (quoting Corfu
Channel Case (United Kingdom v. Albania), Merits, Judgment, 1949 I.C.J. 4, 22).
15

For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3a (Aug. 19, 2014) (“Until a detainee’s
release, repatriation, or transfer from DoD custody or control, all persons subject to this directive will, without
regard to a detainee’s legal status, at a minimum apply: (1) The standards established in Common Article 3 toReferences (b) through (e).”); DOD DIRECTIVE 2310.01E, The Department of Defense Detainee Program, ¶¶4.1-4.2(Sept. 5, 2006) (requiring that all detainees “be treated humanely” and “shall receive, at a minimum, the standard oftreatment discussed in Common Article 3 of the Geneva Conventions”).

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8.1.4.2 Article 75 of AP I and Relevant AP II Provisions. Article 75 of AP I
reflects fundamental guarantees for the treatment of persons detained during international armed
conflict. Although not a Party to AP I, the United States has stated that the U.S. Government
will choose out of a sense of legal obligation to treat the principles set forth in Article 75 asapplicable to any individual it detains in an international armed conflict, and expects all othernations to adhere to these principles as well. 16 This statement was intended to contribute to the
crystallization of the principles contained in Article 75 as rules of customary international law
applicable in international armed conflict. 17
AP II also contains provisions that expand on Common Article 3’s protections for
persons held for reasons related to non-international armed conflict. Although the United States
has not ratified AP II, President Reagan submitted AP II to the Senate for its advice and consent
to ratification, and the Executive Branch has urged the Senate to act as soon as practicable on AP
II, noting further that reviews have determined that relevant U.S. military practices are consistent
with AP II. 18
8.1.4.3 U.S. Domestic Law and National Policy. In addition to international law,
the requirements in this Chapter are also based on the requirements of applicable U.S. statutes,
such as the Detainee Treatment Act of 2005, or national policy, such as the requirements statedin applicable Executive Orders.
8.1.4.4 Analogous GPW and GC Provisions. In some cases, analogous provisionsof the GPW and the GC may also be helpful in understanding the baseline rules for detention.
For example, it may be appropriate to apply the principles of the GPW and GC, even when therelevant provisions do not apply as a matter of law. 19
16

See The White House, Office of the Press Secretary, Fact Sheet: New Actions on Guantánamo and Detainee
Policy, Mar. 7, 2011 (“Article 75 of Additional Protocol I, which sets forth fundamental guarantees for persons in
the hands of opposing forces in an international armed conflict, is similarly important to the international legal
framework. Although the Administration continues to have significant concerns with Additional Protocol I, Article
75 is a provision of the treaty that is consistent with our current policies and practice and is one that the UnitedStates has historically supported. Our adherence to these principles is also an important safeguard against the
mistreatment of captured U.S. military personnel. The U.S. Government will therefore choose out of a sense oflegal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in aninternational armed conflict, and expects all other nations to adhere to these principles as well.”).

17Harold Koh, Legal Adviser, Department of State, Responses to Questions Submitted by Senator Richard G. Lugar,
Libya and War Powers: Hearing Before the Committee on Foreign Relations, U.S. Senate, 112th Congress, First
Session, 53, 57 (Jun. 28, 2011) (“As a matter of international law, the administration’s statement is likely to bereceived as a statement of the U.S. Government’s opinio juris as well as a reaffirmation of U.S. practice in this area.
The statement is therefore also likely to be received as a significant contribution to the crystallization of theprinciples contained in Article 75 as rules of customary international law applicable in international armed conflict.
… The U.S. statement, coupled with a sufficient density of State practice and opinio juris, would contribute tocreation of the principles reflected in Article 75 as rules of customary international law, which all States would be
obligated to apply in international armed conflict.”).
18

Refer to § 19.20.2.1 (The United States and AP II).

19

For example, George W. Bush, Memorandum: Humane Treatment of Taliban and al Qaeda Detainees ¶5 (Feb. 7,
2002) (“I hereby reaffirm the order previously issued by the Secretary of Defense to the United States Armed Forces
requiring that the detainees be treated humanely and, to the extent appropriate and consistent with military necessity,
in a manner consistent with the principles of Geneva.”).

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In addition, as a general matter, analogous provisions of the GPW and GC may be helpful
for understanding the requirements in international law for conducting detention operations
because the baseline standards for such operations during armed conflict are not more restrictive
upon States than the requirements with respect to POWs and civilian internees under the GPW
and GC, respectively. 20
In this Chapter, cross-references to sections that address analogous GPW and GC
requirements are used for the purposes described above.
8.1.4.5 Copenhagen Process on the Handling of Detainees in International
Military Operations. From 2007 to 2012, U.S. representatives participated, along with those of
23 other States and from several international organizations, in a process led by the Governmentof Denmark to formulate principles and guidelines on the handling of detainees in international
military operations. 21 Participants in the Copenhagen Process sought to develop principles toguide the implementation of the existing obligations with respect to detention in international
military operations and to promote best practices. 22 The Copenhagen Process Principles andGuidelines is not a text of a legally binding nature. 23

20

For example, In re Guantanamo Bay Litigation, Respondents’ Memorandum Regarding the Government’s
Detention Authority Relative to Detainees Held at Guantanamo Bay, Misc. No. 08-442, 1 (D.D.C., Mar. 13, 2009)(“The laws of war have evolved primarily in the context of international armed conflicts between the armed forcesof nation states. This body of law, however, is less well-codified with respect to our current, novel type of armed
conflict against armed groups such as al-Qaida and the Taliban. Principles derived from law-of-war rules governinginternational armed conflicts, therefore, must inform the interpretation of the detention authority Congress has
authorized for the current armed conflict. … The President also has the authority under the AUMF [Authorization
for the Use of Military Force] to detain in this armed conflict those persons whose relationship to al-Qaida or the
Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render themdetainable.”).
21

Copenhagen Process: Principles and Guidelines ¶I (“The Copenhagen Process on the Handling of Detainees inInternational Military Operations (The Copenhagen Process) was launched on 11 October 2007 and was concluded
in Copenhagen on 19 October 2012. Representatives from Argentina, Australia, Belgium, Canada, China, Denmark,Finland, France, Germany, India, Malaysia, New Zealand, Nigeria, Norway, Pakistan, Russia, South Africa,
Sweden, Tanzania, the Netherlands, Turkey, Uganda, the United Kingdom, and the United States of America
participated in The Copenhagen Process meetings. Representatives of the African Union (AU), the European Union(EU), the North Atlantic Treaty Organisation (NATO), the United Nations (UN), and the International Committee of
the Red Cross (ICRC) also attended The Copenhagen Process meetings as observers. Representatives of civilsociety were also consulted at various stages of The Copenhagen Process;”).
22

Copenhagen Process: Principles and Guidelines ¶II (“During The Copenhagen Process meetings participants –while not seeking to create new legal obligations or authorizations under international law – confirmed the desire todevelop principles to guide the implementation of the existing obligations with respect to detention in international
military operations; … Participants were also inspired by the good practices that States and organisations havedeveloped in international military operations;”).
23

Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines, ¶16.2 (“This savings clausealso recognises that The Copenhagen Process Principles and Guidelines is not a text of a legally binding nature andthus, does not create new obligations or commitments. Furthermore, The Copenhagen Process Principles andGuidelines cannot constitute a legal basis for detention. Although some language, e.g., Principle 2, may reflect legal
obligations in customary and treaty law, The Copenhagen Process Principles and Guidelines are intended to reflect
generally accepted standards. In such instances, the applicability and binding nature of those obligations isestablished by treaty law or customary international law, as applicable, and not by The Copenhagen Process
Principles and Guidelines. Since The Copenhagen Process Principles and Guidelines were not written as a

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The Copenhagen Process Principles and Guidelines are intended to apply to international
military operations in the context of non-international armed conflicts and peace operations; they
are not intended to address international armed conflicts. 24
8.2 HUMANE TREATMENT OF DETAINEES
Detainees shall in all circumstances be treated humanely and protected against any cruel,inhuman, or degrading treatment. This requirement has been reflected in international law, 25
domestic law, 26 national policy, 27 and DoD policies. 28 Violations of the requirement to treat
detainees humanely may be violations of criminal law, although it is not a purpose of this section
to address liability under criminal law.
8.2.1 Protection Against Violence, Torture, and Cruel Treatment. Detainees must be
protected against violence to life and person, in particular murder of all kinds, mutilation, crueltreatment, torture, and any form of corporal punishment. 29

restatement of customary international law, the mere inclusion of a practice in The Copenhagen Process Principles
and Guidelines should not be taken as evidence that States regard the practice as required out of a sense of legal
obligation.”).
24

Copenhagen Process: Principles and Guidelines ¶IX (“The Copenhagen Process Principles and Guidelines areintended to apply to international military operations in the context of non-international armed conflicts and peace
operations; they are not intended to address international armed conflicts;”).
25

GWS art. 3 (requiring that “[p]ersons taking no active part in the hostilities, including members of armed forces
who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause,shall in all circumstances be treated humanely”); GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3 (same).
26

42 U.S.C. § 2000dd (“No individual in the custody or under the physical control of the United States Government,
regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or
punishment.”).
27

See, e.g., Executive Order 13491, Ensuring Lawful Interrogations, 74 FEDERAL REGISTER 4893, 4894 (Jan. 22,2009) (“Consistent with the requirements of the Federal torture statute, 18 U.S.C. 2340–2340A, section 1003 of the
Detainee Treatment Act of 2005, 42 U.S.C. 2000dd, the Convention Against Torture, Common Article 3, and otherlaws regulating the treatment and interrogation of individuals detained in any armed conflict, such persons shall in
all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of
all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity (including humiliating anddegrading treatment), whenever such individuals are in the custody or under the effective control of an officer,
employee, or other agent of the United States Government or detained within a facility owned, operated, or
controlled by a department or agency of the United States.”); George W. Bush, Memorandum: Humane Treatment
of Taliban and al Qaeda Detainees ¶5 (Feb. 7, 2002) (“I hereby reaffirm the order previously issued by the
Secretary of Defense to the United States Armed Forces requiring that the detainees be treated humanely and, to theextent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”).
28

For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3b (Aug. 19, 2014) (“All detainees will betreated humanely and with respect for their dignity, in accordance with applicable U.S. law and policy and the lawof war. The humane treatment requirements in this section apply during all military operations, however
characterized.”); DOD DIRECTIVE 2310.01E, The Department of Defense Detainee Program, ¶4.1 (Sept. 5, 2006)(“All detainees shall be treated humanely and in accordance with U.S. law, the law of war, and applicable U.S.
policy.”); 1997 MULTI-SERVICE DETENTION REGULATION § 1-5.b (“All prisoners will receive humane treatment
without regard to race, nationality, religion, political opinion, sex, or other criteria.”).
29

See GWS art. 3 (prohibiting with respect to persons taking no active part in the hostilities “violence to life andperson, in particular murder of all kinds, mutilation, cruel treatment and torture”); GWS-SEA art. 3 (same); GPW art.

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8.2.2 Protection Against Humiliating or Degrading Treatment. Detainees must be
protected against outrages upon personal dignity, in particular, humiliating and degrading
treatment. 30
8.2.2.1 Protection Against Rape, Enforced Prostitution, and Other Indecent
Assault. Detainees must be protected against rape, forced prostitution, and other indecent
assault. 31 Indecent assault is generally referred to today as sexual assault. 32
8.2.2.2 Protection Against Public Curiosity. Detainees must be protected against
insults and public curiosity. 33 For example, displaying detainees publicly with the purpose of
exposing them to ridicule and humiliation is prohibited. 34
8.2.2.3 DoD Practice of Generally Prohibiting Taking Photographs Without
Authorization. In order to protect detainees against public curiosity, among other reasons, DoD
policy has generally prohibited the taking of photographs of detainees except for authorizedpurposes. 35
8.2.3 Prohibition Against Biological or Medical Experiments. Medical or biological3 (same); GC art. 3 (same). Consider AP I art. 75(2)(a) (prohibiting with respect to persons who are in the power ofa Party to the conflict “[v]iolence to the life, health, or physical or mental well-being of persons, in particular: (i)Murder; (ii) Torture of all kinds, whether physical or mental; (iii) Corporal punishment; and (iv) [Mutilation];”)(brackets in original); AP II art. 4(2) (prohibiting with respect to persons who do not take a direct part or who haveceased to take part in hostilities “[v]iolence to the life, health and physical or mental well-being of persons, inparticular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;”).
30

See GWS art. 3 (prohibiting with respect to persons taking no active part in the hostilities “outrages upon personaldignity, in particular, humiliating and degrading treatment;”); GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3(same).
31

Consider AP I art. 75(2)(b) (prohibiting with respect to persons who are in the power of a Party to the conflict“[o]utrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any
form of indecent assault”); AP II art. 4(2)(e) (prohibiting “[o]utrages upon personal dignity, in particular humiliating
and degrading treatment, rape, enforced prostitution and any form of indecent assault;”). Compare § 9.5.1 (Respect
for Their Persons and Honor); § 10.5.1.2 (Protection for Women Against Rape or Other Indecent Assault).

32

BLACK’S LAW DICTIONARY (9th ed., 2009) (“indecent assault. See sexual assault (2) under assault.”).

33

DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3b(2) (Aug. 19, 2014) (“All detainees will be respected as
human beings … . They will be protected against … public curiosity, … .”); DOD DIRECTIVE 2310.01E, The
Department of Defense Detainee Program, ¶E4.1.1.3 (Sept. 5, 2006) (“All detainees will be respected as humanbeings. They will be protected against … public curiosity … .”); Chairman’s Commentary to the Copenhagen
Process: Principles and Guidelines, ¶2.3 (“Furthermore, humane treatment implies that detainees will be protectedfrom insults and public curiosity.”).

34Compare § 9.5.3 (Protection Against Insults and Public Curiosity).

35

For example, 1997 MULTI-SERVICE DETENTION REGULATION § 1-5.d (“Photographing, filming, and video tapingof individual EPW, CI and RP for other than internal Internment Facility administration or
intelligence/counterintelligence purposes is strictly prohibited. No group, wide area or aerial photographs of EPW,
CI and RP or facilities will be taken unless approved by the senior Military Police officer in the Internment Facility
commander’s chain of command.”).

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experiments on detainees are prohibited. 36
8.2.4 Threats to Commit Inhumane Treatment. Threats to commit the unlawful acts
described above (i.e., violence against detainees, or humiliating or degrading treatment, or
biological or medical experiments) are also prohibited. 37 This prohibition may be understood toarise separately (i.e., as a distinct prohibition against certain threats), or it may be understood toresult when such threats themselves constitute a form of torture or other abuse. 38
8.2.5 Duty to Protect Detainees. Detainees should be protected not only against unlawfulacts by agents of the Detaining Power, but also against unlawful acts from others, including otherdetainees or the civilian population. 39
8.2.6 No Adverse Distinction. Detainees shall be treated humanely without any adverse
distinction founded on race, color, religion or faith, sex, birth or wealth, national or social origin,political or other opinion, or any other similar criteria. 40

36

See Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines, ¶2.1 (“[The principle
requiring humane treatment of detainees] also incorporates the prohibition against torture and other forms of cruel,inhuman or degrading treatment or punishment, the prohibition against corporal and collective punishment andmedical experiments; and includes threats to commit the foregoing acts.”). Compare § 9.5.2.4 (No Physical
Mutilation or Medical, Scientific, or Biological Experiments); § 10.5.1.1 (Measures of Physical Suffering,
Extermination, or Other Brutality).
37

Consider AP I art. 75(2)(e) (prohibiting with respect to persons who are in the power of a Party to the conflict“[t]hreats to commit any of the foregoing acts,” which include “(a) Violence to the life, health, or physical or mental
well-being of persons, in particular: (i) Murder; (ii) Torture of all kinds, whether physical or mental; (iii) Corporalpunishment; and (iv) [Mutilation]; (b) Outrages upon personal dignity, in particular humiliating and degrading
treatment, enforced prostitution and any form of indecent assault;”); AP II art. 4(2)(h) (prohibiting with respect topersons who do not take a direct part or who have ceased to take part in hostilities “[t]hreats to commit any of theforegoing acts,” which include (a) violence to the life, health and physical or mental well-being of persons, inparticular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment and (b)outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution andany form of indecent assault).

38

See, e.g., 18 U.S.C. § 2340 (defining “torture” to include “severe mental pain or suffering” caused by or resulting
from “(A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the
administration or application, or threatened administration or application, of mind-altering substances or otherprocedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D)the threat that another person will imminently be subjected to death, severe physical pain or suffering, or theadministration or application of mind-altering substances or other procedures calculated to disrupt profoundly thesenses or personality;”) (emphasis added).
39

Compare § 9.5.2 (Protection Against Acts of Violence or Intimidation).

40

GWS art. 3 (“Persons taking no active part in the hostilities, including members of armed forces who have laid
down their arms and those 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.”); GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3 (same).
Consider AP I art. 75(1) (“In so far as they are affected by a situation referred to in Article 1 of this Protocol,
persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under
the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as aminimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex,
language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on
any other similar criteria.”); AP II art. 2(1) (“This Protocol shall be applied without any adverse distinction founded

516

Special consideration for more vulnerable categories of detainees is consistent with therequirement that detainees must be humanely treated without adverse distinction. 41
Distinction based on the above criteria may also be made so long as it is not adverse andit is made to advance legitimate interests, such as maintaining order in the camp. 42
8.3 SECURITY MEASURES
8.3.1 Searches. Although detainees must always be treated humanely, detainees and theirproperty may be searched and secured, when necessary for security reasons and intelligence
purposes. 43
The dignity and honor of the detainee being searched should be protected to the greatest
degree possible under the circumstances. 44 The person conducting the search should avoid doingor saying anything likely to be regarded as indecent. In some circumstances, it may beappropriate for a witness to observe the search so as to protect both the person being searchedfrom abuse and the person conducting the search from unfounded accusations of abuse.
8.3.1.1 Search of Female Detainees. It is appropriate for female detainees to be
searched by female personnel. This practice helps reduce the risk of accusations of indecent
behavior.
8.3.2 Search of Detainee Property. Items in the possession of detainees may be removed
and searched for security and intelligence purposes. 45
8.3.3 Securing Detainees With Handcuffs and Other Security Devices. When necessary
for security reasons, detainees may be secured temporarily with handcuffs, flex cuffs, blindfolds,
or other security devices. 46

on race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth orother status, or on any other similar criteria (hereinafter referred to as ‘adverse distinction’) to all persons affected byan armed conflict as defined in Article 1.”).
41

See also Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines, ¶2.4 (“The principleof humane treatment of all persons requires that special consideration be given to the treatment of detainees who
may be vulnerable in this context, such as women, children, the aged and those with disabilities. Such special
consideration is consistent with the requirement that detainees should be humanely treated without adverse
distinction.”).
42

Compare § 7.5.1 (Humane Treatment of the Wounded, Sick, and Shipwrecked Without Adverse Distinction);§ 9.5.5 (No Adverse Distinction Based on Race, Nationality, Religion, or Political Belief); § 10.5.5 (No Adverse
Distinction Based on Race, Religion, or Political Opinion).
43

Compare § 9.6 (Security Measures With Respect to POWs).

44

Refer to § 10.5 (Humane Treatment and Other Basic Protections for Protected Persons).

45

Refer to § 10.18.2 (Articles of Personal or Sentimental Value).

46

See also Copenhagen Process: Principles and Guidelines, ¶2.2 (“Sensory deprivation of persons who aredetained may in some circumstances amount to ill-treatment if used as a form of punishment or to inflict suffering.
However, sensory deprivation may not in itself amount to ill-treatment as such if the purpose is to ensure the safetyof the detainee or of others. For example, using earmuffs during transportation to protect a detainee’s hearing will517

8.3.4 Use of Force to Maintain Order and to Prevent Escape. Physical force is not to be
used against a detained person except in circumstances where such force is necessary andproportionate. 47
As with POWs, the use of weapons against detainees, especially against those who areescaping or attempting to escape, shall constitute an extreme measure, which shall always be
preceded by warnings appropriate to the circumstances. 48 For example, detainees should not be
fired upon if they are apprehended within the camp limits while making preparations to escape,and there is no risk of escape or harm to anyone.
8.3.4.1 Use of Non-Lethal Weapons (Including Riot Control Agents). Non-lethal
weapons may be employed to control rioting detainees or to prevent their escape. In particular,
the use of riot control agents to control rioting detainees is not prohibited. 49
If the use of deadly force is warranted and authorized against detainees, there is no legal
requirement to employ non-lethal weapons before resort to deadly force. 50
8.4 INTERROGATION
The law of war does not prohibit interrogation of detainees, but interrogation must be
conducted in accordance with the requirements for humane treatment.
8.4.1 Humane Treatment During Interrogation. Interrogation must be carried out in amanner consistent with the requirements for humane treatment, including the prohibitions against
torture, cruelty, degrading treatment, and acts or threats of violence. 51
In addition to the legal prohibitions on torture or other illegal methods of interrogation,practical considerations have also strongly counseled against such methods. 52

not amount to ill-treatment. Similarly, sensory deprivation undertaken as a reasonable security measure such as
blindfolding temporarily a detainee to protect the identity of another detainee or for reasons of operational safety
will not amount to ill-treatment.”). Compare § 9.6.2 (Securing POWs With Handcuffs and Other Security Devices).
47

See Copenhagen Process: Principles and Guidelines, ¶6 (“Physical force is not to be used against a detained
person except in circumstances where such force is necessary and proportionate.”).
48

Compare § 9.22.6 (Use of Force to Maintain Order and to Prevent Escape).

49

Refer to § 6.16.2 (Prohibition on Use of Riot Control Agents as a Method of Warfare).

50

Refer to § 6.5.10.5 (No Requirement to Use Non-Lethal Weapons Before Using Lethal Weapons Where Deadly
Force Is Warranted).
51

Refer to § 8.2 (Humane Treatment of Detainees).

52

For example, DEPARTMENT OF THE ARMY FIELD MANUAL 34-52, Intelligence Interrogation, 1-8 (Sept. 28, 1992)(“Experience indicates that the use of prohibited techniques is not necessary to gain the cooperation of interrogation
sources. Use of torture and other illegal methods is a poor technique that yields unreliable results, may damage
subsequent collection efforts and can induce the source to say what he thinks the interrogator wants to hear.
Revelation of use of torture by US personnel will bring discredit upon the US and its armed forces while
undermining domestic and international support for the war effort. It also may place US and allied personnel inenemy hands at a greater risk of abuse by their captors.”).

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8.4.2 Additional U.S. Law and Policy on Interrogation. U.S. law and policy impose
additional requirements on the interrogation of detainees.
8.4.2.1 Only Treatment or Techniques of Interrogation Authorized by and Listed
in the U.S. Army Field Manual on Intelligence Interrogation. No person in the custody or underthe effective control of the Department of Defense or under detention in a Department of
Defense facility shall be subject to any treatment or technique of interrogation not authorized byand listed in the United States Army Field Manual on Intelligence Interrogation. 53 The Armyhas published field manuals on interrogation for many years. 54
8.5 ADEQUATE FOOD, DRINKING WATER, AND CLOTHING
Detainees shall be provided with adequate food, drinking water, and clothing.
8.5.1 Food for Detainees. Daily food rations for detainees shall be sufficient in quantity,
quality, and variety to keep detainees in a good state of health or in any event no worse than thatafforded the local civilian population. 55
8.5.1.1 Accounting for the Customary Diet. DoD practice has been to takeaccount of the customary diet of the internees. 56 For example, the detainee’s cultural andreligious requirements have been considered in determining and ensuring the appropriate diet.
8.5.2 Drinking Water. Sufficient drinking water shall be supplied to detainees. 57
8.5.3 Clothing. As needed, detainees shall be supplied with sufficient clothing,underwear, and footwear that is appropriate for the climate. 58
8.6 GENERAL CONDITIONS OF DETENTION FACILITIES
Detainees shall be afforded, to the same extent as the local civilian population, safeguards
as regards health and hygiene and protection against the rigors of the climate and the dangers of
53
PUBLIC LAW 109-163, § 1402(a) (Jan. 6, 2006), codified at 10 U.S.C. § 801 note (“No person in the custody or
under the effective control of the Department of Defense or under detention in a Department of Defense facility
shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army
Field Manual on Intelligence Interrogation.”); PUBLIC LAW 109-148, § 1002(a) (Dec. 30, 2005), codified at 10
U.S.C. § 801 note (same).
54

For example, DEPARTMENT OF THE ARMY FIELD MANUAL 2-22.3, Human Intelligence Collector Operations (Sept.
6, 2006); DEPARTMENT OF THE ARMY FIELD MANUAL 34-52, Intelligence Interrogation (Sept. 28, 1992);
DEPARTMENT OF THE ARMY FIELD MANUAL 34-52, Intelligence Interrogation (May 8, 1987).

55

Consider AP II art. 5(1)(b) (“The persons referred to in this paragraph shall, to the same extent as the local
civilian population, be provided with food and drinking water and be afforded safeguards as regards health andhygiene and protection against the rigours of the climate and the dangers of the armed conflict;”). Compare § 9.13.1(Food for POWs); § 10.13.1 (Food for Internees).

56

Compare § 9.13.1.1 (Accounting for the Habitual Diet); § 10.13.1.1 (Accounting for the Customary Diet).

57

Compare § 9.13.2 (Drinking Water); § 10.13.2 (Drinking Water).

58

Compare § 9.13.4 (Clothing for POWs); § 10.13.4 (Clothing of Internees).

519

the armed conflict. 59
8.6.1 Safeguards as Regards Health and Hygiene. The obligation to afford safeguards as
regards health and hygiene would include taking sanitary measures necessary to ensure thecleanliness and healthfulness of camps and to prevent epidemics. For example, the DoD practicehas been to give detainees medical examinations upon arrival at an internment facility, disinfectthem, and provide them with any necessary inoculations. In addition, quarters should be kept
free from vermin, and detainees suffering from contagious diseases should be placed inquarantine as needed. 60
8.6.2 Protection Against the Rigors of Climate. The obligation to afford protection
against the rigors of climate would include ensuring that detention facilities are adequately
heated, lighted, and protected against dampness. 61
8.6.3 Protection From the Dangers of Armed Conflict. Detention facilities shall not belocated close to the combat zone. 62
8.6.4 No Prohibition Against Detention Aboard Ships. Provided the above requirements
are met, there is no prohibition against the humane detention of persons on ships. 63 The GPW
generally requires that POWs be interned on premises located on land. 64
8.7 SEGREGATION OF DETAINEES
Detainees may be segregated into camps or camp compounds according to theirnationality, language, and customs, and the Detaining Power may use other criteria to segregate
detainees for administrative, security, intelligence, medical, or law enforcement purposes. 65
8.7.1 Gender and Family Segregation. Except when men and women of a family areaccommodated together, women shall be held in quarters separated from those of men and shall

59

Consider AP II art. 5(1)(b) (“The persons referred to in this paragraph shall, to the same extent as the local
civilian population, be provided with food and drinking water and be afforded safeguards as regards health andhygiene and protection against the rigours of the climate and the dangers of the armed conflict;”).

60

Compare § 9.11.5.1 (Necessary Sanitary Measures).

61

Compare § 10.11.3 (Conditions of Buildings and Quarters).

62

Consider AP II art. 5(2)(c) (“Places of internment and detention shall not be located close to the combat zone.”).
Compare § 9.11.4.1 (Avoidance of the Combat Zone); § 10.11.1.1 (Avoidance of Particularly Dangerous Areas).
63

For example, Charlie Savage, U.S. Tests New Approach to Terrorism Cases on Somali Suspect, THE NEW YORKTIMES, Jul. 6, 2011 (“In interrogating a Somali man for months aboard a Navy ship before taking him to New York
this week for a civilian trial on terrorism charges, the Obama administration is trying out a new approach for dealing
with foreign terrorism suspects. … The administration notified the International Committee of the Red Cross of his
capture, and a Red Cross representative flew out to the ship and met with him. That visit came about two months
after his capture, during a four-day break between his interrogation for intelligence purposes and separate
questioning for law-enforcement purposes.”).
64

Refer to § 9.11.3.1 (Location on Land).

65

Compare § 9.12 (Segregation of POWs); § 10.10 (Segregation of Internees).

520be under the immediate supervision of women. 66
8.8 MEDICAL ATTENTION
Wounded and sick detainees shall be cared for. 67 They should receive the medical care
and attention required by their condition. 68 Medical or biological experiments on detainees areprohibited. 69
8.8.1 Consent. Medical care should, wherever possible, be undertaken with the consent
of the wounded or sick detainee. 70 However, medical actions to preserve the health of thedetainee may be justified even where the detainee refuses to provide consent. 71 For example, it
is not prohibited to administer vaccinations to detainees in order to preserve their health and toprevent epidemics. Similarly, it is not prohibited to order detainees to be fed, if they undertake ahunger strike. 72
8.8.2 Blood Donation and Skin Grafting. Detainees may voluntarily consent to give
blood for transfusion or skin for grafting for therapeutic purposes; such procedures should takeplace under conditions consistent with generally accepted medical standards and controls

66

Consider AP II art. 5(2) (“Except when men and women of a family are accommodated together, women shall beheld in quarters separated from those of men and shall be under the immediate supervision of women;”); AP I art.
75(5) (“Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters
separated from men’s quarters. They shall be under the immediate supervision of women. Nevertheless, in cases
where families are detained or interned, they shall, whenever possible, be held in the same place and accommodated
as family units.”).

67

GWS art. 3 (“The wounded and sick shall be collected and cared for.”); GWS-SEA art. 3 (same); GPW art. 3(same); GC art. 3 (same). Compare § 7.5 (Humane Treatment and Care of Enemy Military Wounded, Sick, andShipwrecked in the Power of a Party to the Conflict); § 7.16 (Protection of Civilians Who Are Wounded, Sick,
Infirm, or Expectant Mothers).
68

See, e.g., Copenhagen Process: Principles and Guidelines ¶9 (“Wounded and sick detainees are to receive themedical care and attention required by their condition.”).
69

Refer to § 8.2.3 (Prohibition Against Biological or Medical Experiments).

70

For example, DOD INSTRUCTION 2310.08E, Medical Program Support for Detainee Operations, ¶4.7 (Jun. 6,
2006) (“In general, health care will be provided with the consent of the detainee. To the extent practicable,
standards and procedures for obtaining consent will be consistent with those applicable to consent from other
patients. Standard exceptions for lifesaving emergency medical care provided to a patient incapable of providing
consent or for care necessary to protect public health, such as to prevent the spread of communicable diseases, shallapply.”).

71

See Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines, ¶9.5 (“Medical assistanceshould, wherever possible, be undertaken with the consent of the wounded or sick detainee. However, medical
actions to preserve the health of the detainee may be justified even where the detainee refuses to provide consent.”).
Compare § 7.5.2.4 (Compulsory Medical Treatment).
72

For example, DOD INSTRUCTION 2310.08E, Medical Program Support for Detainee Operations, ¶4.7.1 (Jun. 6,
2006) (“In the case of a hunger strike, attempted suicide, or other attempted serious self-harm, medical treatment orintervention may be directed without the consent of the detainee to prevent death or serious harm. Such action must
be based on a medical determination that immediate treatment or intervention is necessary to prevent death orserious harm, and, in addition, must be approved by the commanding officer of the detention facility or otherdesignated senior officer responsible for detainee operations.”).

521

designed for the benefit of both the donor and the recipient. 73
8.9 ADMINISTRATION AND DISCIPLINE IN DETENTION FACILITIES
Detention facility commanders may establish rules for detainees in the detention facility
and conduct disciplinary proceedings, subject to the requirements for humane treatment. 74
8.9.1 Complaints. Detainees should be permitted to submit, without reprisal, complaints
regarding their treatment or conditions of detention to the detaining authorities. 75 Investigatory
procedures and a practice of timely and effective investigations of credible complaints ofmaltreatment also help ensure that allegations regarding treatment or conditions of detention that
may arise years after the detention can be addressed. 76
8.10 CONTACTS WITH THE OUTSIDE WORLD
Subject to security measures, practical considerations, and other military necessities,
detainees should be afforded appropriate contact with the outside world, including: (1) receipt ofindividual or collective relief; (2) correspondence; (3) communication with family; and (4) ICRC
access.
8.10.1 Receipt of Individual or Collective Relief. Detainees shall be allowed to receive
individual or collective relief. 77
8.10.2 Correspondence. Detainees shall be allowed to send and receive letters and cards,

73

Consider AP I art. 11 (“3. Exceptions to the prohibition in paragraph 2 (c) [against removal of tissue or organs fortransplantation except where these acts are justified] may be made only in the case of donations of blood fortransfusion or of skin for grafting, provided that they are given voluntarily and without any coercion or inducement,
and then only for therapeutic purposes, under conditions consistent with generally accepted medical standards andcontrols designed for the benefit of both the donor and the recipient.”).

74

Compare § 9.27 (Disciplinary Proceedings and Punishment); § 10.28 (Disciplinary Proceedings and Punishment).

75

See Copenhagen Process: Principles and Guidelines ¶14 (“Detainees or their representatives are to be permitted
to submit, without reprisal, oral or written complaints regarding their treatment or conditions of detention. All
complaints are to be reviewed and, if based on credible information, be investigated by the detaining authority.”).
Compare § 9.23.1 (POW Right to Make Requests and Complaints); § 10.21.1 (Internee Right to Present Petitions
and Complaints).
76

See also Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines, ¶14.2 (“Theinvestigation of complaints permits the detaining authority to verify the validity of the complaint and, if verified, to
rectify the situation giving rise to the complaint. Investigatory procedures and a practice of timely and effective
investigations of credible complaints also helps ensure that allegations regarding treatment or conditions ofdetention that may arise years after the detention can be addressed. An independent and impartial authority should
carry out such investigations, and the results of an investigation should be reported back to the complainant and thedetaining authority. The investigator may be members of the military and should make recommendations based on
the investigation it has carried out.”).
77

Consider AP II art. 5(1)(c) (“They shall be allowed to receive individual or collective relief;”).

522

the number of which may be limited by a competent authority if it deems necessary. 78
8.10.3 Communication With Family. DoD practice has been, where practicable, to grantdetainees the means to communicate with family members (e.g., exchange of letters, phone calls,
and video teleconferences with family, family visits). 79
8.10.4 ICRC Access to Detainees. An impartial humanitarian body, such as the ICRC,
may offer its services to the parties to the conflict. 80
All departments and agencies of the Federal Government shall provide the International
Committee of the Red Cross with notification of, and timely access to, any individual detained inany armed conflict in the custody or under the effective control of an officer, employee, or otheragent of the U.S. Government or detained within a facility owned, operated, or controlled by a
department or agency of the U.S. Government, consistent with Department of Defense
regulations and policies. 81
8.11 RELIGIOUS EXERCISE
Detainees shall be granted free exercise of religion, consistent with the requirements ofdetention. 82 Detainees’ religious practices shall be respected. 83 They shall be allowed to78

Consider AP II art. 5(2)(b) (“They shall be allowed to send and receive letters and cards, the number of which
may be limited by competent authority if it deems necessary;”). Compare § 9.20.2 (POW Correspondence Rights
and Quota); § 10.23.2 (Internees’ Correspondence Rights and Quota).
79

For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3b(1) (Aug. 19, 2014) (“Humane treatment
includes: … (b) … appropriate contacts with the outside world (including, where practicable, exchange of letters,
phone calls, and video teleconferences with immediate family or next of kin, as well as family visits).”). Compare§ 9.20.2.3 (More Rapid Means of Correspondence in Appropriate Cases); § 10.23.2.3 (More Rapid Means ofCorrespondence in Appropriate Cases).
80

GWS art. 3 (“An impartial humanitarian body, such as the International Committee of the Red Cross, may offer
its services to the Parties to the conflict”); GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3 (same).

81

Executive Order 13491, Ensuring Lawful Interrogations, §4(b), 74 FEDERAL REGISTER 4893, 4894 (Jan. 22, 2009)(“All departments and agencies of the Federal Government shall provide the International Committee of the Red
Cross with notification of, and timely access to, any individual detained in any armed conflict in the custody or
under the effective control of an officer, employee, or other agent of the United States Government or detained
within a facility owned, operated, or controlled by a department or agency of the United States Government,
consistent with Department of Defense regulations and policies.”).
82

For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3b (Aug. 19, 2014) (“All detainees will betreated humanely and with respect for their dignity, in accordance with applicable U.S. law and policy and the lawof war. The humane treatment requirements in this section apply during all military operations, however
characterized. (1) Humane treatment includes: … (e) Free exercise of religion, consistent with the requirements ofdetention.”); DOD DIRECTIVE 2310.01E, The Department of Defense Detainee Program, ¶E4.1.1 (Sept. 5, 2006)(“All persons captured, detained, interned, or otherwise in the control of DoD personnel during the course of
military operations will be given humane care and treatment from the moment they fall into the hands of DoD
personnel until release, transfer out of DoD control, or repatriation, including: … E4.1.1.2. Free exercise of religion,
consistent with the requirements of detention;”). Compare § 9.15 (Religious Exercise by POWs); § 10.15 (Religious
Exercise by Internees).
83

Consider AP I art. 75(1) (“Each Party shall respect the person, honour, convictions and religious practices of all
such persons.”).

523

practice their religion and, if requested and appropriate, to receive spiritual assistance frompersons, such as chaplains, performing religious functions. 84
DoD practice has been for detainees to be provided religious materials of their faith (e.g.,
copies of religious texts) as well as time and other accommodations for religious exercise. 85
8.12 INTELLECTUAL, PHYSICAL, AND RECREATIONAL ACTIVITIES
Detainees should be provided with reasonable access to intellectual, physical, andrecreational activities. 86 Such opportunity is increasingly important as detention occurs forlonger periods of time.
Access to additional facilities for intellectual, physical, and recreational activities may bemade contingent on compliance with camp rules. 87 Education programs may be offered to
discourage violent extremism. 88

84

Consider AP II art. 5(1)(d) (“They shall be allowed to practise their religion and, if requested and appropriate, toreceive spiritual assistance from persons, such as chaplains, performing religious functions;”).

85

For example, Admiral Patrick Walsh et al., Department of Defense, Review of Department Compliance with
President’s Executive Order on Detainee Conditions of Confinement, 25 (2009) (“All detainees [at Guantanamo] areprovided one Koran in the language of their choice, in addition to an Arabic Koran and TafSeer. All detainees areprovided prayer beads, cap, rug, and current prayer schedule. These items are retained by all detainees regardless of
disciplinary status, unless deliberately used for self-harm or as a weapon. … Guards observe silence during all
prayer times. A monthly prayer schedule is published and call to prayer is sounded five times daily in all camps.
Prayer is led within each camp and block by a detainee-selected prayer leader. In Camps 2, 3, 5, 6, and Echo groupprayer is typically conducted by detainees from their individual cells. When this occurs, the food tray access doorsof the prayer leaders are lowered to facilitate call to prayer on each block/tier. At times when detainees are engaged
in group or communal activities and prayer call sounds, prayer is led by prayer leaders in person. In Camps 4 andIguana, group prayer is conducted in communal areas of the camps. At Camp 7, prayer is conducted individually intheir cells. Guard movement and activity is limited to only those actions required to maintain security. Visualsignals are placed on each block/tier signifying quiet time. Each detainee cell and common area includes an arrow
pointing towards Mecca.”).
86

For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3b(1) (Aug. 19, 2014) (“Humane treatment
includes: … (b) Reasonable access to the open air, reasonable educational and intellectual activities, … .”);
Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines, ¶9.3 (“Health and hygiene factorsthat need to be addressed include … ensuring that detainees are permitted to engage in exercise regimes, includingin the open air, … .”). Compare § 9.16 (Intellectual, Physical, and Recreational Activities); § 10.16 (Intellectual,
Physical, and Recreational Activities).
87

For example, Admiral Patrick Walsh et al., Department of Defense, Review of Department Compliance with
President’s Executive Order on Detainee Conditions of Confinement, 11 (2009) (“Camp 4 [at Guantanamo], firstoccupied in February 2003, offers communal living, numerous recreation facilities, education and intellectual
stimulation programs, and houses detainees considered the most compliant with camp rules. Unlike other camps,
Camp 4 offers communal living in open-bay barracks with open access to fresh air in outdoor recreation andcommunal facilities throughout the day. It includes additional access to large recreation areas equipped with abasketball court, volleyball court, and soccer facility, during a specified four-hour period each day. Camp 4 has amedia center equipped with satellite television, bench seating, and a classroom used to teach literacy and art.”).
88

For example, Charles A. Allen, Deputy General Counsel, Department of Defense, Alternatives to Prosecution for
War Crimes in the War on Terrorism, 17 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS 121, 137 (2008)(“For persons in detention in Iraq, MNF-I [Multi-National Force-Iraq] has a reintegration program to try to influencedetainees not to join or rejoin the insurgency, but rather to reintegrate peacefully into society. This effort focuses on524

8.13 ADEQUATE WORKING CONDITIONS
If made to work, detainees shall have the benefit of working conditions and safeguards
similar to those enjoyed by the local civilian population. 89
8.13.1 Prohibition on Slavery. Slavery and the slave trade in all their forms areprohibited. 90 For example, enforced prostitution is prohibited. 91
8.14 PROCEDURES FOR DETENTION
8.14.1 Informing of Reasons for Detention. Detainees shall be informed promptly of thereasons for their detention in a language that they understand. 92
A prompt notification should generally occur within 10 days of detention. 93 The
notification should ensure that the detainee adequately understands the general reason for
detention (e.g., security reasons, participation in hostilities or association with an armed groupthat is engaged in hostilities, suspect or witness in law enforcement proceedings). 94 Whenfeasible, more specific information should be provided to the detainee so that he or she may
participate in subsequent review procedures from an informed position. 95

education. Detainees are provided access to moderate television, radio, and newspaper alternatives to extremist
messages. The reintegration program for adults includes instruction in reading, writing, and mathematics. The
program for juveniles includes both primary and secondary school instruction. In addition, detainees are offeredclasses on democracy, the Iraqi constitution, and the Iraqi government.”).
89

Consider AP II art. 5(1) (Persons deprived of their liberty for reasons related to an non-international armed
conflict “shall, if made to work, have the benefit of working conditions and safeguards similar to those enjoyed by
the local civilian population.”).
90

Consider AP II art. 4(2)(f) (prohibiting “slavery and the slave trade in all their forms;”).

91

Refer to § 8.2.2.1 (Protection Against Rape, Enforced Prostitution, and Other Indecent Assault).

92

See Copenhagen Process: Principles and Guidelines, ¶7 (“Persons detained are to be promptly informed of thereasons for their detention in a language that they understand.”). Consider AP I art. 75(3) (“Any person arrested,detained or interned for actions related to the armed conflict shall be informed promptly, in a language heunderstands, of the reasons why these measures have been taken.”).
93

ICRC AP COMMENTARY 876 (¶3072) (“‘Promptly’: unfortunately this expression is rather imprecise. … [I]t isdifficult to determine a precise time limit, but ten days would seem the maximum period.”).

94

See Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines ¶1.3 (“A person may bedetained for a number of different reasons, including, posing a threat to the security of the military operation, forparticipating in hostilities, for belonging to an enemy organised armed group, for his or her own protection, or if theperson is accused of committing a serious criminal offence.”).
95

See also Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines, ¶7.1 (“Informing thedetainee of the reasons for detention seeks to ensure that the detainee adequately understands the basis of detention,and enables the detainee’s participation in subsequent review procedures from an informed position. To the fullest
extent feasible the reasons for detention should provide the detainee with information regarding the circumstancesthat form the basis for detention. Operational necessities or resource constraints, such as force protection or theavailability of interpreters, may sometimes make it difficult to advise the detainee of the specific reasons for thedetention at the precise moment of detention. The term ‘promptly’ is used to suggest that detainees should be
advised of the reasons for detention in a reasonable time, taking into account other essential tasks and resource
limitations that may affect the detaining authority’s ability to inform the detainee. When feasible, more specific5258.14.2 Review of Continued Detention for Security Reasons. DoD practice has been toreview periodically the detention of all persons not afforded POW status or treatment. 96 A
detainee who has been deprived of liberty for security reasons is to have, in addition to a prompt
initial review, the decision to detain reconsidered periodically by an impartial and objective
authority that is authorized to determine the lawfulness and appropriateness of continued
detention. 97
The authority conducting the review is not necessarily outside the military, and often
would be a military commander. 98
There is no fixed requirement regarding how often the review must occur, and the period
between reviews will depend on a variety of factors, including: (1) operational necessities orresource constraints, such as force protection, the availability of interpreters, or large numbers ofdetainees; (2) the thoroughness of the review process; and (3) whether there is a true prospectthat the legal or factual predicates justifying detention have changed. 99
8.14.3 Release When the Circumstances Justifying Detention Have Ceased to Exist.
information should be provided to the detainee so that he or she may participate in subsequent review proceduresfrom an informed position.”).
96

For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3i (Aug. 19, 2014) (“DoD personnel will
review periodically the detention of all individuals in DoD custody or control who do not receive the protections
afforded POWs.”); DOD DIRECTIVE 2310.01E, The Department of Defense Detainee Program, ¶4.8 (Sept. 5, 2006)(“Detainees under DoD control who do not enjoy prisoner of war protections under the law of war shall have thebasis for their detention reviewed periodically by a competent authority.”).

97

See Copenhagen Process: Principles and Guidelines ¶12 (“A detainee whose liberty has been deprived for
security reasons is to, in addition to a prompt initial review, have the decision to detain reconsidered periodically by
an impartial and objective authority that is authorised to determine the lawfulness and appropriateness of continued
detention.”). Compare § 10.9.2.3 (Reconsideration and Periodic Review); § 10.9.3.1 (Internment or Assigned
Residence for Imperative Reasons of Security).
98

See also Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines ¶12.2 (“The ‘authority’
conducting the review must be objective and impartial but not necessarily outside the military. Although there is norequirement for the authority to be a judge or lawyer, he or she should be supported by a legal adviser. The
authority must have sufficient information available to make an assessment of the legality and propriety ofcontinued detention; and must consider both the legal and factual basis for detention. The authority must also beable to evaluate the relevant information and make relevant conclusions such as whether the detainee continues toconstitute a threat to security. Furthermore, the authority must make decisions based on the circumstances of eachspecific case; and each decision must be taken with respect to the individual involved. The authority must havesufficient freedom to make a good faith judgment without any outside interference. In order for the review to beeffective it is necessary that the reviewing authority has the power to determine the lawfulness and appropriatenessof continued detention of the detainee.”).
99

See also Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines ¶12.3 (“Security
detainees are to have their continued detention reviewed periodically or, where practicable, when new information
becomes available. It is, however, difficult to provide a precise time limit to indicate when the decision to detain
should be reconsidered or further reviewed. Operational necessities or resource constraints, such as force protection,
the limited availability of interpreters or large case-loads of review sometimes make it difficult to reconsider thedecision to detain frequently or at short intervals. Reviews should, however, occur as often as necessary, generally
every six months. The length of time between reviews may also depend on the thoroughness of the review process
and on whether there is a true prospect that the legal or factual predicates justifying detention have changed. Morethorough reviews may require more resources and take place over longer intervals.”).

526

Except in cases of arrest or detention for penal offenses, such persons shall be released with theminimum delay possible and in any event as soon as the circumstances justifying the arrest,
detention, or internment have ceased to exist. 100
8.14.3.1 Participants in Hostilities or Persons Belonging to Armed Groups That
Are Engaged in Hostilities. For persons who have participated in hostilities or belong to armed
groups that are engaged in hostilities, the circumstance that justifies their continued detention isthe continuation of hostilities. 101 Thus, release of such persons is generally only required after
the conflict has ceased. 102 As a matter of policy, release of lawfully detained persons often
occurs before the conclusion of hostilities. 103
However, even after hostilities have ceased, other circumstances may warrant continued
detention of such persons. For example, persons who have participated in hostilities on behalf of
non-State armed groups might be detained pending law enforcement proceedings and, after aconviction, pursuant to a lawful sentence. 104
8.14.3.2 Safe and Orderly Release. If it is decided to release persons deprived of
their liberty, necessary measures to ensure their safety shall be taken by those so deciding. 105
For example, detainees should not be released into a situation in which the detainee would be
attacked by hostile elements upon release. 106

100

Consider AP I art. 75(3) (“Except in cases of arrest or detention for penal offences, such persons shall be released
with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention orinternment have ceased to exist.”). Compare § 9.37 (Release and Repatriation After Hostilities); § 10.9.5 (Release
As Soon As Reasons for Internment No Longer Exist).
101

See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004) (plurality) (“we understand Congress’ grant of authority[under the AUMF] for the use of ‘necessary and appropriate force’ to include the authority to detain for the durationof the relevant conflict, and our understanding is based on longstanding law-of-war principles.”); Al-Bihani v.
Obama, 590 F.3d 866, 874 (2010) (rejecting the argument that Taliban fighters must be released because the conflict
had formally concluded as a principle that “would make each successful campaign of a long war but a Pyrrhic
prelude to defeat” and under which “the victors would be commanded to constantly refresh the ranks of the fledgling
democracy’s most likely saboteurs.”). Cf. Stewart v. Kahn, 78 U.S. 493, 507 (1870) (“In the latter case, the [war]power is not limited to victories in the field and the dispersion of the insurgent forces. It carries with it inherently
the power to guard against the immediate renewal of the conflict and to remedy the evils which have arisen from its
rise and progress.”).
102

Compare § 9.37 (Release and Repatriation After Hostilities).

103

For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3m(2) (Aug. 19, 2014) (“Unprivileged
belligerents may be released or transferred while active hostilities are ongoing if a competent authority determinesthat the threat the individual poses to the security of the United States can be mitigated by other lawful means. Suchmitigation may involve credible assurances that a receiving country will take appropriate steps to mitigate any threat
the detainee poses to the security of the United States and its interests, parole agreements by the detainee, or otheragreements with the government of the receiving State.”).

104

Compare § 9.37.4.3 (POWs Undergoing Criminal Proceedings for an Indictable Offense).

105

Consider AP II art. 5(4) (“If it is decided to release persons deprived of their liberty, necessary measures toensure their safety shall be taken by those so deciding.”).
106

See Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines ¶4.10 (“Detaining
authorities are to ensure that necessary measures are taken to ensure the safety of released detainees. For example, a527

The obligation to release detainees in a safe and orderly manner, as well as operational
necessities (e.g., force protection) and logistical constraints (e.g., the limited availability oftransport), may make it difficult to release a detainee at the precise moment that thecircumstances justifying detention cease. 107 Continued detention in order to facilitate a safe andorderly release may be necessary. 108
8.14.4 Transfers of Detainees. Because the transfer of a detainee from U.S. custody toanother entity or State may implicate certain U.S. legal obligations or policies, detainees should
not be transferred to another State or entity without proper authorization. 109
8.14.4.1 U.S. Policy Prohibiting Transfers in Cases in Which Detainees Would
Likely Be Tortured. U.S. policy provides that no person shall be transferred to another State if it
is more likely than not that the person would be tortured in the receiving country, regardless ofwhether the person is physically present in the United States or whether such transfer would
otherwise be consistent with applicable law. 110
8.15 NATIONAL ACCOUNTABILITY FOR DETENTION
A proper accounting of detainees is an important part of a State’s implementation of therequirements of humane treatment.
8.15.1 Registration of Detainees. The detaining authority should register detainees

detainee is not to be released in a location where the conditions are such that the detainee may be threatened or
attacked by hostile or malign elements upon release.”).
107

See Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines ¶4.8 (“It is difficult toprovide a precise time limit to indicate how soon a detainee should be released after the circumstances justifying
detention have ceased to exist. Operational necessities, such as force protection, the safety of a detainee, or thelimited availability of transport sometimes make it difficult to release a detainee at the precise moment that thecircumstances justifying detention cease.”).
108

Compare § 9.37.3 (Without Delay).

109

For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3m (Aug. 19, 2014) (“No detainee will be
released, repatriated, or transferred out of DoD custody or control except in accordance with applicable law,regulation, policy, and other issuances.”); DOD DIRECTIVE 2310.01E, The Department of Defense Detainee
Program, ¶4.6 (Sept. 5, 2006) (“No detainee shall be released or transferred from the care, custody, or control of a
DoD Component except in accordance with applicable law, regulation, policy, and other issuances.”).

110

See, e.g., Munaf v. Geren, 553 U.S. 674, 702 (2008) (“Indeed, the Solicitor General states that it is the policy of
the United States not to transfer an individual in circumstances where torture is likely to result.”); PUBLIC LAW 105277, § 2242(a) (Oct. 21, 1998), codified at 8 U.S.C. § 1231 note (“It shall be the policy of the United States not to
expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial
grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person
is physically present in the United States.”). One of the formal understandings of the United States made uponratification of the Convention Against Torture provided that “the United States understands the phrase, ‘where there
are substantial grounds for believing that he would be in danger of being subjected to torture,’ as used in article 3 of
the Convention, to mean ‘if it is more likely than not that he would be tortured.’” United States, Statement on
Ratification of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Dec. 10, 1984, Oct. 21, 1994, 1830 UNTS 320, 322.

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promptly. 111 Detainees should be registered within a reasonable time, taking into account otheressential tasks and resource limitations that may affect the detaining authority’s ability to register
detainees. 112
Registration of detainees assists in ensuring that all detainees can be accounted for andthat allegations of illegal detention can be addressed. 113 DoD practice has been to register
detainees with the National Detainee Reporting Center that is also used to account for thedetention of POWs under the GPW and protected persons under the GC. 114
8.15.2 Records of Detainee Property. DoD practice has been for property in thepossession of detainees to be inventoried, and for records of such property to be maintained inorder to maintain accountability of it (e.g., to prevent theft) and to ensure its lawful
disposition. 115
8.16 CRIMINAL PROCEDURE AND PUNISHMENT
The passing of sentences and the carrying out of executions without previous judgment
pronounced by a regularly constituted court affording all the judicial guarantees that arerecognized as indispensable by civilized peoples are prohibited. 116
111

See Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines ¶8 (“Persons detained are
to be promptly registered by the detaining authority.”). For example, DOD DIRECTIVE 2310.01E, DoD Detainee
Program, ¶3d (Aug. 19, 2014) (“Detainees will be registered, and property in their possession will be inventoried.
Records of their detention and such property will be maintained according to applicable law, regulation, policy, andother issuances. (1) DoD Components will maintain full accountability for all detainees under DoD control.
Detainees will be assigned an Internment Serial Number (ISN) normally within 14 days after their capture by, ortransfer to, the custody or control of DoD personnel, barring exceptional circumstances.”); DOD DIRECTIVE
2310.01E, The Department of Defense Detainee Program, ¶4.4.1 (Sept. 5, 2006) (“Detainees shall be assigned an
Internment Serial Number (ISN) as soon as possible after coming under DoD control, normally within 14 days of
capture. DoD Components shall maintain full accountability for all detainees under DoD control.”).
112

See also Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines ¶8.3 (“It is difficult toprovide a precise time limit to indicate when a detainee should be registered. Operational necessities or resource
constraints, such as force protection, or the limited availability of interpreters sometimes make it difficult to registera detainee at the precise moment of detention. The term ‘promptly’ is used to suggest that detainees should be
registered within a reasonable time, taking into account other essential tasks and resource limitations that may affectthe detaining authority’s ability to register detainees.”).
113

See Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines ¶8.1 (“Registration ofdetainees assists in ensuring that all detainees can be accounted for and that allegations of (illegal) detention can beaddressed.”).
114

For example, Declaration of Vice Admiral Robert S. Harward, ¶8 (Dec. 17, 2010), attached to Hamidullah v.
Gates, Response to Order to Show Cause and Motion to Dismiss, Civil Action No. 10-CV-758 (D.D.C. Dec. 17,2010) (“DoD has registered individuals held under its control at the DFIP with the National Detainee Reporting
Center (‘NDRC’) -- which accounts for persons who receive Internment Serial Numbers issued by DoD while in
DoD’s custody -- and with the International Committee of the Red Cross (‘ICRC’).”). Compare § 9.31.4 (U.S.
Practice in Reporting to the ICRC Central Tracing Agency); § 10.31.4 (U.S. Practice in Reporting to the ICRC
Central Tracing Agency).
115

Compare § 9.7.4 (Money and Articles of Value); § 10.19.1 (Money and Valuables in the Internee’s Possession).

116

See GWS art. 3 (prohibiting with respect to persons taking no active part in the hostilities “the passing ofsentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court

529

The specific rules addressed in this section may be understood as examples of suchguarantees. 117
8.16.1 No Private Rights Created by This Section in Particular. As with all other sectionsof this manual, Section 8.16 does not create any private rights. 118 The competent prosecuting
authorities shall ensure that the requirements reflected in this section are met.
8.16.2 General Limits on Punishments.
8.16.2.1 Individual Penal Responsibility and No Collective Punishment. No one
shall be convicted of an offense except on the basis of individual penal responsibility. 119
Collective punishments are prohibited. Collective punishments have been specificallyprohibited with respect to POWs, protected persons under the GC, and inhabitants of occupied
territory, and also in connection with non-international armed conflict. 120 This prohibition
includes penalties of any kind inflicted upon persons or groups of persons for acts that these
persons have not committed, including administrative penalties. 121 Punishment on the basis ofconspiracy, joint criminal enterprise, and other theories of secondary liability are not prohibitedby this rule. 122
8.16.2.2 No Crime or Punishment Without Prior Law. No one shall be accused orconvicted of a criminal offense on account of any act or omission that did not constitute a
criminal offense under the national or international law to which he or she was subject at thetime when it was committed; nor shall a heavier penalty be imposed than that which wasaffording all the judicial guarantees which are recognized as indispensable by civilized peoples.”); GWS-SEA art. 3(same); GPW art. 3 (same); GC art. 3 (same). Consider AP I art. 75(4) (“No sentence may be passed and no penalty
may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to aconviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles
of regular judicial procedure, which include the following:”); AP II art. 6(2) (“No sentence shall be passed and no
penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by acourt offering the essential guarantees of independence and impartiality.”).
117

ICRC AP COMMENTARY 878 (¶3084) (“Article 3 [of the 1949 Geneva Conventions] relies on the ‘judicial
guarantees which are recognized as indispensable by civilized peoples’, while Article 75 [of AP I] rightly spells out
these guarantees. Thus this article, and to an even greater extent, Article 6 of Protocol II (Penal prosecutions), gives
valuable indications to help explain the terms of Article 3 on guarantees.”).
118

Refer to § 1.1.1 (Purpose).

119

Consider AP I art. 75(4)(a) (“No one shall be convicted of an offence except on the basis of individual penal
responsibility;”); AP II art. 6(2)(b) (“No one shall be convicted of an offence except on the basis of individual penal
responsibility;”).
120

Refer to § 9.26.6 (Prohibited Penalties); § 10.5.3.2 (Collective Penalties and Measures of Intimidation or
Terrorism); § 11.6.2.2 (Prohibition Against General Penalties in Occupied Territory); § 17.6.7 (Prohibition on
Collective Punishment).
121

GC COMMENTARY 225 (“This paragraph then lays a prohibition on collective penalties. This does not refer topunishments inflicted under penal law, i.e. sentences pronounced by a court after due process of law, but penalties ofany kind inflicted on persons or entire groups of persons, in defiance of the most elementary principles of humanity,
for acts that these persons have not committed.”).
122

Refer to § 18.23 (Theories of Individual Criminal Liability).

530

applicable at the time when the criminal offense was committed; if, after the commission of theoffense, provision is made by law for the imposition of a lighter penalty, the offender shall
benefit thereby. 123
8.16.2.3 No Repetition of Punishment. No one shall be prosecuted or punished by
the same party for an offense in respect of which a final judgment acquitting or convicting that
person has been previously pronounced under the same law and judicial procedure. 124
8.16.2.4 Limitations on the Death Penalty. The death penalty shall not be
pronounced on persons who were under the age of eighteen years at the time of the offense andshall not be carried out on pregnant women or mothers of young children. 125
8.16.3 Rights of Defense and Trial Procedure. The procedure shall provide for an
accused to be informed without delay of the particulars of the notice alleged against him or her
and shall afford the accused before and during his or her trial all necessary rights and means ofdefense. 126
8.16.3.1 Presumption of Innocence. Anyone charged with an offense is presumed
innocent until proved guilty according to law. 127
8.16.3.2 Right to Trial in Presence. Anyone charged with an offense shall have

123

Consider AP I art. 75(4)(c) (“No one shall be accused or convicted of a criminal offence on account of any act oromission which did not constitute a criminal offence under the national or international law to which he was subject
at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time
when the criminal offence was committed; if, after the commission of the offence, provision is made by law for theimposition of a lighter penalty, the offender shall benefit thereby;”); AP II art. 6(2)(c) (“No one shall be accused orconvicted of a criminal offence on account of any act or omission which did not constitute a criminal offence under
the national or international law to which he was subject at the time when it was committed; nor shall a heavier
penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after
the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall
benefit thereby;”).
124

Consider AP I art. 75(4)(h) (“No one shall be prosecuted or punished by the same Party for an offence in respectof which a final judgement acquitting or convicting that person has been previously pronounced under the same law
and judicial procedure;”).
125

Consider AP II art. 6(4) (“The death penalty shall not be pronounced on persons who were under the age ofeighteen years at the time of the offence and shall not be carried out on pregnant women or mothers of young
chidren [sic].”).
126

Consider AP I art. 75(4)(a) (“The procedure shall provide for an accused to be informed without delay of theparticulars of the offence alleged against him and shall afford the accused before and during his trial all necessary
rights and means of defence;”); AP II art. 6(2)(a) (“The procedure shall provide for an accused to be informed
without delay of the particulars of the offence alleged against him and shall afford the accused before and during histrial all necessary rights and means of defence;”).
127
Consider AP I art. 75(4)(d) (“Anyone charged with an offence is presumed innocent until proved guilty
according to law;”); AP II art. 6(2)(d) (“Anyone charged with an offence is presumed innocent until proved guilty
according to law;”).

531

the right to be tried in his or her presence. 128
8.16.3.3 No Compulsory Self-Incrimination. No one shall be compelled to testify
against himself or herself or to confess guilt. 129
8.16.3.4 Right to Obtain and Examine Witnesses. Anyone charged with an
offense shall have the right to examine, or have examined, the witnesses against him or her andto obtain the attendance and examination of witnesses on his or her behalf under the same
conditions as witnesses against him or her. 130
8.16.3.5 Right to Have a Public Judgment. Anyone prosecuted for an offense
shall have the right to have the judgment pronounced publicly. 131
8.16.3.6 Advice on Appellate Procedure. A convicted person shall be advised onconviction of his or her judicial and other remedies, and of the time-limits within which they
may be exercised. 132

128

Consider AP I art. 75(4)(e) (“Anyone charged with an offence shall have the right to be tried in his presence;”);AP II art. 6(2)(e) (“Anyone charged with an offence shall have the right to be tried in his presence;”).
129

Consider AP I art. 75(4)(f) (“No one shall be compelled to testify against himself or to confess guilt;”); AP II art.
6(2)(f) (“No one shall be compelled to testify against himself or to confess guilt.”).
130

Consider AP I art. 75(4)(g) (“Anyone charged with an offence shall have the right to examine, or have examined,
the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him;”).
131

Consider AP I art. 75(4)(i) (“Anyone prosecuted for an offence shall have the right to have the judgement
pronounced publicly;”).
132
Consider AP I art. 75(4)(j) (“A convicted person shall be advised on conviction of his judicial and other remedies
and of the time-limits within which they may be exercised.”); AP II art. 6(3) (“A convicted person shall be advisedon conviction of his judicial and other remedies and of the time-limits within which they may be exercised.”).

532

IX – Prisoners of War (POWs)
Chapter Contents
9.1 Introduction
9.2 General Principles Applicable to the Treatment of POWs
9.3 POW Status
9.4 National-Level GPW Implementation Measures
9.5 Humane Treatment and Basic Protections for POWs
9.6 Security Measures With Respect to POWs
9.7 POW Effects and Articles of Personal Use
9.8 Interrogation of POWs
9.9 Evacuation From Combat Areas
9.10 Transit or Screening Facilities
9.11 General Conditions in POW Camps: Location, Safety, Hygiene, and Living
Conditions
9.12 Segregation of POWs
9.13 Food, Water, Tobacco, and Clothing for POWs
9.14 Medical Attention for Interned POWs
9.15 Religious Exercise by POWs
9.16 Intellectual, Physical, and Recreational Activities
9.17 Canteens for POWs
9.18 Financial Resources of POWs
9.19 POW Labor
9.20 POW Correspondence and Relief Shipments
9.21 Private Legal Matters of POWs
9.22 Internal Discipline of POW Camps
9.23 POW Requests, Complaints, and Reports About Conditions of Captivity
9.24 POW Representatives
9.25 POW Escapes
9.26 General Principles Applicable to POW Discipline
9.27 Disciplinary Proceedings and Punishment
9.28 Judicial Proceedings and Punishment
9.29 Transfer of POWs From the POW Camp9.30 Transfer of POWs to the Custody of Another Detaining Power9.31 National Accounting of the Detention of POWs
9.32 Role of the Protecting Power in the GPW
9.33 Access to POWs by the Protecting Powers, ICRC, and Relief Organizations
9.34 Death of POWs
9.35 Exchanges and Other Release and Repatriation of POWs During Hostilities
9.36 Direct Repatriation and Accommodation in Neutral Countries During
Hostilities
9.37 Release and Repatriation After Hostilities
9.38 Procedure on Release and Repatriation After Hostilities
9.39 Code of Conduct for U.S. Armed Forces533

9.1 INTRODUCTION
This Chapter addresses the treatment of prisoners of war (POWs).
9.1.1 Brief History of POW Law. States have made significant humanitarian advances in
the international law relating to the treatment of POWs. 1 Before the modern law of war, POWs
were often put to death, held for ransom or as hostages, or sold into slavery.
Gradually, protections for POWs, such as providing for their repatriation at the end of
conflict without ransom, were concluded in treaties. 2 The United States concluded bilateraltreaties for the humane treatment and protection of POWs, written with a view towards
forbidding abuses that occurred during the Revolutionary War. 3 Eventually multilateral treaties
for the protection of POWs were concluded, which also drew from the experience of POWs
during prior conflicts. 4 War crimes trials after World War II for POW mistreatment recognizedthat the humane treatment of POWs was required under customary international law. 5
After World War II, the 1949 Geneva Conventions were concluded, and more than 190
States, including the United States, are Parties to the GPW. 6
9.1.2 Interpretation and Application of the GPW. The GPW underlies most of theinternational law rules applicable to the United States for the treatment of POWs.
The GPW’s provisions should be interpreted in light of the principles that underlie POW
detention and, in particular, in light of the goal of advancing the humane treatment of POWs. 7
1

WINTHROP, MILITARY LAW & PRECEDENTS 788 (“Modern sentiment and usage have induced in the practice of war
few changes so marked as that which affects the status of prisoners of war. The time has long passed when ‘noquarter’ was the rule on the battlefield, or when a prisoner could be put to death by virtue simply of his capture.”).

2

See, e.g., Treaty of Peace Between Spain and the Netherlands, Signed at Munster, in Westphalia, on 30 January
1648, LEVIE, DOCUMENTS ON POWS 5 (“LXIII. All prisoners of war shall be delivered up by both sides, without thepayment of any ransom, and without any distinction and without exception with respect to the prisoners who served
outside of the Low Countries and under other standards and flags than those of the said Sovereign States.”).
3

For example, Treaty of Amity and Commerce between His Majesty the King of Prussia and the United States ofAmerica, art. 24, Sept. 10, 1785, 18 STAT. 641, 647.

4

Refer to § 19.8.1 (1899 Hague II); § 19.13.2 (1929 GPW).

5

See, e.g., United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE
IMT 232 (“The argument in defense of the charge with regard to the murder and ill-treatment of Soviet prisoners ofwar, that the U.S.S.R. was not a party to the [1929] Geneva Convention, is quite without foundation.”); UnitedStates v. von Leeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 495(quoting the International Military Tribunal at Nuremberg’s discussion of the murder and maltreatment of Soviet
POWs and noting: “All of these unlawful acts, as well as employment under inhumane conditions and at prohibitedlabor, is shown by the record in this case. They were deliberate, gross and continued violations of the customs andusages of war as well as the Hague Regulations (1907) and the Geneva Convention (1929) and of internationalcommon law.”).
6

Refer to § 19.16 (1949 Geneva Conventions).

7

See Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under the
Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 55 (“Our recourse
to fundamental principles to address an ambiguity in article 4 is not unusual. In the context of the law of armed
conflict, interpreters faced with changed or unexpected circumstances have not hesitated to resort to a treaty’s

534

The subsequent practice of States in applying the GPW could assist in interpreting its provisions
because States’ decades of experience in applying the GPW may be very helpful inunderstanding its requirements. 8
9.1.2.1 GPW – Notes on Terminology. “Prisoner of war” (abbreviated POW in
this manual) does not refer to any person who is held prisoner in connection with a war; rather,
POW is term of art that is defined and used in the GPW. 9
In the GPW, the Detaining Power refers to the State that holds the POW.
In the GPW, the Power on which the POWs depend means the State that the POWs
served before falling into the power of the enemy. (In some cases, this State might be different
from the POW’s State of nationality.)In the GPW, the Protecting Power refers to a neutral State that helps implement the
GPW. 109.1.2.2 Special Agreements Under the GPW. Under the GPW, States may
conclude a variety of special agreements during international armed conflict to facilitate theprotection of POWs.
The GPW specifically provides for agreements:•

to entrust to an effective and impartial organization the duties of the Protecting Powers; 11•

to establish a system for marking POW camps; 12•

on how to allocate the profits made by camp canteens in case of a general repatriation; 13•

to establish the corresponding ranks for their medical personnel and staff of National Red
Cross Societies and other Voluntary Aid Services in order to help determine the senior
medical officer in POW camps; 14

fundamental principles to avoid a non-contextual reading of a treaty term that, wrenched from its original context,
might lead to a conclusion that does violence to the treaty’s object and purpose. And they have done so even whenconstruing treaty text far less ambiguous than article 4.”). Refer to § 9.2 (General Principles Applicable to theTreatment of POWs).
8

Refer to § 1.7.4 (Use of Certain Subsequent Practice in Treaty Interpretation).

9

Refer to § 9.3 (POW Status).

10

Refer to § 18.15.1.1 (Protecting Power Under the 1949 Geneva Conventions).

11

Refer to § 18.15.2.1 (Agreement for an Impartial and Effective Organization to Perform Protecting Power Duties
Under the 1949 Geneva Conventions).
12

Refer to § 9.4.2.3 (Location and Marking of POW Camps).

13

Refer to § 9.17.3.2 (Disposition of Canteen Profits Upon Camp Closure).

14

Refer to § 7.9.5.7 (Senior Medical Officer in the Camp).

535

•

for the relief of retained personnel and the procedure for relief; 15•

to modify the amount of advances of pay due to POWs based on their military rank
during and at the close of hostilities; 16•

to notify periodically, through the Protecting Power, the account balances of POWs; 17•

to vary the required information provided for in the list of all appropriate particulars of all
POWs whose captivity has been terminated; 18•

regarding individual parcels and collective relief shipments to POWs; 19•

for the accommodation in neutral countries of seriously wounded and sick POWs; 20•

for the direct repatriation or internment in a neutral country of able-bodied POWs who
have undergone a long period of captivity; 21•

to determine the conditions that POWs who are accommodated in a neutral country must
fulfill in order to permit their repatriation, and to establish the status of POWs
accommodated in a neutral country; 22•

to determine the equitable apportionment of costs of and a plan for repatriation for when
hostilities have ceased; 23•

to regulate the conditions of the transport of personal effects and the payment of the costs
associated with the repatriation of POWs; 24•

to establish a commission to search for dispersed POWs and to ensure their repatriation
with the least possible delay; 25 and•on the procedure, or to select an umpire who will decide the procedure, to be followed for

15

Refer to § 7.9.5.8 (Agreements on Possible Relief of Retained Personnel).

16

Refer to § 9.18.3 (Advance of Pay).

17

Refer to § 9.18.6.3 (Periodic Notification of the Amount of the Accounts of POWs).

18

Refer to § 9.18.6.4 (Statements of Credit Balance on Termination of Captivity).

19

Refer to § 9.20.3.3 (Special Agreements Concerning Relief Shipments).

20

Refer to § 9.36.2 (Accommodation in Neutral Countries).

21

Refer to § 9.36.2 (Accommodation in Neutral Countries).

22

Refer to § 9.36.3.1 (Repatriation From a Neutral State).

23

Refer to § 9.37.6 (Costs of Repatriation at the Close of Hostilities).

24

Refer to § 9.38.3 (Personal Property); § 9.31.2.3 (Collection of Personal Valuables Left by POWs).

25

Refer to § 9.37.5 (Commissions to Search for Dispersed POWs).

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an inquiry concerning any alleged violation of the GPW. 26
In addition to the agreements expressly provided for in Articles 10, 23, 28, 33, 60, 65, 66,
67, 72, 73, 75, 109, 110, 118, 119, 122, and 132 of the GPW, Parties to the GPW may conclude
other special agreements for all matters concerning which they may deem it suitable to makeseparate provision. 27 No special agreement shall adversely affect the situation of POWs, as
defined by the GPW, nor restrict the rights that it confers upon them. 28
POWs shall continue to have the benefit of such agreements as long as the GPW isapplicable to them, except where express provisions to the contrary are contained in these orsubsequent agreements, or where more favorable measures have been taken with regard to themby one or other of the parties to the conflict. 29
9.1.3 DoD Policies and Regulations for the Treatment of POWs. DoD policies andregulations regarding the treatment of POWs provide authoritative guidance for DoD personnel
and fill an important role in implementing the complex requirements of the GPW. 30
Practitioners are advised to consult all applicable policies and regulations, as these, in manycases, exceed the requirements of the GPW, U.S. statutes, and Executive Orders.
9.2 GENERAL PRINCIPLES APPLICABLE TO THE TREATMENT OF POWS
Certain principles provide the foundation for the rules governing the treatment of POWs.
9.2.1 Detention Is Non-Punitive in Character. The detention of POWs is not punishment,
and is devoid of all penal character. 31 It is intended to disable the POW and to prevent him or
her from further participation in hostilities. 32
26

Refer to § 18.14.1 (Inquiry Procedure in the 1949 Geneva Conventions).

27

GPW art. 6 (“In addition to the agreements expressly provided for in Articles 10, 23, 28, 33, 60, 65, 66, 67, 72,
73, 75, 109, 110, 118, 119, 122 and 132, the High Contracting Parties may conclude other special agreements for all
matters concerning which they may deem it suitable to make separate provision.”).
28

GPW art. 6 (“No special agreement shall adversely affect the situation of prisoners of war, as defined by thepresent Convention, nor restrict the rights which it confers upon them.”).
29

GPW art. 6 (“Prisoners of war shall continue to have the benefit of such agreements as long as the Convention isapplicable to them, except where express provisions to the contrary are contained in the aforesaid or in subsequent
agreements, or where more favourable measures have been taken with regard to them by one or other of the Parties
to the conflict.”).
30

Refer to § 18.7 (Instructions, Regulations, and Procedures to Implement and Enforce the Law of War).

31

WINTHROP, MILITARY LAW & PRECEDENTS 788 (“It is now recognized that—‘Captivity is neither a punishment
nor an act of vengeance,’ but ‘merely a temporary detention which is devoid of all penal character.’”); Francis
Lieber, The Status of Rebel Prisoners of War, reprinted in II THE MISCELLANEOUS WRITINGS OF FRANCIS LIEBER
293 (1881) (“A belligerent is not a criminal, and the imprisonment of a captured belligerent is not a punishment. A
prisoner of war is no convict; his imprisonment is a simple war measure.”).
32

United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT 232(quoting approvingly a German Admiral who argued for the humane treatment of POWs during World War II, “warcaptivity is neither revenge nor punishment, but solely protective custody, the only purpose of which is to preventthe prisoners of war from further participation in the war.”).

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9.2.2 Responsibility of the Detaining Power. POWs are in the hands of the enemy
Power, and not of the individuals or military units who have captured them. 33 Irrespective of theindividual responsibilities that may exist, the Detaining Power is responsible for the treatment
given POWs. 34
9.2.3 Responsibility of POWs. Just as the Detaining Power is responsible for thetreatment of POWs, POWs also have certain responsibilities related to their detention.
POWs continue to have obligations to the Power on which they depend. 35 POWs are also
obliged to obey the laws, regulations, and orders of the Detaining Power. 36 Despite this generalobligation, POWs may not be punished in respect of their successful escape, if recaptured by the
Detaining Power. 37
9.2.4 Humane Treatment. Humane treatment is a fundamental principle underlying the
GPW; it is always required. 38 Moreover, interpretations of the GPW that provide for humane
treatment should be favored over rigid interpretations of the GPW that lead to results that would
be detrimental to the welfare of POWs.
9.2.5 Reciprocity in the Treatment of POWs. The rules for the treatment of POWs havelong been based on the principle that POWs should be treated as the Detaining Power would
want its forces held by the enemy to be treated. 39 Aside from being legally required, the33

GPW art. 12 (“Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units
who have captured them.”); 1929 GPW art. 2 (“Prisoners of war are in the power of the hostile Power, but not of theindividuals or corps who have captured them.”); HAGUE IV REG. art. 4 (“Prisoners of war are in the power of thehostile Government, but not of the individuals or corps who capture them.”); LIEBER CODE art. 74 (“A prisoner ofwar, being a public enemy, is the prisoner of the government, and not of the captor.”).
34

GPW art. 12 (“Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible forthe treatment given them.”).
35

Refer to § 9.22.2 (POWs’ Status With Respect to Their Armed Forces).

36

Refer to § 9.26.1 (POWs Subject to the Laws, Regulations, and Orders in Force in the Armed Forces of the
Detaining Power).
37

Refer to § 9.25.1 (No Punishment for Successful Escape).

38

Refer to § 9.5 (Humane Treatment and Basic Protections for POWs).

39

For example, Basic Course in the Geneva Conventions of 1949 and Hague Convention No. IV of 1907: Lesson
Plan—First Hour, ¶6, Appendix A in DEPARTMENT OF THE ARMY SUBJECT SCHEDULE 27-1, The Geneva
Conventions of 1949 and Hague Convention No. IV of 1907, 6 (Aug. 29, 1975) (“Although we shall presently
discuss the most important of the many specific rules set out in these [1949 Geneva] Conventions, you should
always keep in mind that these rules are embodied in one general principle: treat all prisoners of war, civilians, orother detained personnel humanely. … But, you ask, what does it mean to treat someone humanely? If you treatsuch people as you would like to be treated were you captured or detained, you will be treating them humanely.
Remember that a PW is in your protective custody, and you cannot harm him.”); George Washington, Commanderin-Chief of the Continental Army, Letter to Lieutenant General Thomas Gage, Head Quarters, Cambridge (Aug. 11,
1775), reprinted in JARED SPARKS, THE WRITINGS OF GEORGE WASHINGTON; PART SECOND, III 60 (1837) (“MyDuty now makes it necessary to apprize you, that for the future I shall regulate my Conduct towards those
Gentlemen, who are or may be in our Possession, exactly by the Rule you shall observe towards those of ours, now
in your Custody. If severity and hardship mark the line of your conduct, painful as it may be to me, your prisoners
will feel its effects. But if kindness and humanity are shown to ours, I shall with pleasure consider those in ourhands only as unfortunate, and they shall receive from me that treatment to which the unfortunate are entitled.”).

538

favorable treatment of POWs held by the U.S. armed forces can promote the favorable treatmentof members of the U.S. armed forces held by enemy States. 40
A similar concept may also be found in provisions of the GPW that provide for thetreatment of POWs with reference to the treatment of the armed forces of the Detaining Power.
For example, POWs shall be quartered under conditions as favorable as those for the forces of
the Detaining Power who are billeted in the same area. 41 Similarly, in judicial proceedings,
POWs should benefit from the same courts and same procedures as the members of the armed
forces of the Detaining Power. 42
9.3 POW STATUS
9.3.1 POW Status Versus POW Protections. In some cases, the policy of the UnitedStates has been to afford detainees certain POW protections even when they may not apply as amatter of law. 43 Certain POW protections may be afforded to an individual without affecting thelegal status of that individual or the legal status of a group to which that person belongs. 44
9.3.2 Persons Entitled to POW Status. During international armed conflict, persons
entitled to POW status, if they fall into the power of the enemy, include: 45
40

For example, Martin Tollefson, Enemy Prisoners of War, 31 IOWA LAW REVIEW 51, 56 footnote 8 (1946) (“Thewriter of this law review article was a member of a committee of three officers sent by the Secretary of War toinspect concentration camps, civilian internee camps, and prisoner-of-war camps in Germany immediately upon
their liberation. Testimony was frequently and freely given to these committee members by Americans held as
prisoners of war (not in concentration camps where American servicemen were not interned) to the effect that they
had been given better treatment as a result of the fair treatment given by the United States to German prisoners.
Occasionally testimony was given by interned Americans that they were of the opinion that the reason they survived
prisoner of war internment in Germany was the result of fair treatment of German prisoners.”).
41

Refer to 9.11.6 (Conditions of Living Quarters).

42

Refer to § 9.28.2 (Same Courts and Same Procedures).

43

For example, MAJOR GENERAL GEORGE S. PRUGH, LAW AT WAR: VIETNAM 1964-1973 66 (1975) (“Theclassification of Viet Cong combatants and Viet Cong suspects posed an interesting legal problem. Because it
believed the Viet Cong were traitors and criminals, the Vietnam government was reluctant to accord prisoner of war
status to Viet Cong captives. Furthermore it was certainly arguable that many Viet Cong did not meet the criteria ofguerrillas entitled to prisoner of war status under Article 4, Geneva Prisoner of War Conventions. However, civil
incarceration and criminal trial of the great number of Viet Cong was too much for the civil resources at hand. In
addition, Article 22 prohibited the mingling of civil defendants with prisoners of war. By broadly construing Article
4, so as to accord full prisoner of war status to Viet Cong Main Force and Local Force troops, as well as regular
North Vietnamese Army troops, any Viet Cong taken in combat would be detained for a prisoner of war camp rather
than a civilian jail. The MACV policy was that all combatants captured during military operations were to beaccorded prisoner of war status, irrespective of the type of unit to which they belonged. Terrorists, spies, andsaboteurs were excluded from consideration as prisoners of war. Suspected Viet Cong captured undercircumstances not warranting their treatment as prisoners of war were handled as civilian defendants.”).
44

Compare § 17.2.3 (Application of Humanitarian Rules and the Legal Status of the Parties to the Conflict).

45

GPW art. 4A (“Prisoners of war, in the sense of the present Convention, are persons belonging to one of thefollowing categories, who have fallen into the power of the enemy: (1) Members of the armed forces of a Party to
the conflict, as well as members of militias or volunteer corps forming part of such armed forces. (2) Members ofother militias and members of other volunteer corps, including those of organized resistance movements, belonging
to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided

539

•

members of the armed forces of a State that is a party to the conflict, including; 46
o deserters; 47 ando military medical and religious personnel not entitled to retained personnel status(e.g., those not exclusively engaged in medical duties at the time of theircapture); 48•

members of certain militia and volunteer corps; 49•

members of regular armed forces who profess allegiance to a government or authority notrecognized by Detaining Power; 50•

persons authorized to accompany the armed forces; 51•

members of crews of merchant marine vessels or civil aircraft; 52 and•participants in a levée en masse. 53

9.3.2.1 Persons Who Are Not Entitled to POW Status. Certain categories of
persons are not entitled to POW status:•

spies, saboteurs, and other persons engaging in similar acts behind enemy lines; 54 andthat such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:(a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign
recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordancewith the laws and customs of war. (3) Members of regular armed forces who profess allegiance to a government or
an authority not recognized by the Detaining Power. (4) Persons who accompany the armed forces without actually
being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors,
members of labour units or of services responsible for the welfare of the armed forces, provided that they havereceived authorization from the armed forces which they accompany, who shall provide them for that purpose with
an identity card similar to the annexed model. (5) Members of crews, including masters, pilots and apprentices, ofthe merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by morefavourable treatment under any other provisions of international law. (6) Inhabitants of a non-occupied territory,
who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time
to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs ofwar.”).
46

Refer to § 4.5 (Armed Forces of a State).

47

Refer to § 4.5.2.5 (Deserters).

48

Refer to § 4.9.2 (Requirements for Military Medical and Religious Status).

49

Refer to § 4.6 (Other Militia and Volunteer Corps).

50

Refer to § 4.5.3 (Regular Armed Forces Who Profess Allegiance to a Government or an Authority Not
Recognized by the Detaining Power).
51

Refer to § 4.15 (Persons Authorized to Accompany the Armed Forces).

52

Refer to § 4.16 (Crews of Merchant Marine Vessels or Civil Aircraft).

53

Refer to § 4.7 (Levée en Masse).

540

•

persons who are nationals of the Detaining Power or its co-belligerents, 55 such as adefector who subsequently is captured by the force from which he or she defected. 56

9.3.2.2 Examples of Categories of Persons Who Are Not Necessarily Excluded
From POW Status. The following categories of persons are not necessarily excluded from POW
status simply because they belong to one of these categories:•

mercenaries; 57•

persons who are alleged to have committed war crimes; 58•

nationals of neutral or non-belligerent States serving in the armed forces of an enemy
State; 59 and•persons whose capture has not been acknowledged by the Power to which they belong. 60

9.3.3 Persons Entitled to POW Treatment. Certain persons, although not entitled to POW
status, shall likewise be treated as POWs under the GPW:•

persons belonging, or having belonged, to the armed forces of an Occupied State if it isdeemed necessary to intern them; 61 and•persons belonging to one of the categories enumerated in Article 4 of the GPW who havebeen received by neutral or non-belligerent Powers on their territory and whom thesePowers are required to intern under international law. 62
9.3.4 Fallen Into the Power of the Enemy.

9.3.4.1 Having Fallen. Persons must have “fallen” into the power of the enemy toreceive POW status. 63
The person need not have been captured to have “fallen” into the power of the enemy; it
54

Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).

55

Refer to § 4.4.4 (Nationality and Combatant Status).

56

Refer to § 4.5.2.6 (Defectors).

57

Refer to § 4.21 (Mercenaries).

58

Refer to § 9.26.4 (Retention of Benefits of the GPW Even if Prosecuted for Pre-Capture Acts).

59

Refer to § 4.4.4.1 (Nationals of Neutral States in Enemy Forces).

60

For example, 2004 UK MANUAL ¶8.3 footnote 20 (“During the Gulf conflict 1991, the Iraqi action in declaringthat captured aircrew would only be treated as prisoners of war (PW) if the coalition forces admitted that they had
been captured was a clear breach of GC III, Art 4.”).

61

Refer to § 4.5.4 (Persons Belonging, or Having Belonged, to the Armed Forces of an Occupied State).

62

Refer to § 15.16.3.1 (Provision of POW Treatment and Application of the GWS and GWS-Sea by Analogy).

63

Compare § 10.3.2.1 (“Find Themselves”).

541

may be the case that he or she became a prisoner without fighting, e.g., by surrendering. 64
Although defectors serving with their new armed force may be viewed as being in “thepower of the enemy,” they are not regarded as “hav[ing] fallen into” that condition, since they
have voluntarily chosen to switch sides. 65 Thus, defectors are not considered by their new armed
forces to be entitled to POW status. 66
9.3.4.2 Into the Power. A person is considered to have fallen into the power ofthe enemy when that person has been captured by, or surrendered to, members of the militaryforces, the civilian police, or local civilian defense organizations or other enemy civilians who
have taken that person into custody. 67 The person need not be captured by the armed forces ofthe opposing State.
9.3.4.3 Of the Enemy. Persons who have been captured by States that are notadversaries in the armed conflict are not technically in the hands of the enemy. 68 However,persons who are entitled to POW status or treatment and are interned by a neutral State under its
duties under international law are generally entitled to POW treatment, as a minimum, under
Article 4B(2) of the GPW. 69 Similarly, for example, military forces engaged in peace operations
who are detained by the forces of a State that is a party to a conflict should, at a minimum, beafforded POW treatment by analogy.
9.3.5 Treatment and Determination of POW Status in Case of Doubt. Should any doubt
arise as to whether persons, having committed a belligerent act and having fallen into the handsof the enemy, belong to any of the categories enumerated in Article 4 of the GPW, such persons
shall enjoy the protection of the GPW until such time as their status has been determined by a

64

GPW COMMENTARY 50 (“The words ‘fallen into the power of the enemy’ replace the word ‘captured’ whichappeared in the 1929 Convention, the first expression having a wider significance and also covering the case ofsoldiers who became prisoners without fighting, for example following a surrender.”).

65

See U.N. GENERAL ASSEMBLY, Report of the Secretary-General: Respect for Human Rights in Armed Conflicts,
U.N. Doc. A/7720 ¶88 (Nov. 20, 1969) (“One of the requirements of the acquisition of prisoner of war status is thatthe persons concerned must ‘have fallen into the power of the enemy.’ The view has been expressed that persons
who defect from their own forces and give themselves up to the enemy and therefore do not have prisoner of war
status, are not subject to the provisions of Geneva Convention III and are therefore neither entitled to the rights nor
bound by the obligations of prisoners of war.”); 1958 UK MANUAL ¶126 note 1 (“Defectors are not considered tohave ‘fallen’ into the power of the enemy within the meaning of Art. 4A. … The term ‘fallen’ clearly shows that itconcerns combatants who pass into enemy hands, not of their own free will but by a force beyond their control
because they are under its restraint,’”).
66

Refer to § 4.5.2.6 (Defectors).

67

1956 FM 27-10 (Change No. 1 1976) ¶84b (“A person is considered to have fallen into the power of the enemy
when he has been captured by, or surrendered to members of the military forces, the civilian police, or local civilian
defense organizations or enemy civilians who have taken him into custody.”).
68

See GPW COMMENTARY 50 (“The existence of a state of belligerence is no longer officially in question; the term
‘enemy’ covers any adversary during an ‘armed conflict which may arise between two or more of the HighContracting Parties’ pursuant to the first paragraph of Article 2.”).
69

Refer to § 15.16.3.1 (Provision of POW Treatment and Application of the GWS and GWS-Sea by Analogy).

542

competent tribunal. 70
9.3.6 Commencement and Duration of POW Status and Treatment. The GPW applies topersons referred to in Article 4 of the GPW from the time they fall into the power of the enemy
until their final release and repatriation. 71
9.3.7 Non-Renunciation of Rights Secured by the GPW. POWs may in no circumstances
renounce, in part or in entirety, the rights secured to them by the GPW, or by special agreements,
if any, that are referred to in Article 6 of the GPW. 72 A similar provision of the GC applies toprotected persons, and similar provisions of the GWS and GWS-Sea apply to the wounded, sick,shipwrecked, and military medical and religious personnel. 73
This rule is intended to prevent States from evading their obligations by coercing enemy
nationals in their power to waive their rights. The prohibition on the non-renunciation of rights
is based on a recognition that: (1) POWs are in a vulnerable position; (2) it would be difficult toestablish whether a POW had voluntarily renounced his or her rights; and (3) an absoluteprohibition would best serve the interests of the majority of POWs. 74
The non-renunciation of rights, in particular, prevents a POW from being compelled toserve in the armed forces of the Detaining Power. 75 The non-renunciation of POW rights,
however, applies only to those who have fallen into the power of the enemy, and thus would notprevent persons from defecting to the enemy’s side before capture. 76
The non-renunciation of rights by the GPW does not prohibit States from affording
POWs the right to refuse repatriation at the conclusion of the conflict. 77

70

Refer to § 4.27.2 (POW Protections for Certain Persons Until Status Has Been Determined); § 4.27.3 (Competent
Tribunal to Assess Entitlement to POW Status or Treatment).
71

GPW art. 5 (“The present Convention shall apply to the persons referred to in Article 4 from the time they fall into
the power of the enemy and until their final release and repatriation.”).

72
GPW art. 7 (“Prisoners of war may in no circumstances renounce in part or in entirety the rights secured to themby the present Convention, and by the special agreements referred to in the foregoing Article, if such there be.”).
Refer to § 9.1.2.2 (Special Agreements Under the GPW).
73

Refer to § 10.3.6 (Non-Renunciation of Rights Secured by the GC); § 7.2.2 (Non-Renunciation of Rights Securedby the GWS or GWS-Sea).
74

See GPW COMMENTARY 89 (“In the end, however, the Diplomatic Conference unanimously adopted the absoluteprohibition mainly because it is difficult, if not impossible, to prove the existence of duress or pressure [against a
POW for him or her to renounce rights]. … [The Diplomatic Conference] adopted the rule because it seemed tosafeguard the interests of the majority. … The Conference also accepted the view that in war-time prisoners in thehands of the enemy are not really in a sufficiently independent and objective state of mind to realize fully the
implications of a renunciation of their rights.”). See also LEVIE, POWS 91 (“Obviously, prisoners of war can nevernegotiate on a basis of equality with the Detaining Power.”).
75

Refer to § 9.19.2.3 (Labor Assignments That May Be Compelled).

76

Refer to § 4.5.2.6 (Defectors).

77

Refer to § 9.37.4.2 (POWs Who Resist Repatriation).

543

9.4 NATIONAL-LEVEL GPW IMPLEMENTATION MEASURESThe GPW requires a number of measures at the national level to facilitate protection for
POWs.
9.4.1 Appointment or Establishment of Entities. The GPW provides for certain bodies orentities to be appointed or established.
9.4.1.1 Appointment of a Protecting Power. The GPW contemplates that a
Protecting Power will have been appointed to assist in the implementation of the GPW. 78 A
Protecting Power has a variety of roles under the GPW related to the protection of POWs. 79
9.4.1.2 Establishment of a National POW Information Bureau. A National POW
Information Bureau shall be established by each of the Powers concerned. 80
9.4.1.3 Establishment of a Central POW Information Agency. A Central POW
Information Agency shall be established in a neutral country by the Power concerned jointly. 81
9.4.1.4 Appointment of Mixed Medical Commissions. Mixed Medical
Commissions shall be appointed to examine sick and wounded POWs and to make allappropriate decisions regarding them. 82
9.4.1.5 Graves Registration Service. A Graves Registration Service shall beestablished by each of the Powers concerned. 83
9.4.2 Notification of Certain Laws or Policies Between Belligerents. Parties to a conflictmust notify opposing belligerents or the Protecting Power of certain matters relating to POWs.
9.4.2.1 Notification of Parole Policy. Upon the outbreak of hostilities, each party
to a conflict shall notify the adverse party or parties of its laws or regulations allowing or
forbidding its armed forces to accept parole. 84 U.S. policy has prohibited the acceptance ofparole. 85
9.4.2.2 Notification of Offenses Punishable by Death. Information on what
offenses are punishable by death should be communicated to the Protecting Power and the78

Refer to § 18.15.1.1 (Protecting Power Under the 1949 Geneva Conventions).

79

Refer to § 9.32 (Role of the Protecting Power in the GPW).

80

Refer to § 9.31.2 (National POW Information Bureau).

81

Refer to § 9.31.3 (Central POW Information Agency).

82

Refer to § 9.36.5 (Mixed Medical Commissions).

83

Refer to § 9.34.4 (Maintenance and Records of Graves and Ashes).

84

Refer to § 9.11.2 (Parole of POWs).

85

Refer to § 9.39.1.3 (Code of Conduct – Article III).

544

POWs. 86
9.4.2.3 Location and Marking of POW Camps. The Detaining Power should
provide the Powers concerned useful information regarding the geographic location of POW
camps, and agreements on their markings may be reached. 87
9.4.2.4 Requirements for the Validity of Wills. Information on the requirements
for the validity of wills should be communicated to the opposing party so that POWs in enemy
custody may prepare valid wills. 88
9.4.2.5 Communication or Agreement Between the Powers Concerned on Ranks.
Titles and ranks of persons entitled to POW status or treatment shall be communicated to one
another by the parties to the conflict. 89 Ranks of persons entitled to retained personnel status ortreatment should also be communicated and agreed upon so that the senior medical officer in a
POW Camp may be determined. 90
9.4.2.6 Arrangements Made for POWs to Write Correspondence and Receive
Collective Relief. Immediately upon POWs falling into its power, the Detaining Power shallinform them and the Powers on which they depend, through the Protecting Power, of themeasures taken to carry out the provisions of the Section V of the GPW, which relates to POW
correspondence and relief shipments. 91 The Detaining Power shall likewise inform the parties
concerned of any subsequent modifications of such measures. 92
9.4.3 Issue of Identification Cards to Persons Liable to Become POWs. Parties to the
GPW must provide persons under their jurisdiction who are liable to become POWs with identity
cards. 93 This card must show:•

the owner’s surname (i.e., last name), first names (i.e., first and middle names);•

rank, army, regimental, personal or serial number or equivalent information; and•date of birth.

86

Refer to § 9.28.6 (Death Sentences).

87

Refer to § 9.11.4.2 (Sharing Information on the Location of POW Camps); § 9.11.4.3 (Marking of POW Camps).

88

Refer to § 9.21.2.1 (Preparation of Wills).

89

Refer to § 9.22.4.1 (Communication of Titles and Ranks).

90

Refer to § 7.9.5.7 (Senior Medical Officer in the Camp).

91

GPW art. 69 (“Immediately upon prisoners of war falling into its power, the Detaining Power shall inform themand the Powers on which they depend, through the Protecting Power, of the measures taken to carry out theprovisions of the present Section.”).

92

GPW art. 69 (“They shall likewise inform the parties concerned of any subsequent modifications of suchmeasures.”).
93
GPW art. 17 (“Each Party to a conflict is required to furnish the persons under its jurisdiction who are liable tobecome prisoners of war, with an identity card showing the owner’s surname, first names, rank, army, regimental,
personal or serial number or equivalent information, and date of birth.”).

545

In accordance with this requirement, DoD practice has been to issue all members of the
U.S. armed forces identification cards that indicate their status under the Geneva Conventions. 94
An individual’s loss of the identification card issued by a State Party is not a basis fordenial of POW status. 95
9.5 HUMANE TREATMENT AND BASIC PROTECTIONS FOR POWS
POWs must at all times be humanely treated. 96 POWs are entitled in all circumstances torespect for their persons and their honor. 97 Likewise, POWs must at all times be protected,
particularly against acts of violence or intimidation and against insults and public curiosity. 98
Any unlawful act or omission by the Detaining Power causing death or seriously
endangering the health of a POW in its custody is prohibited, and will be regarded as a serious
breach of the GPW. 99
9.5.1 Respect for Their Persons and Honor. POWs are entitled in all circumstances torespect for their persons and their honor. 100 For example, the rape or other indecent assault of
POWs is forbidden. 101
9.5.2 Protection Against Acts of Violence or Intimidation. POWs must at all times beprotected, particularly against acts of violence or intimidation. 102 For example, the murder of
POWs is forbidden. 103

94

For example, DOD INSTRUCTION 1000.01, Identification (ID) Cards Required by the Geneva Conventions (Apr.
16, 2012); DOD INSTRUCTION 1000.1, Identity Cards Required by the Geneva Convention (Jan. 30, 1974).
95

Refer to § 4.27.1 (Identification Cards Used to Help Clarify Status).

96

GPW art. 13 (“Prisoners of war must at all times be humanely treated.”); HAGUE IV REG. art. 4 (“[Prisoners ofwar] must be humanely treated.”).

97

GPW art. 14 (“Prisoners of war are entitled in all circumstances to respect for their persons and their honour.”).

98

GPW art. 13 (“Likewise, prisoners of war must at all times be protected, particularly against acts of violence or
intimidation and against insults and public curiosity.”).
99

GPW art. 13 (“Any unlawful act or omission by the Detaining Power causing death or seriously endangering thehealth of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present
Convention.”).
100

GPW art. 14 (“Prisoners of war are entitled in all circumstances to respect for their persons and their honour.”).

101

Compare § 8.2.2.1 (Protection Against Rape, Enforced Prostitution, and Other Indecent Assault); § 10.5.1.2(Protection for Women Against Rape or Other Indecent Assault).
102

GPW art. 13 (“Likewise, prisoners of war must at all times be protected, particularly against acts of violence or
intimidation and against insults and public curiosity.”).
103

For example, Trial of the Rear-Admiral Nisuke Masuda and Four Others of the Imperial Japanese Navy (The
Jaluit Atoll Case), I U.N. LAW REPORTS 71, 72 (U.S. Military Commission, U.S. Naval Air Base, Kwajalein Island,
Kwajalein Atoll, Marshall Islands, Dec. 7-13, 1945) (“The charge against the five accused, as approved by theConvening Authority, was one of murder. The specification stated that they ‘did, on or about 10th March, 1944, on
the Island of Aineman, Jaluit Atoll, Marshall Islands, at a time when a state of war existed between the United Statesof America and the Japanese Empire, wilfully, feloniously, with malice aforethought without justifiable cause, and546

9.5.2.1 Prohibition on Killing of POWs. A commander of a force may not put
enemy prisoners to death because their presence retards the force’s movements or diminishes theforce’s power of resistance by necessitating a large guard, or by reason of the prisoners
consuming supplies, or because it appears certain that they will regain their liberty through theimpending success of enemy forces. It is likewise unlawful for a commander to kill enemy
prisoners in the force’s custody on grounds of self-preservation, even in the case of airborne orcommando operations, although the circumstances of the operation may make necessary rigorous
supervision of and restraint upon the movement of POWs. 104
Older sources that permitted commanders in dire circumstances to deny quarter do notreflect the current law. 105
9.5.2.2 Protection Against Violence by the Civilian Population or Others. POWs
must be protected against violence by the civilian population. 106 POWs should be protected not
only against unlawful acts by the agents of the Detaining Power, but also against violence fromother POWs. 107

without trial or other due process, assault and kill, by shooting and stabbing to death, three American fliers, then andthere attached to the Armed forces of the United States of America, and then and there captured and unarmed
prisoners of war in the custody of the said accused, all in violation of the dignity of the United States of America,
the International rules of warfare and the moral standards of civilised society.’”).
104

1956 FM 27-10 (Change No. 1 1976) ¶85 (“A commander may not put his prisoners to death because theirpresence retards his movements or diminishes his power of resistance by necessitating a large guard, or by reason of
their consuming supplies, or because it appears that they will regain their liberty through the impending success of
their forces. It is likewise unlawful for a commander to kill his prisoners on the grounds of self-preservation, evenin the case of airborne or commando operations, although the circumstances of the operation may make necessary
rigorous supervision of and restraint upon the movement of prisoners of war.”); 1958 UK MANUAL ¶137 (“Acommander may not put his prisoners of war to death because their presence retards his movements or diminishes
his power of resistance by necessitating a large guard, or by reason of their consuming supplies, or because it
appears that they will regain their liberty through the impending success of the forces to which they belong. It isunlawful for a commander to kill prisoners of war on grounds of self-preservation. This principle admits of no
exception, even in the case of airborne or so-called commando operations—although the circumstances of theoperation may make necessary rigorous supervision of and restraint upon their movement.”).
105

See, e.g., LIEBER CODE art. 65 (“[A] commander is permitted to direct his troops to give no quarter, in greatstraits, when his own salvation makes it impossible to cumber himself with prisoners.”).
106

See, e.g., Trial of Erich Heyer and Six Others (The Essen Lynch Case), I U.N. LAW REPORTS 88, 89 (British
Military Court for the Trial of War Criminals, Essen, Dec. 18-19 and 21-22, 1945) (“[P]risoners of war weremarched through one of the main streets of Essen, the crowd around grew bigger, started hitting them and throwing
sticks and stones at them. An unknown German corporal actually fired a revolver at one of the airmen and wounded
him in the head. When they reached the bridge, the airmen were eventually thrown over the parapet of the bridge;
one of the airmen was killed by the fall; the others were not dead when they landed, but were killed by shots fromthe bridge and by members of the crowd who beat and kicked them to death.”); United States, et al. v. Göring, et al.,Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT 229 (“When Allied airmen were forced to landin Germany, they were sometimes killed at once by the civilian population. The Police were instructed not tointerfere with these killings, and the Ministry of Justice was informed that no one should be prosecuted for taking
part in them.”).
107

GPW COMMENTARY 143 (“Respect for physical integrity generally means that it is prohibited to kill, wound oreven endanger prisoners of war. As we have seen above, Article 13 defines this obligation in a positive manner byspecifying certain acts which constitute grave breaches. It should be emphasized that this protection must be547

9.5.2.3 No Exposure to a Combat Zone or Use as a Human Shield. No POW may
at any time be sent to or detained in areas where he or she may be exposed to the fire of thecombat zone, nor may his or her presence be used to render certain points or areas immune frommilitary operations. 108
9.5.2.4 No Physical Mutilation or Medical, Scientific, or Biological Experiments.
In particular, no POW may be subjected to physical mutilation or to medical or scientificexperiments of any kind that are not justified by the medical, dental, or hospital treatment of the
POW concerned and carried out in his or her interest. 109 The GWS and GWS-Sea also prohibit
biological experiments on the wounded, sick, and shipwrecked. 110
This prohibition was established in the 1949 Geneva Conventions in order to prohibit
expressly criminal practices that occurred during World War II and to prevent the wounded, sick,or shipwrecked in captivity from being used as “guinea pigs” for medical experiments. 111
The prohibition on subjecting the wounded, sick, or shipwrecked to biologicalexperiments does not prevent doctors from trying new treatments that are justified on medical
grounds and are employed solely for therapeutic purposes. 112

enforced not only in regard to the agents of the Detaining Power, but also, should the occasion arise, in regard to
fellow prisoners. Any infraction should be liable to punishment.”) (emphasis added).
108

GPW art. 23 (“No prisoner of war may at any time be sent to, or detained in areas where he may be exposed to
the fire of the combat zone, nor may his presence be used to render certain points or areas immune from military
operations.”); United States v. von Leeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE
THE NMT 588 (“To use prisoners of war as a shield for the troops is contrary to international law.”). Refer to § 5.16
(Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military Operations).
109

GPW art. 13 (“In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientificexperiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner
concerned and carried out in his interest.”).
110

GWS art. 12 (“Any attempts upon their lives, or violence to their persons, shall be strictly prohibited; inparticular, they shall not be murdered or exterminated, subjected to torture or to biological experiments;”).
111

See GWS COMMENTARY 139 (“It was intended, by prohibiting the subjection of wounded and sick to biologicalexperiments, to put an end for all time to criminal practices of which certain prisoners have been the victims, andalso to prevent wounded or sick in captivity from being used as ‘guinea-pigs’ for medical experiments.”). See, e.g.,
United States v. Karl Brandt, et. al (The Medical Case), II TRIALS OF WAR CRIMINALS BEFORE THE NMT 171, 17578 (“(A) High-Altitude Experiments. From about March 1942 to about August 1942 experiments were conducted at
the Dachau concentration camp, for the benefit of the German Air Force, to investigate the limits of humanendurance and existence at extremely high altitudes. The experiments were carried out in a low-pressure chamber inwhich the atmospheric conditions and pressures prevailing at high altitude (up to 68,000 feet) could be duplicated.
The experimental subjects were placed in the low-pressure chamber and thereafter the simulated altitude therein was
raised. Many victims died as a result of these experiments and others suffered grave injury, torture, and illtreatment. … (L) Incendiary Bomb Experiments. From about November 1943 to about January 1944 experiments
were conducted at the Buchenwald concentration camp to test the effect of various pharmaceutical preparations on
phosphorus burns. These burns were inflicted on experimental subjects with phosphorus matter taken fromincendiary bombs, and caused severe pain, suffering, and serious bodily injury.”).
112

GWS COMMENTARY 139 (“But the provision refers only to ‘biological experiments’. Its effect is not to preventthe doctors in charge of wounded and sick from trying new therapeutic methods which are justified on medical
grounds and are dictated solely by a desire to improve the patient’s condition. Doctors must be free to resort to the548

POWs may voluntarily consent to give blood for transfusion or skin for grafting fortherapeutic purposes; such procedures should take place under conditions consistent withgenerally accepted medical standards and controls designed for the benefit of both the donor andthe recipient. 113
9.5.3 Protection Against Insults and Public Curiosity. POWs must at all times beprotected against insults and public curiosity. 114 For example, organizing a parade of POWs
through the civilian population, thereby exposing them to assault, ridicule, and insults, would beprohibited. 115 Displaying POWs in a humiliating fashion on television or on the internet would
also be prohibited. 116 For this reason and others, DoD policy has prohibited the taking of

new remedies which science offers, provided always that such remedies have first been satisfactorily proved to beinnocuous and that they are administered for purely therapeutic purposes.”).
113

Consider AP I art. 11 (“3. Exceptions to the prohibition in paragraph 2 (c) [against removal of tissue or organs
for transplantation except where these acts are justified] may be made only in the case of donations of blood fortransfusion or of skin for grafting, provided that they are given voluntarily and without any coercion or inducement,
and then only for therapeutic purposes, under conditions consistent with generally accepted medical standards andcontrols designed for the benefit of both the donor and the recipient.”).
114

GPW art. 13 (“Likewise, prisoners of war must at all times be protected, particularly against acts of violence or
intimidation and against insults and public curiosity.”).
115

See, e.g., Trial of Lieutenant General Kurt Maelzer, XI U.N. LAW REPORTS 53 (U.S. Military Commission,
Florence, Italy, Sept. 9-14, 1946) (“Some time in January, 1944, Field Marshal Kesselring, commander-in-chief of
the German forces in Italy, ordered the accused who was commander of Rome garrison to hold a parade of several
hundreds of British and American prisoners of war in the streets of the Italian capital. This parade, emulating the
tradition of the triumphal marches of ancient Rome, was to be staged to bolster the morale of the Italian populationin view of the recent allied landings, not very far from the capital. The accused ordered the parade which took place
on 2nd February, 1944. 200 American prisoners of war were marched from the Coliseum, through the main streetsof Rome under armed German escort. ... A film was made of the parade and a great number of photographs taken
which appeared in the Italian press under the caption ‘Anglo Americans enter Rome after all ... flanked by Germanbayonettes.’”) (ellipses in original); United States, et al. v. Araki, et al., Majority Judgment, International Military
Tribunal for the Far East, 49,708, reprinted in NEIL BOISTER & ROBERT CRYER, DOCUMENTS ON THE TOKYOINTERNATIONAL MILITARY TRIBUNAL: CHARTER, INDICTMENT AND JUDGMENTS 574 (2008) (“About 1,000
prisoners captured in the fighting in Malaya arrived in Korea and were marched through the streets of Seoul, Fusan,
and Jinsen where they were paraded before 120,000 Koreans and 57,000 Japanese. These prisoners had previously
been subjected to malnutrition, ill-treatment and neglect so that their physical condition would elicit contempt fromthose who saw them.”); STUART I. ROCHESTER & FREDERICK KILEY, HONOR BOUND: THE HISTORY OF AMERICANPRISONERS OF WAR IN SOUTHEAST ASIA, 1961-1973 196 (1998) (“[H]oping to win increased support from Hanoi’s
patrons, [the North Vietnamese] deliberately marched the group [of POWs] past the Soviet and Chinese embassies
to impress officials there with the numbers of PWs the DRV held. As the column turned onto the main avenue, theprisoners were met by larger and noisier crowds, in some places massed 10 deep (John McKamey estimated as many
as a hundred thousand altogether). Cued by a chanting [Northern Vietnamese POW interrogator-indoctrinator] andincited by blaring loudspeakers and marshals with bullhorns, the throng erupted into a frenzy as the PWs filed past.
The hostile galleries cursed the prisoners, hurled bricks and bottles, and pressed close enough to pummel them withoutstretched arms while guards grabbed the men by the hair or used rifle butts to force them to lower their heads.
Scores of spectators broke through the makeshift barriers, darting in between the Americans—kicking, screaming,
spitting, striking the defenseless men with clenched fists as they stumbled along dazed and now frightened.”).
116

WILLIAM M. HAMMOND, THE UNITED STATES ARMY IN VIETNAM: PUBLIC AFFAIRS, THE MILITARY AND THE
MEDIA, 1962-1968, 272 (1990) (“Hanoi itself diverted public attention in the United States by releasing photographs
showing an angry mob of North Vietnamese jeering a parade of captured American pilots-a blatant violation of the1949 Geneva Conventions which prohibited the exposure of prisoners of war to public curiosity and abuse.”).

549

photographs of detainees except for authorized purposes. 117
9.5.4 Reprisals Prohibited. Measures of reprisal against POWs are prohibited. 118
9.5.5 No Adverse Distinction Based on Race, Nationality, Religion, or Political Belief.
Taking into consideration the provisions of the GPW relating to rank and sex, and subject to any
privileged treatment that may be accorded to them by reason of their state of health, age, or
professional qualifications, all POWs shall be treated alike by the Detaining Power, without any
adverse distinction based on race, nationality, religious belief, or political opinions, or any otherdistinction founded on similar criteria. 119
Distinction based on nationality, political opinion, or other similar criteria may be madeso long as it is not adverse and it is made to advance legitimate interests, such as maintaining
order in the camp. 120
In some cases, the Detaining Power must make distinctions between POWs as to rank orage, state of health, 122 or professional status, 123 as well as to provide specific protection for
women.
121

9.5.6 Due Regard for Women POWs. Women POWs shall be treated with all the regard
due to their sex and shall in all cases benefit from treatment as favorable as that granted tomen. 124 This principle also applies under the GWS and GWS-Sea to women who are wounded,
sick, and shipwrecked. 125
The GPW provides specifically for separate dormitories for women POWs in camps withboth men and women and for separate bathroom facilities for women POWs. 126 The GPW also
117

Refer to § 8.2.2.3 (DoD Practice of Generally Prohibiting Taking Photographs Without Authorization).

118

Refer to § 18.18.3.2 (Reprisals Prohibited by the 1949 Geneva Conventions).

119

GPW art. 16 (“Taking into consideration the provisions of the present Convention relating to rank and sex, andsubject to any privileged treatment which may be accorded to them by reason of their state of health, age or
professional qualifications, all prisoners of war shall be treated alike by the Detaining Power, without any adverse
distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on
similar criteria.”).
120

Refer to § 9.12.1 (Assembling According to Nationality, Language, and Customs).

121

Refer to § 9.22.4 (Rank and Age of POWs); § 9.19.1.2 (Labor Assignment – Officers and Persons of Equivalent
Status).
122

Refer to § 9.14.2.1 (Persons Requiring Special Treatment); § 9.36.1 (Direct Repatriation of Seriously Wounded,
Injured, or Sick POWs).
123

Refer to § 4.5.2.2 (Members Trained as Medical Personnel, but Not Attached to the Medical Service); § 4.5.2.3(Members Who Are Ministers of Religion Without Having Officiated as Chaplains to Their Own Forces).
124

GPW art. 14 (“Women shall be treated with all the regard due to their sex and shall in all cases benefit bytreatment as favourable as that granted to men.”).
125

Refer to § 7.5.1 (Humane Treatment of the Wounded, Sick, and Shipwrecked Without Adverse Distinction).

126

Refer to § 9.11.6.1 (Separate Dormitories for Women); § 9.11.5.2 (Sanitary Conveniences (e.g., latrines,
bathrooms)).

550

provides for women POWs undergoing disciplinary punishment or serving a sentence to be
confined in separate quarters under the supervision of women. 127 Although the GPW does not
specifically provide for this, female POWs should be under the immediate supervision of
women. 128
9.6 SECURITY MEASURES WITH RESPECT TO POWS
Although POWs must always be treated humanely, the confinement and mode of treating
a POW may be varied during captivity for security purposes. 129 For example, POWs and theirproperty may be searched and secured, when operationally necessary (e.g., immediately upon
capture). 130
9.6.1 Search of POWs. POWs may be searched for security reasons, intelligence
purposes, and other administrative reasons. For example, POWs may be searched for concealed
weapons, items of intelligence value, or contraband, such as cameras and cell phones. 131
The dignity and honor of the POW being searched should be protected to the greatest
degree possible under the circumstances. 132 The person conducting the search should avoid
doing anything unnecessary or saying anything likely to be regarded as indecent or inappropriate.
In some circumstances, it may be appropriate for a witness to observe the search so as to protect
127

Refer to § 9.27.6.1 (Premises Where Disciplinary Punishments Are to Be Served); § 9.28.7.2 (Confinement of
Women POWs Who Have Been Sentenced).
128

Refer to § 8.7.1 (Gender and Family Segregation).

129

LIEBER CODE art. 75 (“Prisoners of war are subject to confinement and imprisonment such as may be deemednecessary on account of safety, but they are to be subjected to no other intentional suffering or indignity. The
confinement and mode of treating a prisoner may be varied during his captivity according to the demands ofsafety.”). See also GPW COMMENTARY 140 (“The requirement of humane treatment and the prohibition of certain
acts inconsistent with it are general and absolute in character. They are valid at all times, and apply, for example, tocases where repressive measures are legitimately imposed on a protected person, since the dictates of humanity must
be respected even if measures of security or repression are being applied.”).
130

See Trial of Erich Weiss and Wilhelm Mundo, Relevance of the Plea of Self-Defence in War Crime Trials, XIII
U.N. LAW REPORTS 149, 150 (U.S. General Military Government Court, Ludwigsburg, Germany, Nov. 9-10, 1945)(“In the light of the foregoing the rules contained in Articles 2 and 3 of the Geneva Convention, 1929, would appear
to be subject to the principle that, given faithful observation of these provisions by the detaining authorities, thelatter are generally entitled to use the force reasonably necessary to secure the custody of the prisoners or to protect
themselves from an attack by the prisoners.”).
131

For example, 1997 MULTI-SERVICE DETENTION REGULATION § 2-1.a.(1) (“The commanding officer of thecapturing unit will ensure that: … (a) Each EPW/RP will be searched immediately after capture. … Weapons,ammunition, and equipment or documents with intelligence value will be confiscated and turned over to the nearest
intelligence unit. Propaganda and other Psychological Operations (PSYOP) materials will be confiscated, identified
by the EPW/RP name and ISN and turned over to the supporting EPW/CI PSYOP unit through intelligencechannels.”); Office of the Provost Marshal General, World War II - A Brief History 492-93 (1946) (“Each prisoner
was searched and disarmed immediately upon capture and contraband articles were taken from him, including all
equipment issued to him by his government, except clothing. He was permitted to retain his helmet and gas mask in
combat zones. Contraband included cameras, binoculars, signalling devices, compasses, and such other articles asmight be useful to him in an escape. All military papers, documents, maps, and diaries were retained for intelligenceexamination.”).
132

Refer to § 9.5 (Humane Treatment and Basic Protections for POWs).

551

both the person being searched from abuse and the person conducting the search from unfoundedaccusations of abuse.
It is appropriate for female POWs to be searched by female personnel of the Detaining
Power, if possible. 133 This practice helps reduce the risk of accusations of indecent behavior.
9.6.2 Securing POWs With Handcuffs and Other Security Devices. When necessary forsecurity reasons (e.g., to prevent escape or destruction of documents), POWs may be secured
temporarily with handcuffs, flex cuffs, blindfolds, or other security devices. 134
9.6.3 Search of POW Property. Items in the possession of POWs may be removed andsearched for security and intelligence purposes, but certain items of personal or sentimental value
must be returned as soon as possible. 135
9.7 POW EFFECTS AND ARTICLES OF PERSONAL USE
9.7.1 POW Effects and Articles of Personal Use. All effects and articles of personal use,
except arms, horses, military equipment, and military documents, shall remain in the possessionof POWs, likewise their metal helmets and gas masks and like articles issued for personal
protection. 136 Effects and articles used for their clothing or feeding shall likewise remain in theirpossession, even if such effects and articles are part of their regulation military equipment. 137
These rules do not prohibit the search of POW effects and articles of personal use. 138
Items that may otherwise be legitimately impounded (e.g., articles of value being
withdrawn for reasons of security) are not precluded from being impounded because they may becharacterized as an effect or article of personal use or an effect or article used for clothing or
feeding. 139
9.7.2 Identity Documents. At no time should POWs be without identity documents. 140
133

For example, 1997 MULTI-SERVICE DETENTION REGULATION § 2-1.a.(1) (“The commanding officer of thecapturing unit will ensure that: … (a) Each EPW/RP will be searched immediately after capture. Use males tosearch males and females to search female prisoners, when possible.”).
134

See Winston Churchill, Prime Minster, United Kingdom, Oral Answers to Questions, Oct. 13, 1942, HANSARD,
383 HOUSE OF COMMONS DEBATES § 1500 (“His Majesty’s Government have never countenanced any general orderfor the tying up of prisoners on the field of battle. Such a process, however, may be necessary from time to time
under stress of circumstances, and may indeed be in the best interest of the safety of the prisoners themselves.”).
135

Refer to § 9.7.3 (Badges, Decorations, and Articles Having Above All a Personal or Sentimental Value).

136

GPW art. 18 (“All effects and articles of personal use, except arms, horses, military equipment and military
documents, shall remain in the possession of prisoners of war, likewise their metal helmets and gas masks and likearticles issued for personal protection.”).
137

GPW art. 18 (“Effects and articles used for their clothing or feeding shall likewise remain in their possession,even if such effects and articles belong to their regulation military equipment.”).
138

Refer to § 9.6.3 (Search of POW Property).

139

Refer to § 9.7.4 (Money and Articles of Value).

140

GPW art. 18 (“At no time should prisoners of war be without identity documents.”).

552

The Detaining Power shall supply such documents to POWs who possess none. 141
Identity documents may be seized when necessary (e.g., intelligence purposes), provided
that the Detaining Power supplies a replacement identity document. 142
9.7.3 Badges, Decorations, and Articles Having Above All a Personal or Sentimental
Value. Badges of rank and nationality, decorations, and articles having “above all” a personal or
sentimental value may not be taken from POWs. 143 Such items might include a ring, wristwatch,personal correspondence, or family photographs.
This rule does not prohibit the search of items, including a search in order to determine
whether the items in question have above all a personal or sentimental value. 144
Items that may otherwise be legitimately impounded (e.g., articles of value being
withdrawn for reasons of security) are not precluded from being impounded because of theirpersonal or sentimental value to the POW. 145
9.7.4 Money and Articles of Value. Sums of money carried by POWs may not be taken
away from them except by order of an officer, and after the amount and particulars of the ownerhave been recorded in a special register and an itemized receipt has been given, legibly inscribedwith the name, rank, and unit of the person issuing this receipt. 146
Sums in the currency of the Detaining Power, or that are changed into such currency at
the POW’s request, shall be placed to the credit of the POW’s account as provided for in Article
64 of the GPW. 147
The Detaining Power may withdraw articles of value from POWs only for reasons of
security; when such articles are withdrawn, the procedure laid down for sums of money

141

GPW art. 18 (“The Detaining Power shall supply such documents to prisoners of war who possess none.”).

142

GPW COMMENTARY 168 (“It is obvious, however, that no Detaining Power would undertake not to seize theindividual service records of combatants immediately following capture, since valuable information might becontained therein. The Convention does not, therefore, restrict the right of the Detaining Power to seize military
documents; in this respect it departs from the 1929 text but also stipulates that at no time should prisoners of war bewithout identity documents. As we have already seen in connection with Article 17, the Detaining Power must
therefore supply an identity document in place of any individual service record which it impounds.”).

143

GPW art. 18 (“Badges of rank and nationality, decorations and articles having above all a personal or sentimental
value may not be taken from prisoners of war.”).
144

Refer to § 9.6.3 (Search of POW Property).

145

Refer to § 9.7.4 (Money and Articles of Value).

146

GPW art. 18 (“Sums of money carried by prisoners of war may not be taken away from them except by order of
an officer, and after the amount and particulars of the owner have been recorded in a special register and an itemized
receipt has been given, legibly inscribed with the name, rank and unit of the person issuing the said receipt.”).
147
GPW art. 18 (“Sums in the currency of the Detaining Power, or which are changed into such currency at theprisoner’s request, shall be placed to the credit of the prisoner’s account as provided in Article 64.”). Refer to§ 9.18.6.1 (Cash in POW Hands Taken at the Time of Capture); § 9.18.6 (POW Accounts).

553

impounded shall apply. 148 For example, an article of value may be impounded for reasons of
security, even if it constitutes an article of personal use or an article having above all a personalor sentimental value. 149
Such objects, likewise sums taken away in any currency other than that of the Detaining
Power and the conversion of which has not been asked for by the owners, shall be kept in thecustody of the Detaining Power and shall be returned in their initial shape to POWs at the end of
their captivity. 150
9.7.4.1 Unexplained Possession of Large Sums of Money by POWs. The
unexplained possession by a POW of a large sum of money justifiably leads to the inference thatsuch funds are not his or her own property and are in fact either property of the enemy
government or property that has been looted or otherwise stolen. 151
9.7.5 No Bartering With POWs for Personal Effects. It is not proper for members of theforces of the Detaining Power to engage in bartering and other transactions with POWs
concerning their personal effects. 152
9.7.6 Accountability for Impounded Personal Effects. In addition to the specificrequirements for seized money or articles of value, it is a best practice for other items taken from
POWs to be itemized and separated (packaged) with the name, unit, service number of the POW,
and other identifying information to permit accountability, safekeeping, and return whenappropriate to the POW.
9.8 INTERROGATION OF POWS
The law of war does not prohibit interrogation of POWs, but specifies conditions andlimitations for conducting interrogation.
9.8.1 Humane Treatment During Interrogation. Interrogation must be carried out in amanner consistent with the requirements for humane treatment, including the prohibition against

148

GPW art. 18 (“The Detaining Power may withdraw articles of value from prisoners of war only for reasons of
security; when such articles are withdrawn, the procedure laid down for sums of money impounded shall apply.”).
149

LEVIE, POWS 113 (“[A] prisoner of war might have an antique pocket watch with a compass in the stem. Even
though such a watch falls within the category of ‘articles of personal use’ [Article 18, first paragraph] or of ‘articles
having above all a personal or sentimental value’ [Article 18, third paragraph], which prisoners of war may normallyretain, no Detaining Power could be censured for taking the watch and placing it in safekeeping until the owner isrepatriated.”).

150

GPW art. 18 (“Such objects, likewise sums taken away in any currency other than that of the Detaining Powerand the conversion of which has not been asked for by the owners, shall be kept in the custody of the Detaining
Power and shall be returned in their initial shape to prisoners of war at the end of their captivity.”).
151

1956 FM 27-10 (Change No. 1 1976) ¶94c (“The unexplained possession by a prisoner of war of a large sum ofmoney justifiably leads to the inference that such funds are not his own property and are in fact either property of theenemy government or property which has been looted or otherwise stolen.”).
152

1956 FM 27-10 (Change No. 1 1976) ¶94b (“It is not proper for members of the forces of the Detaining Power toengage in bartering and other transactions with prisoners of war concerning their personal effects.”).

554

acts of violence or intimidation, and insults. 153
No physical or mental torture, nor any other form of coercion, may be inflicted on POWs
to secure from them information of any kind whatever. 154 POWs who refuse to answer may not
be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind. 155
Prohibited means include imposing inhumane conditions, 156 denial of medical treatment, or theuse of mind-altering chemicals. 157
9.8.2 Language of Interrogation. The questioning of POWs shall be carried out in alanguage that they understand. 158
9.8.3 Additional U.S. Law and Policy on Interrogation. U.S. law and policy impose
additional requirements on the interrogation of POWs. 159
9.8.4 Accountability Information That POWs Are Bound to Provide Upon Questioning.
Every POW, when questioned on the subject, is bound to give only his or her surname, firstnames and rank, date of birth, and army, regimental, personal or serial number, or, failing this,equivalent information. 160 If POWs willfully infringe this rule, they may render themselves
liable to a restriction of the privileges accorded to their rank or status. 161 However, POWs who
refuse to provide this information may not be coerced or exposed to any other unpleasant or
153

Refer to § 9.5 (Humane Treatment and Basic Protections for POWs).

154

GPW art. 17 (“No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of
war to secure from them information of any kind whatever.”).
155

GPW art. 17 (“Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasantor disadvantageous treatment of any kind.”).
156

Trial of Erich Killinger and Four Others (The Dulag Luft Case), III U.N. Law REPORTS 67 (British Military
Court, Wuppertal, Nov. 26-Dec. 3, 1945) (“The function of Dulag Luft was, shortly, to obtain information of an
operational and vital nature from the captured crews of Allied machines. The allegation was that excessive heatingof the prisoners cells took place at Dulag Luft between the dates laid in the charge for the deliberate purpose ofobtaining from prisoners of war information of a kind which under the Geneva Convention they were not bound to
give, and that the accused were concerned in that ill-treatment. The Prosecution also alleged a ‘lack of and refusalof required medical attention’ and ‘in some cases, blows.’ ... Killinger, Junge and Eberhardt were found guilty andsentenced to imprisonment for five, five and three years respectively. The remaining two accused were found not
guilty.”).

157

U.S. Army, Office of The Judge Advocate General, JAGW 1961/1157, Memo re: Use of “Truth Serum” in
Questioning Prisoners of War, Jun. 21, 1961, LEVIE, DOCUMENTS ON POWS 708, 709 (“3. In view of the foregoing,
it is the opinion of this division that the suggested use of a chemical ‘truth serum’ during the questioning ofprisoners of war would be in violation of the obligations of the United States under the Geneva Convention Relative
to the Treatment of Prisoners of War.”).
158

GPW art. 17 (“The questioning of prisoners of war shall be carried out in a language which they understand.”).

159

Refer to, e.g., § 8.4.2 (Additional U.S. Law and Policy on Interrogation).

160

GPW art. 17 (“Every prisoner of war, when questioned on the subject, is bound to give only his surname, firstnames and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent
information.”).
161

GPW art. 17 (“If he wilfully infringes this rule, he may render himself liable to a restriction of the privileges
accorded to his rank or status.”).

555

disadvantageous treatment of any kind for failing to respond.
The provision of accountability information is important because it allows the Detaining
Power to fulfill its obligations under the GPW. For example, the Detaining Power requires thisinformation to establish lists of POWs for evacuation. 162 In addition, the Detaining Power isrequired to gather further information on POWs to facilitate notification of their families. 163
9.8.4.1 POWs Unable to State Their Identity. POWs who, owing to their physicalor mental condition, are unable to state their identity, shall be handed over to the medical
service. 164 The identity of such POWs shall be established by all possible means, subject to theprohibition on physical or mental torture, or coercion, as well as the prohibition on threats,
insults, or exposure to unpleasant or disadvantageous treatment. 165
9.9 EVACUATION FROM COMBAT AREAS
POWs shall be evacuated, as soon as possible after their capture, to camps situated in anarea far enough from the combat zone for them to be out of danger. 166 POWs shall not be
unnecessarily exposed to danger while awaiting evacuation from a fighting zone. 167
9.9.1 Delay in Evacuation for Medical Reasons. Only those POWs who, owing towounds or sickness, would run greater risks by being evacuated than by remaining where they
are, may be temporarily kept back in a danger zone. 168
9.9.2 Conditions of Evacuation. The evacuation of POWs shall always be effected
humanely and in conditions similar to those for the forces of the Detaining Power in theirchanges of station. 169 The Detaining Power shall supply POWs who are being evacuated with
sufficient food and potable water, and with the necessary clothing and medical attention. 170 The
Detaining Power shall take all suitable precautions to ensure their safety during evacuation, and162

Refer to § 9.9.2 (Conditions of Evacuation).

163

Refer to § 9.31.1 (Accountability Information That the Detaining Power Should Collect).

164

GPW art. 17 (“Prisoners of war who, owing to their physical or mental condition, are unable to state theiridentity, shall be handed over to the medical service.”).

165

GPW art. 17 (“The identity of such prisoners shall be established by all possible means, subject to the provisionsof the preceding paragraph.”).
166

GPW art. 19 (“Prisoners of war shall be evacuated, as soon as possible after their capture, to camps situated in anarea far enough from the combat zone for them to be out of danger.”).
167

GPW art. 20 (“Prisoners of war shall not be unnecessarily exposed to danger while awaiting evacuation from afighting zone.”).
168

GPW art. 19 (“Only those prisoners of war who, owing to wounds or sickness, would run greater risks by being
evacuated than by remaining where they are, may be temporarily kept back in a danger zone.”).
169

GPW art. 20 (“The evacuation of prisoners of war shall always be effected humaneIy and in conditions similar to
those for the forces of the Detaining Power in their changes of station.”).
170

GPW art. 20 (“The Detaining Power shall supply prisoners of war who are being evacuated with sufficient foodand potable water, and with the necessary clothing and medical attention.”).

556

shall establish as soon as possible a list of the POWs who are evacuated. 171
Provided that the requirements of humane treatment are met, the Detaining Power may
subject POWs to security measures while evacuating them away from the combat zone. For
example, POWs may be handcuffed, flex-cuffed, or blindfolded for security reasons. 172
9.9.3 Release Under Unusual Conditions Rather Than Evacuation. When persons
entitled to protection as POWs have fallen into the power of an adverse party under unusual
conditions of combat that prevent their evacuation as provided for in Part III, Section I, of the
GPW, they may be released, provided that feasible precautions are taken to ensure their safety. 173
Release in such circumstances is permissible, but is not required. 174 In some cases,
enemy forces may give their parole. 175
9.9.3.1 Unusual Conditions of Combat Preventing Evacuation. Unusual
conditions of combat may include airborne operations, commando raids, and long-range
reconnaissance patrols. 176
9.9.3.2 Feasible Precautions to Ensure Safety. POWs may be released in thesecircumstances only if feasible precautions are taken to ensure their safety. 177 For example, along-range reconnaissance patrol need not make itself militarily ineffective by handing over all
171

GPW art. 20 (“The Detaining Power shall take all suitable precautions to ensure their safety during evacuation,and shall establish as soon as possible a list of the prisoners of war who are evacuated.”).
172

Refer to § 9.6 (Security Measures With Respect to POWs).

173

Consider AP I art. 41(3) (“When persons entitled to protection as prisoners of war have fallen into the power ofan adverse Party under unusual conditions of combat which prevent their evacuation as provided for in Part III,
Section I, of the Third Convention, they shall be released and all feasible precautions shall be taken to ensure theirsafety.”).
174

Cf. APPENDIX TO 1985 CJCS MEMO ON AP I, ANNEX-3 (providing a draft proposed understanding to AP I: “9. It
is the understanding of the United States that Article 41, paragraph 3 [of AP I], does not obligate a Detaining Powerto release prisoners of war simply because these individuals cannot be immediately evacuated from a combat zone.
The United States continues to recognize, however, an obligation to provide for the safety of such personnel.”);2004 UK MANUAL ¶8.32.1 (“If, because of unusual conditions of combat, it is not possible to evacuate prisoners ofwar, they are to be released and all feasible precautions taken to ensure their safety. There is no obligation to releaseprisoners of war in circumstances in which safe evacuation is temporarily impossible. In such cases, prisoners of
war may be held until release or evacuation is possible. There is, however, a continuing obligation to take all
feasible measures to provide for the safety of such prisoners of war so long as they remain in the custody of thedetaining power. This principle admits of no exception even in the case of airborne, commando, or special forces
operations, although the circumstances of the operation may necessitate rigorous supervision of and restraint upon
the movement of prisoners of war.”).
175

Refer to § 9.11.2 (Parole of POWs).

176

BOTHE, PARTSCH, & SOLF, NEW RULES 224 (AP I art. 41, ¶2.4) (“Articles 19 and 20 of the Third Convention
require the prompt and humane evacuation of prisoners of war from the combat zone to places out of the danger
area. In certain types of operations, particularly airborne operations, commando raids, and long range
reconnaissance patrols, compliance with these articles is clearly impractical, and there has been dispute as to what isrequired in such cases.”).

177

Refer to § 5.2.3.2 (What Precautions Are Feasible).

557

its supplies to POWs whom it has captured. 178 However, the patrol should take reasonable steps
under the circumstances to help ensure the POWs’ safety and survival, such as providing themwith a modicum of food and water. 179
9.9.3.3 Accountability Measures. In addition, it is a best practice to take feasible
measures to account for the persons captured and released, such as recording: (1) full names, (2)serial numbers, (3) unit affiliation, and (4) the time, date, and location of capture and release.
9.10 TRANSIT OR SCREENING FACILITIESPOWs may be sent to transit or screening facilities before internment in a POW camp.
For example, special interrogation centers have been used as screening facilities to interrogate
POWs before their internment in the POW camp. 180
9.10.1 Sending of Capture Cards in Transit or Screening Camps. Even in transit orscreening camps, POWs are to be enabled to send capture cards within one week after arrival at acamp. 181
9.10.2 Transit or Screening Camps Near Military Operations. Facilities within a zone ofmilitary operations are often established in order to house POWs captured during military
operations in that particular zone that, due to their proximity to the fighting, are not able to meet
all the requirements of the GPW. 182 Transit or screening facilities must, however, provide

178

Cf. XV OFFICIAL RECORDS OF THE CDDH 384 (Committee III Report, CDDH/236/Rev.1, ¶24) (“Paragraph 3
dealing with the release of prisoners who could not be evacuated proved quite difficult. The phrase ‘unusual
conditions of combat’ was intended to reflect the fact that that circumstance would be abnormal. What, in fact, mostrepresentatives referred to was the situation of the long distance patrol which is not equipped to detain and evacuate
prisoners. The requirement that all ‘feasible precautions’ be taken to ensure the safety of released prisoners wasintended to emphasize that the detaining power, even in those extraordinary circumstances, was expected to take allmeasures that were practicable in the light of the combat situation. In the case of the long distance patrol, it need notrender itself ineffective by handing the bulk of its supplies over to the released prisoners, but it should do all that it
reasonably can do, in view of all the circumstances, to ensure their safety.”).
179

1958 UK MANUAL ¶137 note 1 (“Whether a commander may release prisoners of war in the circumstances statedin the text [commando operations and other situations in which it is not feasible to care for POWs] is not clear. No
provision is made in the Convention [the GPW] for such release, and there may well be occasions when such a
release will deprive the prisoners of war of such maintenance and food as is available, as, for example, if they are
released in a desert or jungle or in mountainous districts. If such a release be made, it would seem clear that thecommander should supply the prisoners with that modicum of food, water, and weapons as would give them achance of survival.”).

180

For example, John Brown Mason, German Prisoners of War in the United States, 39 AJIL 198, 203 (1945) (“InAmerican practice [during World War II], the prisoners are questioned at special interrogation centers. Practicallyno complaint has been made by the prisoners to the Swiss Legation about the treatment in these transient centers.”).
181

Refer to § 9.20.1 (Capture, Health, or Transfer Card).

182

GPW COMMENTARY 176 (“The camps mentioned in the present paragraph are those which the military
authorities may have to establish in a combat zone in order to house prisoners captured during military operations inthat particular zone. In view of the fact that they are near the fighting zone, it is not always possible to require thatsuch camps should fulfil all the material conditions specified in the Convention.”).

558

POWs reasonable protection from the effects of combat, basic sanitation, and food and water. 183
If POWs must, during evacuation, pass through transit camps, their stay in such camps
shall be as brief as possible. 184
9.10.3 Facilities of a Permanent Nature. Transit or screening camps of a permanent kindshall be fitted out under conditions similar to those described in Section II of the GPW for
regular internment camps for POWs, and the POWs in those camps shall have the same
treatment as in other camps. 185
9.10.4 Use of Ships for Temporary Detention. POWs may be detained temporarily on
board a ship if operational or humanitarian needs dictate, pending a reasonable opportunity totransfer them to a shore facility, or to another vessel for evacuation to a shore facility. 186 For
example, they may be temporarily detained on board naval vessels: (a) while being transported
between land facilities; or (b) if such action would appreciably improve their safety or healthprospects, such as avoidance of exposure to severe environmental or combat conditions, or
improved access to medical care for those requiring it. Such limited detention does not violate
the requirement for internment of POWs on land. 187
9.11 GENERAL CONDITIONS IN POW CAMPS: LOCATION, SAFETY, HYGIENE, AND LIVING
CONDITIONS
9.11.1 Internment in POW Camps. The Detaining Power may subject POWs tointernment. 188 It may impose on them the obligation of not leaving, beyond certain limits, thecamp where they are interned, or if that camp is fenced in, of not going outside its perimeter. 189
9.11.1.1 Prohibition on Close Confinement. Subject to the provisions of the GPW
183

Refer to § 9.9.2 (Conditions of Evacuation).

184

GPW art. 20 (“If prisoners of war must, during evacuation, pass through transit camps, their stay in such camps
shall be as brief as possible.”).
185

GPW art. 24 (“Transit or screening camps of a permanent kind shall be fitted out under conditions similar to
those described in the present Section, and the prisoners therein shall have the same treatment as in other camps.”).
186
For example, 1997 MULTI-SERVICE DETENTION REGULATION § 2-1.b (“Special policy pertaining to thetemporary detention of EPW, CI, RP and other detained persons aboard United States Naval Vessels: (1) Detentionof EPW/RP on board naval vessels will be limited. (2) EPW recovered at sea may be temporarily held on board as
operational needs dictate, pending a reasonable opportunity to transfer them to a shore facility, or to another vessel
for transfer to a shore facility. (3) EPW/RP may be temporarily held aboard naval vessels while being transported
between land facilities. They may also be treated and temporarily quartered aboard naval vessels incidental to theirtreatment, to receive necessary and appropriate medical attention if such detention would appreciably improve theirhealth or safety prospects. (4) Holding of EPW/RP on vessels must be temporary, limited to the minimum period
necessary to evacuate them from the combat zone or to avoid significant harm that would be faced if detained onland. (5) Use of immobilized vessels for temporary holding of EPW/RP is not authorized without SECDEF
approval.”).
187

Refer to § 9.11.3.1 (Location on Land).

188

GPW art. 21 (“The Detaining Power may subject prisoners of war to internment.”).

189

GPW art. 21 (“It may impose on them the obligation of not leaving, beyond certain limits, the camp where they
are interned, or if the said camp is fenced in, of not going outside its perimeter.”).

559

relative to penal and disciplinary sanctions, POWs may not be held in close confinement except
where necessary to safeguard their health and then only during the continuation of thecircumstances that make such confinement necessary. 190
9.11.2 Parole of POWs. POWs may be partially or wholly released on parole or promise,in so far as is allowed by the laws of the Power on which they depend. 191 Such measures shallbe taken particularly in cases where this may contribute to the improvement of their state ofhealth. 192 No POW shall be compelled to accept liberty on parole or promise. 193
Upon the outbreak of hostilities, each party to the conflict shall notify the adverse partyof the laws and regulations allowing or forbidding its own nationals to accept liberty on parole orpromise. 194 U.S. policy prohibits U.S. servicemembers from accepting parole or special favors
from the enemy. 195
POWs who are paroled or who have given their promise in conformity with the laws andregulations so notified are bound on their personal honor scrupulously to fulfill, both towards thePower on which they depend and towards the Power that has captured them, the engagements of
their paroles or promises. 196 In such cases, the Power on which they depend is bound neither torequire nor to accept from them any service incompatible with the parole or promise given. 197
9.11.3 Location of POW Camps.
9.11.3.1 Location on Land. POWs may be interned only in premises located onland. 198 This rule is intended to ensure that POWs are interned in a relatively safe and healthy190

GPW art. 21 (“Subject to the provisions of the present Convention relative to penal and disciplinary sanctions,prisoners of war may not be held in close confinement except where necessary to safeguard their health and then
only during the continuation of the circumstances which make such confinement necessary.”).
191

GPW art. 21 (“Prisoners of war may be partially or wholly released on parole or promise, in so far as is allowedby the laws of the Power on which they depend.”).
192

GPW art. 21 (“Such measures shall be taken particularly in cases where this may contribute to the improvementof their state of health.”).
193

GPW art. 21 (“No prisoner of war shall be compelled to accept liberty on parole or promise.”).

194

GPW art. 21 (“Upon the outbreak of hostilities, each Party to the conflict shall notify the adverse Party of thelaws and regulations allowing or forbidding its own nationals to accept liberty on parole or promise.”).
195

Refer to § 9.39.1.3 (Code of Conduct – Article III).

196

GPW art. 21 (“Prisoners of war who are paroled or who have given their promise in conformity with the laws andregulations so notified, are bound on their personal honour scrupulously to fulfil, both towards the Power on which
they depend and towards the Power which has captured them, the engagements of their paroles or promises.”);HAGUE IV REG. art. 10 (“Prisoners of war may be set at liberty on parole if the laws of their country allow, and insuch cases, they are bound, on their personal honour, scrupulously to fulfil, both towards their own Government and
the Government by whom they were made prisoners, the engagements they have contracted. In such cases their own
Government is bound neither to require of nor accept from them any service incompatible with the parole given.”).
197

GPW art. 21 (“In such cases, the Power on which they depend is bound neither to require nor to accept from themany service incompatible with the parole or promise given.”).
198

GPW art. 22 (“Prisoners of war may be interned only in premises located on land and affording every guaranteeof hygiene and healthfulness.”).

560

environment. For example, in prior conflicts, POWs interned on ships were not held in hygienic
and humane conditions. Similarly, POWs held on ships faced increased risk from the dangers ofwar.
Because the purpose of the rule is to provide for the detention of POWs in a relatively
safe and healthy environment, detention aboard ship for POWs captured at sea or pending theestablishment of suitable facilities on land is nonetheless consistent with the GPW if detention ona ship provides the most appropriate living conditions for POWs. 199 Ships may also be used totransport POWs or for screening. 200
9.11.3.2 Use of Penitentiaries as POW Camps. Except in particular cases that are
justified by the interests of the POWs themselves, POWs shall not be interned inpenitentiaries. 201 This rule reflects the principle that POW detention is not punitive, but also
recognizes that penitentiaries may sometimes provide the most appropriate lodging. 202
9.11.3.3 Location Outside the Theater of Military Operations. The GPW does notprohibit locating POW camps outside the theater of military operations, and there is much State
practice in conducting detention operations outside of the theater in which POWs were
captured. 203 Although the GC imposes geographic restrictions on the transfer of protected
199

For example, Gregory P. Noone, Christian P. Fleming, Robert P. Morean, John V. Danner, Jr., Philip N. Fluhr,Jr., Jonathan I. Shapiro, Sandra L. Hodgkinson, Edward J. Cook, & Dillon L. Ross IV, Prisoners of War in the 21stCentury: Issues in Modern Warfare, 50 NAVAL LAW REVIEW 1, 16 (2004) (“During OIF [Operation Iraqi
Freedom], a U.S. naval vessel in the Persian Gulf served as a temporary detention facility for EPWs. EPW
internment camps in Iraq were not yet ready for prisoners. Additionally, Kuwait refused to allow Coalition forces tobuild EPW camps in Kuwait and they would not allow Coalition forces to bring EPWs into Kuwait. The cavernous
hold of USS DUBUQUE (LPD-8), an amphibious assault ship, was converted into a detention facility where
prisoners were held and interrogated as EPWs until camps were operational on shore.”); Joint Chiefs of Staff, Memo
re: Policy Concerning Temporary Detention of Prisoners of War, Civilian Internees, and Other Detained Persons
Aboard Naval Vessels, ¶2a.(3) -¶2b (Aug. 24, 1984) (“PW/CI/DET may be temporarily held on board naval vessels
if such detention would appreciably improve the safety or health prospects for the PW/CI/DET. b. Holding of
PW/CI/DET on board vessels must be truly temporary, limited to the minimum period necessary to evacuate the
PW/CI/DET from the combat zone or to avoid the significant harm the PW/CI/DET would face if detained onland.”); 2004 UK MANUAL ¶8.37.1 footnote 123 (“[Temporary internment on board ship for the purpose ofevacuation from the combat zone] was done during the Falklands conflict 1982, with the concurrence of the ICRC,
because there was nowhere suitable to hold PW on the Falklands Islands and the intention was to repatriate them asquickly as possible.”).
200

Refer to § 9.10.4 (Use of Ships for Temporary Detention).

201

GPW art. 22 (“Except in particular cases which are justified by the interest of the prisoners themselves, they shallnot be interned in penitentiaries.”).
202

For example, I REPORT OF THE INTERNATIONAL COMMITTEE OF THE RED CROSS ON ITS ACTIVITIES DURING THE
SECOND WORLD WAR (SEPTEMBER 1, 1939 – JUNE 30, 1947) 248 (1948) (“Experience in the recent War showed thata great variety of buildings and quarters were put into service. A converted penitentiary, for example, proved abetter lodging than many other buildings.”).
203

For example, Martin Tollefson, Enemy Prisoners of War, 32 IOWA LAW REVIEW 51, 59 (1946) (“The total
number of enemy prisoners of war interned within the United States [during World War II] was 435,788. Included
were 378,898 Germans, 51,455 Italians, and 5,435 Japanese. The number of prisoners of war in the United States
was somewhat negligible prior to January 1943. It increased rapidly beginning with May of that year, largely as aresult of the success of the African campaign. The increase continued irregularly but speedily until it reached its
peak shortly after the surrender of Germany, when the influx of prisoners of war from Europe ceased.”).

561

persons held in occupied territory, the GPW does not impose such restrictions on the transfer of
POWs from the territory in which they were captured. 204
Locating POW camps outside the theater of operations may be necessary for security(such as to discourage escape or reduce risk of enemy raids to release POWs) or other military
reasons, such as improving the safety of POWs.
9.11.4 Safety of POW Camps.
9.11.4.1 Avoidance of the Combat Zone. POW camps should be situated in anarea far enough from the combat zone for POWs to be out of danger. 205
9.11.4.2 Sharing Information on the Location of POW Camps. Detaining Powers
shall give the Powers concerned, through the intermediary of the Protecting Powers, all useful
information regarding the geographic location of POW camps. 206
9.11.4.3 Marking of POW Camps. Whenever military considerations permit,
POW camps shall be indicated in the daytime by the letters “PW” or “PG,” placed so as to beclearly visible from the air. 207 The Powers concerned may, however, agree upon any othersystem of marking. 208 No place, other than an internment camp, shall be marked as such. 209
The caveat that POW camps need to be marked, as such, only when militaryconsiderations permit was intended to allow for camps not to be marked, e.g., if marking camps
would provide landmarks that would facilitate aerial bombardment by the enemy. 210
9.11.4.4 Air-Raid Shelters and Protective Measures for POWs. POWs shall haveshelters against air bombardment and other hazards of war, to the same extent as the local
civilian population. 211 With the exception of those engaged in the protection of their quarters
against these hazards, they may enter such shelters as soon as possible after the giving of the204

Refer to § 11.12.3 (Prohibition Against Forcible Transfers and Deportations).

205

Cf. GPW art. 19 (“Prisoners of war shall be evacuated, as soon as possible after their capture, to camps situated in
an area far enough from the combat zone for them to be out of danger.”).
206

GPW art. 23 (“Detaining Powers shall give the Powers concerned, through the intermediary of the Protecting
Powers, all useful information regarding the geographical location of prisoner of war camps.”).
207

GPW art. 23 (“Whenever military considerations permit, prisoner of war camps shall be indicated in the day-timeby the letters PW or PG, placed so as to be clearly visible from the air.”).
208

GPW art. 23 (“The Powers concerned may, however, agree upon any other system of marking.”).

209

GPW art. 23 (“Only prisoner of war camps shall be marked as such.”).

210

II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 254 (“Miss BECKETT (United
Kingdom) said that her Delegation was opposed to any mandatory provision regarding the marking of prisoner of
war camps, owing to the small area of the United Kingdom. Camps so marked would provide excellent landmarksin the event of aerial bombardment. Large countries might conclude special agreements on the matter.”).
211

GPW art. 23 (“Prisoners of war shall have shelters against air bombardment and other hazards of war, to the same
extent as the local civilian population.”).

562

alarm. 212 Any other protective measure taken in favor of the population shall also apply to
POWs. 213
9.11.4.5 Fire Precautions. All precautions must be taken in POW camps against
the danger of fire. 214
9.11.5 Hygiene of POW Camps. POWs may be interned only in premises affording
every guarantee of hygiene and healthfulness. 215 POWs interned in unhealthy areas, or where
the climate is injurious for them, shall be removed as soon as possible to a more favorable
climate. 216
9.11.5.1 Necessary Sanitary Measures. The Detaining Power shall be bound to
take all sanitary measures necessary to ensure the cleanliness and healthfulness of camps and toprevent epidemics. 217 For example, the Detaining Power should give POWs medical
examinations upon arrival, disinfect them, and provide them with any necessary inoculations. 218
In addition, quarters should be kept free from vermin, and POWs suffering from contagious
diseases should be placed in quarantine as needed. 219
Although the Detaining Power is ultimately responsible for sanitary conditions, theDetaining Power may require POWs to assist in ensuring that POW camps are clean and healthy.
For example, POWs may be assigned cleaning duties. 220 Additionally, POWs may be required
to take baths or showers if necessary for health reasons. 221 Similarly, POWs may be required toreceive inoculations to prevent the spread of contagious diseases.
212

GPW art. 23 (“With the exception of those engaged in the protection of their quarters against the aforesaid
hazards, they may enter such shelters as soon as possible after the giving of the alarm.”).
213

GPW art. 23 (“Any other protective measure taken in favour of the population shall also apply to them.”).

214

GPW art. 25 (“All precautions must be taken against the danger of fire.”).

215

GPW art. 22 (“Prisoners of war may be interned only in premises located on land and affording every guaranteeof hygiene and healthfulness.”).
216

GPW art. 22 (“Prisoners of war interned in unhealthy areas, or where the climate is injurious for them, shall be
removed as soon as possible to a more favourable climate.”).
217

GPW art. 29 (“The Detaining Power shall be bound to take all sanitary measures necessary to ensure thecleanliness and healthfulness of camps and to prevent epidemics.”).
218

GPW COMMENTARY 206 (“Among the special measures which the Detaining Power must take in regard to
prisoners of war, we would mention first very strict examination upon entry into the camp, thorough disinfection andinoculation with all necessary vaccines.”).

219

GPW COMMENTARY 207 (“Prisoners suffering from contagious diseases must be placed in quarantine. Carefulattention must also be paid to quarters, and all necessary measures taken to keep them free of vermin.”). Refer to§ 9.14.1.1 (Camp Infirmary).

220

Refer to § 9.19.2.3 (Labor Assignments That May Be Compelled).

221

GPW COMMENTARY 208 (“Baths and showers may be made compulsory for prisoners of war, provided no risk totheir health is involved. This interpretation is not based on the present provision [paragraph 3 of GPW art. 29], but
on paragraph 1 of this Article, which requires the Detaining Power to take all necessary sanitary measures. If baths
and showers are considered necessary to ensure healthfulness in the camps and to prevent epidemics, they must be
compulsory.”).

563

9.11.5.2 Sanitary Conveniences (e.g., latrines, bathrooms). POWs shall have for
their use, day and night, conveniences that conform to the rules of hygiene and are maintained ina constant state of cleanliness. 222 The term “sanitary conveniences” should be taken to mean
primarily the latrines. Access to the latrines at night is specified in the 1949 Geneva
Conventions because lack of access was a frequent problem in POW camps in World War II. 223
In any camps in which women POWs are accommodated, separate conveniences shall be
provided for them. 224
9.11.5.3 Showers, Baths, Personal Toilet, and Laundry. Also, apart from thebaths and showers with which the camps shall be furnished, POWs shall be provided with
sufficient water and soap for their personal toilet and for washing their personal laundry; thenecessary installations, facilities, and time shall be granted them for that purpose. 225 For
example, the POW camp may have camp laundry facilities that the POWs may use to wash theirclothes, or the POWs may have access to a laundry service outside the camp. 226
Although the frequency with which baths or showers may be taken is not specified, areasonable opportunity (e.g., considering the available resources, the POWs’ cultural practices,
the activities in which they are engaged) should be afforded. 227
9.11.6 Conditions of Living Quarters. POWs shall be quartered under conditions asfavorable as those for the forces of the Detaining Power who are billeted in the same area. 228
These conditions shall make allowance for the habits and customs of the POWs and shall in no222

GPW art. 29 (“Prisoners of war shall have for their use, day and night, conveniences which conform to the rulesof hygiene and are maintained in a constant state of cleanliness.”).
223

See GPW COMMENTARY 207 (“During the Second World War, prisoners of war sometimes had no access to theconveniences during the night. The new Convention makes an express stipulation in this respect.”); I REPORT OF
THE INTERNATIONAL COMMITTEE OF THE RED CROSS ON ITS ACTIVITIES DURING THE SECOND WORLD WAR(SEPTEMBER 1, 1939 – JUNE 30, 1947) 263 (1948) (“Delegates of the ICRC frequently drew the attention of campcommandants to the fact that sanitary conveniences were insufficient in number and often inaccessible to PW atnight.”).
224

GPW art. 29 (“In any camps in which women prisoners of war are accommodated, separate conveniences shall be
provided for them.”).

225

GPW art. 29 (“Also, apart from the baths and showers with which the camps shall be furnished, prisoners of war
shall be provided with sufficient water and soap for their personal toilet and for washing their personal laundry; thenecessary installations, facilities and time shall be granted them for that purpose.”).
226

See GPW COMMENTARY 208 (“The time allowed must also be sufficient for the washing of personal laundry. In
camps where other ranks are interned, this task is usually performed by the prisoners themselves; in camps forofficers, it is usually done outside the camp against payment.”).
227

See also GPW COMMENTARY 208 (“In the first place, this paragraph [of article 29 of the GPW] provides that thecamps must be furnished with baths and showers. Taking into account the difficulties which the Detaining Powermay have in providing hot baths and showers for a large number of prisoners, one bath or shower per week for eachprisoner may be considered reasonable.”).
228

GPW art. 25 (“Prisoners of war shall be quartered under conditions as favourable as those for the forces of the
Detaining Power who are billeted in the same area.”).

564

case be prejudicial to their health. 229 In particular, the dormitories of POWs as regards both total
surface and minimum cubic space, and the general installations, bedding, and blankets for
POWs, should be as favorable as those of the forces of the Detaining Power in that area andshould allow for their habits and customs. 230
The premises provided for the use of POWs individually or collectively shall be entirely
protected from dampness and adequately heated and lighted, in particular between dusk andlights out. 231
9.11.6.1 Separate Dormitories for Women. In any camps in which women POWs,
as well as men, are accommodated, separate dormitories shall be provided for women POWs. 232
Although the GPW refers only to separate dormitories and the quarters as a whole need
not necessarily be separated, the Detaining Power may provide separate quarters or even camps
for men and women POWs, as appropriate. 233
9.12 SEGREGATION OF POWS
Although the Detaining Power must treat POWs without any adverse distinction based
upon race, nationality, religion, or political belief, or any other distinction based upon similar
criteria, 234 the Detaining Power shall assemble POWs in camps or camp compounds according totheir nationality, language, and customs, and may use other similar criteria to segregate detainees
in order to maintain order in the camps or to impose punishment, or for medical reasons.
9.12.1 Assembling According to Nationality, Language, and Customs. The Detaining
Power shall assemble POWs in camps or camp compounds according to their nationality,
language, and customs, provided that such POWs shall not be separated from POWs belonging
to the armed forces with which they were serving at the time of their capture, except with theirconsent. 235 For example, unless they otherwise consent, POWs who are serving in the armed
forces of a State of which they are not nationals should be quartered with POWs from that State
229

GPW art. 25 (“The said conditions shall make allowance for the habits and customs of the prisoners and shall inno case be prejudicial to their health.”).
230

GPW art. 25 (“The foregoing provisions shall apply in particular to the dormitories of prisoners of war as regards
both total surface and minimum cubic space, and the general installations, bedding and blankets.”).
231

GPW art. 25 (“The premises provided for the use of prisoners of war individually or collectively, shall be entirely
protected from dampness and adequately heated and lighted, in particular between dusk and lights out.”).
232

GPW art. 25 (“In any camps in which women prisoners of war, as well as men, are accommodated, separate
dormitories shall be provided for them.”).
233

GPW COMMENTARY 195 (“Strictly speaking, this paragraph refers only to dormitories and the quarters as awhole need not necessarily be separated; the Detaining Power is, however, at liberty to provide separate quarters if it
deems fit and in order more easily to fulfil the other requirements of the Convention with regard to women
prisoners.”).

234

Refer to § 9.5.5 (No Adverse Distinction Based on Race, Nationality, Religion, or Political Belief).

235
GPW art. 22 (“The Detaining Power shall assemble prisoners of war in camps or camp compounds according totheir nationality, language and customs, provided that such prisoners shall not be separated from prisoners of war
belonging to the armed forces with which they were serving at the time of their capture, except with their consent.”).

565

as opposed to with POWs of their nationality.
The assembling of POWs on the basis of nationality, language, and customs is intended
to ameliorate the possibility of cultural conflicts within POW camps, such as those that occurred
during World War I. 236
9.12.1.1 Other Permissible Criteria for Segregating POWs. In addition tonationality, language, and customs, the Detaining Power may segregate POWs along the basis ofother criteria to advance legitimate interests, such as maintaining order in camps or imposing
punishment, or for medical reasons. 237 For example, it may be appropriate to segregate POWs
on the basis of political opinion. 238 POWs who are deserters or who fear attacks by other POWs
may also be segregated. 239 In addition, it may be appropriate to segregate POWs based onwhether they are connected with potential war crimes proceedings. 240 POWs may be segregatedaccording to their known or suspected security risk level. A combination of classifications may
be used to ensure an orderly and secure POW camp. 241

236

GPW COMMENTARY 183 (“The First World War was the first occasion on which soldiers of every race andnationality fought on the same battlefields, and the very varied composition of armed forces sometimes raiseddifficult problems for the Detaining Powers. It was difficult to expect men to live side by side solely because they
had belonged to the same armed forces when not only their culture and civilization were very different, but also they
had customs and habits which differed very much, for instance in matters of hygiene.”).
237

1956 FM 27-10 (Change No. 1 1976) ¶92b (“The foregoing provision [GPW art. 16] does not preclude thesegregation of prisoners of war to maintain order in camps, to impose punishment, or for medical reasons.”).
238

For example, LEVIE, POWS 178 (“The incidents which occurred in the prisoner-of-war camps there [during the
Korean War] demonstrated that where ideology is concerned, and where there is a major schism within the prisonerof-war group itself, segregation by political opinion may be an absolute requirement in order to ensure the safety ofmany of the prisoners of war. Once again, it is necessary to state that there is no valid objection to this procedure aslong as there is, nevertheless, compliance with the provisions of the third paragraph of Article 22 and as long as
there is no discrimination in the treatment received by the individuals confined in different camps or compounds.”).
239

For example, Gordon Risius, Prisoners of War in the United Kingdom, in PETER ROWE, THE GULF WAR 1990-91
IN INTERNATIONAL AND ENGLISH LAW 289, 298 (1993) (“Four [Iraqi] prisoners [of war held in the United Kingdom]

were accommodated separately at their own request. They considered themselves to be deserters, and wereconcerned that they might be attacked by the other prisoners if they were not segregated.”).
240

For example, DEPARTMENT OF THE ARMY PAMPHLET 20-213, History of Prisoner Of War Utilization By The
United States Army, 1776-1945, 253 (Jun. 24, 1955) (“All Japanese PW’s were divided into two classes after
screening—processed and categorized. A processed prisoner of war was one who had been questioned and found
not to be connected with any war crime. His name was recorded, a serial number assigned, and he was sent to abranch PW labor camp pending repatriation. A categorized prisoner of war was one held as a war criminal or as amaterial witness to atrocities committed by members of the Japanese forces. These were segregated from the otherprisoners, but were eligible for use as laborers under adequate security.”).
241

For example, Martin Tollefson, Enemy Prisoners of War, 32 IOWA LAW REVIEW 51, 59 (1946) (“The mosteffective means, however, of stopping the crime wave [of murder and forced suicides in U.S.-run POW camps in
World War II] and other troubles, among prisoners of war, was the adoption of a well-planned program ofsegregation. Prisoners were carefully screened and re-screened, classified, segregated, and transferred to camps
accordingly. At the one extreme were found the rabid Nazis, and at the other the confirmed anti-Nazis, with thegreat mass of German prisoners falling in a middle category. In addition, there were many finer classifications andsegregations. The trouble makers, the Gestapo agents, and the SS and SA men, for instance, had to be segregatedfrom those who were willing to cooperate irrespective of their political views. Those who were inclined to be566

9.13 FOOD, WATER, TOBACCO, AND CLOTHING FOR POWS
9.13.1 Food for POWs. The basic daily food rations shall be sufficient in quantity,
quality, and variety to keep POWs in good health and to prevent loss of weight or thedevelopment of nutritional deficiencies. 242
9.13.1.1 Accounting for the Habitual Diet. Account shall also be taken of thehabitual diet of the POWs. 243 For example, the POWs’ cultural and religious requirements
should be considered in determining and ensuring the appropriate diet. 244 The preparation of thefood by the POWs themselves also helps conform the food to the POWs’ habitual diet. 245
9.13.1.2 Additional Food for Certain Groups. The Detaining Power shall supply
POWs who work with such additional rations as are necessary for the labor on which they are
employed. 246
9.13.1.3 No Collective Disciplinary Measures Affecting Food. Collective
disciplinary measures affecting food are prohibited. 247 The use of food as an inducement torecalcitrant POWs to restore order in a POW camp is permissible. 248
9.13.1.4 Messing and Means for Preparing Additional Food. Adequate premises
shall be provided for messing. 249 Supervision of messes by the POWs themselves shall be
particularly cooperative had to be given protection. Approximately one dozen different classes of camps weremaintained to make the segregation effective.”).
242

GPW art. 26 (“The basic daily food rations shall be sufficient in quantity, quality and variety to keep prisoners of
war in good health and to prevent loss of weight or the development of nutritial deficiencies.”).
243

GPW art. 26 (“Account shall also be taken of the habitual diet of the prisoners.”).

244

For example, FINAL REPORT ON THE PERSIAN GULF WAR 585 (“Rations for EPW were nourishing. The usual
menu consisted of: Four slices of bread w/jam, cheese, 1/4 liter milk or juice for breakfast; 1 US meal ready to eat,
North Atlantic Treaty Organization, or Saudi rations for lunch; and, beans, tomatoes, rice, meat (lamb or chicken),and tea for supper. Items prohibited by local and regional religious beliefs were not served to EPWs. US personnel
removed these items from ration packets and replaced them with acceptable substitutes.”).
245

GPW COMMENTARY 198 (“The present provision, which is additional to the requirements in the first sentence,
should ensure that prisoners are provided with food corresponding to their needs, their taste and their habits.
Paragraph 4 of this same Article [Article 26 of the GPW], which provides that prisoners of war may be associatedwith the preparation of their meals, will facilitate the application of this clause.”).

246

GPW art. 26 (“The Detaining Power shall supply prisoners of war who work with such additional rations as arenecessary for the labour on which they are employed.”).

247

GPW art. 26 (“Collective disciplinary measures affecting food are prohibited.”).

248

LEVIE, POWS 130 footnote 115 (“During the rioting at Koje-do in Korea in 1952 (see note V-8 infra), in order tomove recalcitrant Communist prisoners of war to smaller, more manageable, prisoner-of-war compounds wherecontrol by the Detaining Power could be reestablished, the military authorities of the United Nations Command
made food available in the new, small compounds and refused to make it available in the old, large compounds. If
the prisoner of war wanted to eat, he had to move to the new compound. The ICRC Delegate took the position that
this was collective punishment involving food. The United Nations Command took the position that as food wasavailable in the new compounds, to which the prisoners of war were free to move, there was no denial of food tothem.”).
249

GPW art. 26 (“Adequate premises shall be provided for messing.”).

567

facilitated in every way. 250
POWs shall, as far as possible, be associated with the preparation of their meals; they
may be employed for that purpose in the kitchens. 251 Furthermore, they shall be given the meansof preparing, themselves, the additional food in their possession. 252 For example, the POWs
should have access to facilities to prepare food purchased at the canteen or received in relief
packages.
9.13.2 Drinking Water. Sufficient drinking water shall be supplied to POWs. 253
9.13.3 Use of Tobacco. The use of tobacco shall be permitted. 254 The Detaining Poweris not required to give tobacco to POWs, but should offer it for sale at the canteen. 255 The
Detaining Power may impose reasonable restrictions on smoking to ensure that the camp is ahealthful and safe environment.
9.13.4 Clothing for POWs. Clothing, underwear, and footwear shall be supplied to
POWs in sufficient quantities by the Detaining Power, which shall make allowance for the
climate of the region where the POWs are detained. 256 The regular replacement and repair ofthese articles shall be assured by the Detaining Power. 257
9.13.4.1 Uniforms for POWs. Uniforms of enemy armed forces captured by the
Detaining Power should, if suitable for the climate, be made available to clothe POWs. 258 The
Power to which the POWs belong may send uniforms to the POWs through the Protecting
Powers or ICRC. 259
250

GPW art. 44 (“Supervision of the mess by the officers themselves shall be facilitated in every way.”); GPW art.
45 (“Supervision of the mess by the prisoners themselves shall be facilitated in every way.”).
251

GPW art. 26 (“Prisoners of war shall, as far as possible, be associated with the preparation of their meals; they
may be employed for that purpose in the kitchens.”).
252

GPW art. 26 (“Furthermore, they shall be given the means of preparing, themselves, the additional food in theirpossession.”).
253

GPW art. 26 (“Sufficient drinking water shall be supplied to prisoners of war.”).

254

GPW art. 26 (“The use of tobacco shall be permitted.”).

255

Refer to § 9.17 (Canteens for POWs).

256

GPW art. 27 (“Clothing, underwear and footwear shall be supplied to prisoners of war in sufficient quantities by
the Detaining Power, which shall make allowance for the climate of the region where the prisoners are detained.”).
257

GPW art. 27 (“The regular replacement and repair of the above articles shall be assured by the Detaining
Power.”).
258

GPW art. 27 (“Uniforms of enemy armed forces captured by the Detaining Power should, if suitable for the
climate, be made available to clothe prisoners of war.”).
259

For example, I REPORT OF THE INTERNATIONAL COMMITTEE OF THE RED CROSS ON ITS ACTIVITIES DURING THE
SECOND WORLD WAR (SEPTEMBER 1, 1939 – JUNE 30, 1947) 258 (1948) (“As in the case of food, countries whose
economic conditions were considerably impaired by the war could not make adequate provision of the clothing of
the prisoners in their hands. The Powers to which these PW belonged thereupon sent large quantities of uniforms to
the camps through the ICRC. The object was not only to ensure that PW should have enough clothing, but also togive them uniforms of their national forces, which in any case could not be supplied by the detaining Power.”).

568

The GPW does not prohibit providing POWs with uniforms of the armed forces of the
Detaining Power. If this were necessary, it would be appropriate to remove insignia or alter theuniforms, which would reduce the risk that POWs might be mistaken for members of the armed
forces of the Detaining Power. 260
Similarly, uniforms or other clothing for POWs may contain markings denoting theindividuals as POWs because the absence of any such markings may facilitate escape. 261 Any
markings on clothing for POWs must be consistent with the principle of respect for the person
and honor of the POW and, therefore, may not be humiliating or degrading. 262
9.13.4.2 Appropriate Clothing for Work. POWs who work shall receive
appropriate clothing, wherever the nature of the work demands. 263
9.14 MEDICAL ATTENTION FOR INTERNED POWS
In addition to the rules relating to the general rules applicable to the medical care of thewounded and sick, 264 the following rules also apply to the medical care of POWs who have beeninterned in POW camps.
The GPW and the GWS contemplate that POWs will benefit from the services of retained
medical personnel or POWs who are trained as medical personnel but not attached to the medical
service. 265 However, the provision in the GPW and the GWS for such personnel does not relieve
the Detaining Power of its obligations to provide for the medical care of POWs. 266
9.14.1 Access to Medical Attention.
9.14.1.1 Camp Infirmary. Every camp shall have an adequate infirmary where
POWs may have the attention they require, as well as an appropriate diet. 267 Isolation wards
shall, if necessary, be set aside for cases of contagious or mental disease. 268

260

Cf. GPW COMMENTARY 201 (“Prisoners may in no case be obliged to wear the uniform of the Detaining Power ifthey consider that their honour does not so permit (Article 14, paragraph 1). The Detaining Power must therefore, asa minimum, alter those uniforms, in particular by removing all badges of nationality.”).

261

GPW COMMENTARY 201 (“Detaining Powers have never been willing to allow prisoners of war to wear civilian
clothing, in order not to make escape easier.”).

262

Refer to § 9.5.3 (Protection Against Insults and Public Curiosity). Compare § 10.13.4.1 (No Humiliating
Clothing).
263

GPW art. 27 (“In addition, prisoners of war who work shall receive appropriate clothing, wherever the nature of
the work demands.”).
264

Refer to § 7.5.2 (Medical Care of the Wounded and Sick).

265

Refer to § 7.9 (Captured Medical and Religious Personnel).

266

Refer to § 7.9.6 (No Relief of Obligations of the Detaining Power).

267

GPW art. 30 (“Every camp shall have an adequate infirmary where prisoners of war may have the attention theyrequire, as well as appropriate diet.”).
268

GPW art. 30 (“Isolation wards shall, if necessary, be set aside for cases of contagious or mental disease.”).

569

9.14.1.2 Right of POWs to Present Themselves for Examination. POWs may not
be prevented from presenting themselves to the medical authorities for examination. 269
The GPW contemplates that POWs would have daily sick call in which they could
present themselves for medical examination, even when undergoing disciplinary punishment. 270
The right of POWs to present themselves for examination does not mean that POWs mustnecessarily be examined every day by a doctor, nor does it preclude disciplinary punishment if
POWs abusively make groundless requests for medical examination. 271
9.14.1.3 Monthly Medical Inspections. Medical inspections of POWs shall beheld at least once a month. 272 They shall include the checking and the recording of the weight ofeach POW. 273 Their purpose shall be, in particular, to supervise the general state of health,nutrition, and cleanliness of POWs, and to detect contagious diseases, especially tuberculosis,
malaria, and venereal disease. 274 For this purpose, the most efficient methods available shall be
employed. 275 The GPW gives as an example periodic mass miniature radiography for early
detection of tuberculosis, but medical experts should be consulted for the best practices.
9.14.2 Medical Treatment for Interned POWs.
9.14.2.1 Persons Requiring Special Treatment. POWs suffering from serious
disease, or whose condition necessitates special treatment, a surgical operation, or hospital care,must be admitted to any military or civilian medical unit where such treatment can be given,
even if their repatriation is contemplated in the near future. 276 Special facilities shall be afforded
for the care to be given to the disabled, in particular to the blind, and for their rehabilitation,
pending repatriation. 277
9.14.2.2 Treatment by Medical Personnel of the Power on Which They Depend.
POWs shall have the attention, preferably, of medical personnel of the Power on which they269

GPW art. 30 (“Prisoners of war may not be prevented from presenting themselves to the medical authorities for
examination.”).
270

Refer to § 9.27.6.4 (Attendance at Daily Medical Inspection and Medical Attention).

271

Compare § 10.14.1.2 (Right of Internees to Present Themselves for Examination).

272

GPW art. 31 (“Medical inspections of prisoners of war shall be held at least once a month.”).

273

GPW art. 31 (“They shall include the checking and the recording of the weight of each prisoner of war.”).

274

GPW art. 31 (“Their purpose shall be, in particular, to supervise the general state of health, nutrition andcleanliness of prisoners and to detect contagious diseases, especially tuberculosis, malaria and venereal disease.”).
275

GPW art. 31 (“For this purpose the most efficient methods available shall be employed, e. g. periodic massminiature radiography for the early detection of tuberculosis.”).
276

GPW art. 30 (“Prisoners of war suffering from serious disease, or whose condition necessitates special treatment,a surgical operation or hospital care, must be admitted to any military or civilian medical unit where such treatment
can be given, even if their repatriation is contemplated in the near future.”).
277

GPW art. 30 (“Special facilities shall be afforded for the care to be given to the disabled, in particular to theblind, and for their rehabilitation, pending repatriation.”).

570

depend and, if possible, of their nationality. 278 The preference for POWs to have the attention of
the medical personnel of the Power on which they depend is also reflected in the provisions of
the GPW and GWS on the duties of retained personnel. 279
These medical personnel may be retained personnel or persons who are trained as
medical personnel but not attached to the medical service in their armed forces. 280
9.14.2.3 Certification Recording Treatment. The detaining authorities shall, uponrequest, issue to every POW who has undergone treatment an official certificate indicating thenature of his or her illness or injury, and the duration and kind of treatment received. 281 A
duplicate of this certificate shall be forwarded to the Central POW Information Agency. 282
9.14.2.4 Cost of Treatment. The costs of treatment, including those of any
apparatus necessary for the maintenance of POWs in good health, particularly dentures and otherartificial appliances, and eyeglasses, shall be borne by the Detaining Power. 283
9.14.3 Receipt of Medical Supplies. POWs may receive individual parcels and collective
shipments containing medical supplies. 284 However, medical supplies generally are to be sent incollective shipments so that they may be properly administered by the camp doctors. 285
9.14.4 Inquiry in Certain Cases of Death or Serious Injury. In certain cases of death orserious injury of a POW, an official inquiry shall be conducted by the Detaining Power. 286
9.15 RELIGIOUS EXERCISE BY POWS
POWs shall enjoy complete latitude in the exercise of their religious duties, including
attendance at the service of their faith, on condition that they comply with the disciplinary

278

GPW art. 30 (“Prisoners of war shall have the attention, preferably, of medical personnel of the Power on which
they depend and, if possible, of their nationality.”).
279

Refer to § 7.9.3 (Duties of Retained Personnel).

280

Refer to § 4.9 (Military Medical and Religious Personnel); § 4.5.2.2 (Members Trained as Medical Personnel, but
Not Attached to the Medical Service).
281

GPW art. 30 (“The detaining authorities shall, upon request, issue to every prisoner who has undergone
treatment, an official certificate indicating the nature of his illness or injury, and the duration and kind of treatment
received.”).
282

GPW art. 30 (“A duplicate of this certificate shall be forwarded to the Central Prisoners of War Agency.”).

283

GPW art. 30 (“The costs of treatment, including those of any apparatus necessary for the maintenance ofprisoners of war in good health, particularly dentures and other artificial appliances, and spectacles, shall be borneby the Detaining Power.”).
284

Refer to § 9.20.3 (Receipt of Individual and Collective Relief Shipments for POWs).

285

Refer to § 9.20.3.2 (Medical Supplies in Relief Shipments).

286

Refer to § 9.34.5 (Inquiries Into Death or Serious Injury of POWs in Certain Cases).

571

routine prescribed by the military authorities. 287
The GPW and the GWS contemplate that POWs will benefit from the services of retained
chaplains or POWs who are ministers of religion without having officiated as chaplains to theirown forces. 288 However, the provision in the GPW and the GWS for such personnel does notrelieve the Detaining Power of its obligations to provide for the exercise of religion by POWs. 289
9.15.1 Premises for Religious Services for POWs. Adequate premises shall be provided
where religious services may be held. 290 The premises where services are held should be
sufficiently spacious and clean, and should provide effective shelter to those attending services,
but need not be set aside exclusively for religious services. 291
9.15.2 Chaplains. Chaplains who fall into the hands of the enemy Power and who remain
or are retained with a view to assisting POWs shall be allowed to minister to them and to
exercise freely their ministry among POWs of the same religion, in accordance with theirreligious conscience. 292 They shall be allocated among the various camps and labor detachments
containing POWs belonging to the same forces, speaking the same language, or practicing thesame religion. 293
9.15.3 Appointment of Other Ordained Ministers or Qualified Laypersons. When POWs
do not have the assistance of a retained chaplain or of a POW minister of their faith, a ministerbelonging to the POWs’ or a similar denomination, or in his or her absence a qualified layperson,
if such a course is feasible from a confessional point of view, shall be appointed, at the request of
the POWs concerned, to fill this office. 294 This appointment, subject to the approval of the
Detaining Power, shall take place with the agreement of the community of POWs concerned and,287

GPW art. 34 (“Prisoners of war shall enjoy complete latitude in the exercise of their religious duties, including
attendance at the service of their faith, on condition that they comply with the disciplinary routine prescribed by the
military authorities.”).
288

Refer to § 7.9 (Captured Medical and Religious Personnel).

289

Refer to § 7.9.6 (No Relief of Obligations of the Detaining Power).

290

GPW art. 34 (“Adequate premises shall be provided where religious services may be held.”).

291

GC COMMENTARY 388 (“It does not seem essential that these premises should be set aside exclusively for
religious services. The parallel text in the Prisoners of War Convention (Article 34, paragraph 2) speaks of‘adequate’ premises. In both cases, it should be understood that the premises where services are held should be
sufficiently spacious and clean and so built as to give effective shelter to those attending the services.”).

292

GPW art. 35 (“Chaplains who fall into the hands of the enemy Power and who remain or are retained with a view
to assisting prisoners of war, shall be allowed to minister to them and to exercise freely their ministry amongst
prisoners of war of the same religion, in accordance with their religious conscience.”).
293

GPW art. 35 (“They shall be allocated among the various camps and labour detachments containing prisoners of
war belonging to the same forces, speaking the same language or practising the same religion.”).
294

GPW art. 37 (“When prisoners of war have not the assistance of a retained chaplain or of a prisoner of war
minister of their faith, a minister belonging to the prisoners’ or a similar denomination, or in his absence a qualified
layman, if such a course is feasible from a confessional point of view, shall be appointed, at the request of theprisoners concerned, to fill this office.”).

572

wherever necessary, with the approval of the local religious authorities of the same faith. 295 The
person thus appointed shall comply with all regulations established by the Detaining Power in
the interests of discipline and military security. 296
9.16 INTELLECTUAL, PHYSICAL, AND RECREATIONAL ACTIVITIES
While respecting the individual preferences of every POW, the Detaining Power shallencourage the practice of intellectual, educational, and recreational pursuits, and sports andgames, among POWs, and shall take the measures necessary to ensure the exercise thereof byproviding them with adequate premises and necessary equipment. 297 Adequate premises andnecessary equipment may include, for example, musical instruments, theatrical accessories,
books, language courses, recreation rooms, or soccer fields. 298
9.16.1 Voluntariness of the Activities. The Detaining Power should seek to encourage
the POWs in engaging in these activities, while respecting their individual preferences. For
example, it would be prohibited to compel POWs to listen to propaganda or to punish them ifthey do not participate. 299
On the other hand, as reflected in U.S. practice, censoring educational or intellectual
materials for security reasons or to refrain from providing POWs with anti-democratic political

295

GPW art. 37 (“This appointment, subject, to the approval of the Detaining Power, shall take place with theagreement of the community of prisoners concerned and, wherever necessary, with the approval of the local
religious authorities of the same faith.”).
296

GPW art. 37 (“The person thus appointed shall comply with all regulations established by the Detaining Power in
the interests of discipline and military security.”).
297

GPW art. 38 (“While respecting the individual preferences of every prisoner, the Detaining Power shallencourage the practice of intellectual, educational, and recreational pursuits, sports and games amongst prisoners,
and shall take the measures necessary to ensure the exercise thereof by providing them with adequate premises andnecessary equipment.”).
298

For example, GPW COMMENTARY 237 (“During the Second World War the problem was often solved to thecomplete satisfaction of the prisoners of war. They were provided with musical instruments, theatrical accessories,
books, language courses, recreation rooms, football fields, etc. The necessary equipment was usually supplied byrelief societies or purchased by the prisoners themselves.”).
299

GPW COMMENTARY 237 (“[W]here propaganda involves inhuman treatment, it is ipso facto contrary to theConventions, since such treatment is expressly prohibited. Where no inhuman treatment is involved, propaganda isnevertheless usually dangerous for prisoners of war and contrary to the Conventions, since it may be inconsistent
with equality of treatment, respect for honour and, in particular, the present provision which affirms the right ofprisoners to use their leisure time according to their own preferences.”). For example, The Secretary of Defense’s
Advisory Committee on Prisoners of War, POW The Fight Continues After The Battle: The Report of the Secretaryof Defense’s Advisory Committee on Prisoners of War 10-11 (Aug. 1955) (“[T]he enemy had established a system
of indoctrination courses. The prisoner might start the hard way—and be punished by restricted rations and otherprivations. If he began to show the ‘proper spirit’—to cooperate with his captors—he was lectured and handed
Communist literature. A docile prisoner who read the literature and listened politely to the lectures, was graduatedto a better class. Finally he might be sent to ‘Peaceful Valley.’ In this lenient camp the food was relatively good.
Prisoners might even have tobacco. And here they were given all sorts of Marxian propaganda. The graduates from
‘Peaceful Valley’ and others who accepted Communist schooling were called ‘Progressives.’ Prisoners who refused
to go along with the program often remained in tougher circumstances. They were considered ‘Reactionaries.’”).

573

propaganda would be permissible. 300 Such censorship would be consistent with the generalauthority of the Detaining Power to censor POW correspondence and shipments with a view
towards deleting or confiscating matter prejudicial to its military security. 301
9.16.2 Education. The GPW does not provide specifically for the Detaining Power togrant facilities for POWs to continue their studies or to take up new subjects as the GC does forinternees. 302 Nonetheless, as the duration of detention increases, the Detaining Power shouldmake an effort to do so as part of its general obligation to encourage intellectual and educational
pursuits among POWs. 303
To advance educational opportunities for POWs, the Detaining Power may seek ways toencourage and assist them in teaching one another. 304
9.16.3 Opportunities for Physical Exercise and for Being Outdoors. POWs shall haveopportunities for taking physical exercise, including sports and games, and for being outdoors. 305
Sufficient open spaces shall be provided for this purpose in all camps. 306
9.16.4 Contributions by Sources Apart From the Detaining Power. Apart from the
Detaining Power, POWs may receive assistance from a variety of sources that allow them toengage in intellectual, physical, and recreational activities.

300

For example, Office of the Provost Marshal General, World War II - A Brief History 443 (1946) (“Libraries andreading rooms were permitted to be maintained by prisoners, subject to censorship of the reading material. This
censorship was exercised largely at the camp level. As time went on, however, increasing staff supervision was
exercised by the Office of The Provost Marshal General, since quantities of reading material were available fromwelfare agencies and other sources, and censorship at the camp level was often impractical. Supervision was
exercised by directives, correspondence with camps, and extensive liaison with welfare agencies and the Office ofCensorship. Publications which related to military matters or which contained anti-democratic political propaganda
were excluded.”).
301

Refer to § 9.20.6 (Censorship and Security Review of POW Correspondence and Shipments).

302

Refer to § 10.16.2 (Education).

303

For example, Office of the Provost Marshal General, World War II - A Brief History 443 (1946) (“The need of
educating prisoners became, progressively, of increasing importance and was reflected in additional coverage in theofficial regulations and directives. Opportunities developed for prisoners to receive further education, subject tocertain limitations which were required because of the prisoners’ status. At the beginning the prisoners themselves
took the initiative, aided by relief societies. Once launched, their efforts were given all necessary aid from the War
Department, whether the courses were at elementary, secondary, or collegiate level.”).
304

DEPARTMENT OF THE ARMY PAMPHLET 20-213, History of Prisoner Of War Utilization By The United States
Army, 1776-1945, 160 (Jun. 24, 1955) (“The War Department encouraged the PW’s to organize formal study
courses and allowed them to select a director of studies from their group to organize and promote educational andrecreational activities. The PW’s also selected qualified teachers and instructors who were given sufficient free time
to carry out their educational work. These were paid the standard rate for their educational duties when the work
excluded them from other paid labor. The expenses of the educational program, including the pay of the director
and teachers, came from the PW fund of the camp served.”).
305

GPW art. 38 (“Prisoners shall have opportunities for taking physical exercise, including sports and games, andfor being out of doors.”).
306

GPW art. 38 (“Sufficient open spaces shall be provided for this purpose in all camps.”).

574

For example, relief organizations, including the ICRC, may contribute to ensuring that
POWs have opportunities for intellectual, physical, and recreational activities. 307 In addition,
POWs may receive shipments that are intended to allow them to engage in these activities. 308
Profits from the canteen may also be used for this purpose. 309
9.17 CANTEENS FOR POWS
Canteens shall be established in all camps, where POWs may procure foodstuffs, soap
and tobacco, and ordinary articles for daily use. 310 The purpose is to improve the morale of
POWs by offering goods that are beyond the minimum necessities. 311
9.17.1 Establishment of Canteens. Canteens should be established within a reasonable
period of time, such as after more basic camp facilities have been established and similar
facilities have been established for U.S. forces in the area. In conflicts of short duration or where
POWs are to be transferred to another party to the conflict for longer-term internment, it may beunnecessary to establish a canteen.
9.17.1.1 “Comfort Pack” Instead of Canteen and Advance of Pay. Before
canteens can be established, the need for a canteen may be mitigated if POWs are provided a free
“comfort pack.” The “comfort pack” was developed during Operation DESERT STORM for U.S.
military personnel during the period before opening of exchanges in which such items wereavailable for purchase. Comfort packs were provided to enemy POWs for similar reasons. 312
9.17.2 Canteen Stock and Prices. Canteens are like a base or post exchange for POWs.
The canteen stock should include foodstuffs, soap, tobacco, and other ordinary articles for dailyuse, but need not include luxury items. Ordinary articles for daily use may include, but are notlimited to, items such as correspondence materials (e.g., stationary, pencils, pens, ink, stamps),
supplies for repairing personal effects (e.g., buttons, thread, shoe laces), personal hygiene
articles, tobacco, water, soft drinks, other non-alcoholic beverages, and reading materials. 313

307

Refer to § 9.33.2 (Access by Relief Societies and Other Organizations).

308

Refer to § 9.20.3 (Receipt of Individual and Collective Relief Shipments for POWs).

309

Refer to § 9.17.3 (Camp Canteen Management and Profits).

310

GPW art. 28 (“Canteens shall be installed in all camps, where prisoners of war may procure foodstuffs, soap andtobacco and ordinary articles in daily use.”).
311

LEVIE, POWS 143 (“The existence of the canteen and the availability for sale of canteen-type articles has anaffirmative effect on morale the extent of which is incalculable.”).
312

For example, W. Hays Parks, Special Assistant for Law of War Matters, Office of the Judge Advocate General of
the Army, Enemy Prisoner of War Health and Comfort Pack (Oct. 28, 1994) (“In the 1991 Gulf War, the U.S. Army
issued Iraqi EPW health and comfort packs provided by the ICRC or from U.S. stocks (that is, sundry packs for U.S.
soldiers), but did not establish canteens within the EPW camps due to the short duration of the conflict and EPWtransfer to Saudi Arabian authorities. Tobacco was provided separately, gratis.”).
313

GPW COMMENTARY 203 (“The term ‘ordinary articles in daily use’ means, in addition to soap and tobacco,
which are specifically mentioned: (a) all necessary supplies for correspondence (paper, pencils, pens, ink, stamps,etc.); (b) all necessary toilet articles (towels, brushes, razors, combs, nail scissors, etc.); (c) all necessary supplies for

575

The canteen need not stock alcoholic beverages. 314
The prices at canteens shall never be in excess of local market prices. 315
9.17.3 Camp Canteen Management and Profits. Canteen profits shall be used for the
benefit of the POWs, and a special fund shall be created for this purpose. 316 The POW
Representative shall have the right to collaborate in the management of the canteen and of thisfund. 317 The wishes expressed by the POWs should be considered to the extent consistent withcamp regulations, and the profits should be used whenever needed to improve the conditions for
POWs. 318
9.17.3.1 Use of Canteen Profits for Working Pay of the POW Representative.
Canteen profits should also be used for working pay of the POW Representative, of his or her
advisers, if any, and of his or her assistants. 319
9.17.3.2 Disposition of Canteen Profits Upon Camp Closure. When a camp is
closed, the credit balance of the special fund shall be handed to an international welfare
foundation, to be employed for the benefit of POWs of the same nationality as those who havecontributed to the fund. 320 In case of a general repatriation, the profits shall be kept by the
Detaining Power, subject to any agreement to the contrary between the Powers concerned. 321
9.18 FINANCIAL RESOURCES OF POWS
9.18.1 Detaining Power Regulations on the Maximum Amount of Money in POW
Possession. Upon the outbreak of hostilities, and pending an arrangement on this matter with therepairing personal effects (buttons, thread, needles, shoe-laces, etc.); (d) miscellaneous articles (pocket torches andbatteries, string, pen-knives, handkerchiefs, etc.).”).
314

GPW COMMENTARY 203 (“The camp authorities may prohibit the sale of alcoholic drinks, but must permit thesale of all other health-giving, refreshing or fortifying beverages, hot or cold, and, if possible, milk.”).

315

GPW art. 28 (“The tariff shall never be in excess of local market prices.”).

316

GPW art. 28 (“The profits made by camp canteens shall be used for the benefit of the prisoners; a special fundshall be created for this purpose.”).
317

GPW art. 28 (“The prisoners’ representative shall have the right to collaborate in the management of the canteen
and of this fund.”).
318

GPW COMMENTARY 204 (“It must be emphasized that, in accordance with the present paragraph, the fund must
be used for the benefit of the prisoners. The wishes expressed by the prisoners must therefore be taken into
consideration, to the extent that they do not run contrary to the regulations ensuring good administration anddiscipline in the camp. The Detaining Power may not utilize canteen profits to make up any shortcomings for which
it is responsible. On the other hand, it is also recommended that canteen profits should not be hoarded, but should
be utilized whenever needed in order to improve the lot of the prisoners.”).

319

Refer to § 9.24.4.5 (Working Pay of POW Representatives, Advisers, and Assistants).

320

GPW art. 28 (“When a camp is closed down, the credit balance of the special fund shall be handed to aninternational welfare organization, to be employed for the benefit of prisoners of war of the same nationality as those
who have contributed to the fund.”).
321

GPW art. 28 (“In case of a general repatriation, such profits shall be kept by the Detaining Power, subject to any
agreement to the contrary between the Powers concerned.”).

576

Protecting Power, the Detaining Power may determine the maximum amount of money in cash
or in any similar form that POWs may have in their possession. 322 Any amount in excess, which
was properly in their possession and which has been taken or withheld from them, shall beplaced to their account, together with any monies deposited by them, and shall not be converted
into any other currency without their consent. 323
9.18.2 Purchases Outside the POW Camp. If POWs are permitted to purchase services orcommodities outside the camp “against payment in cash,” such payments shall be made by the
POW himself or herself or by the camp administration who will charge them to the accounts of
the POWs concerned. 324 The Detaining Power will establish the necessary rules in thisrespect. 325
9.18.3 Advance of Pay. The Detaining Power shall grant all POWs a monthly advance ofpay, the amount of which shall be fixed by conversion into the currency of the Detaining
Power. 326
This money allows POWs to purchase items at the canteen. This money may be paid in
scrip or vouchers that can be used only in the POW camp, to prevent POWs from having or
hoarding currency that might facilitate their escape.
Since the promulgation of the GPW, advances of pay to POWs by the Detaining Power
have been infrequent. 327
9.18.3.1 GPW Specified Amounts for Monthly Advances of Pay. Article 60 of the322

GPW art. 58 (“Upon the outbreak of hostilities, and pending an arrangement on this matter with the Protecting
Power, the Detaining Power may determine the maximum amount of money in cash or in any similar form, that
prisoners may have in their possession.”).
323

GPW art. 58 (“Any amount in excess, which was properly in their possession and which has been taken or
withheld from them, shall be placed to their account, together with any monies deposited by them, and shall not be
converted into any other currency without their consent.”).
324

GPW art. 58 (“If prisoners of war are permitted to purchase services or commodities outside the camp against
payment in cash, such payments shall be made by the prisoner himself or by the camp administration who will
charge them to the accounts of the prisoners concerned.”).
325

GPW art. 58 (“The Detaining Power will establish the necessary rules in this respect.”).

326

GPW art. 60 (“The Detaining Power shall grant all prisoners of war a monthly advance of pay, the amount of
which shall be fixed by conversion, into the currency of the said Power, of the following amounts: …”).
327

For example, W. Hays Parks, Special Assistant for Law of War Matters, Office of the Judge Advocate General of
the Army, Enemy Prisoner of War Health and Comfort Pack (Oct. 28, 1994) (“U.S. and allied or Coalition
personnel held as prisoners of war during the Korean, Vietnam and 1991 Gulf Wars were not provided an advanceof pay by their captors. Although members of the Panamanian Defense Force were not entitled to EPW status, theUnited States Army provided an advance of pay during Operation Just Cause (1989-90); the process proved
cumbersome and unnecessarily complicated, as there was no budget or budget item designated for EPW advance ofpay. The money was not recouped from the Government of Panama. No record could be found of the establishmentof an advance of pay system by any nation in any conflict since promulgation of the 1949 GPW.”).

577

GPW specifies the following amounts for monthly advances of pay: 328•

Category I: POWs ranking below sergeants: eight Swiss francs. 329•

Category II: Sergeants and other non-commissioned officers, or POWs of equivalent
rank: twelve Swiss francs. 330•

Category III: Warrant officers and commissioned officers below the rank of major or
POWs of equivalent rank: fifty Swiss francs. 331•

Category IV: Majors, lieutenant-colonels, colonels, or POWs of equivalent rank: sixty
Swiss francs. 332•

Category V: General officers or POWs of equivalent rank: seventy-five Swiss francs. 333“POWs of equivalent rank” refers to POWs, such as persons authorized to accompany thearmed forces, who are not members of the armed forces and thus do not have a military rank. 334
9.18.3.2 Special Agreement to Modify the Amount of Advances of Pay. The
parties to the conflict concerned may, by special agreement, modify the amount of advances ofpay due to POWs of the categories specified in Article 60 of the GPW. 335
9.18.3.3 Procedure for Limiting Amounts Drawn From Accounts Pending Special
Agreement. If the amounts indicated in Article 60 of the GPW would be unduly high comparedwith the pay of the Detaining Power’s armed forces or would, for any reason, seriously
embarrass the Detaining Power, then, pending the conclusion of a special agreement with thePower on which the POWs depend to vary the amounts indicated above, the Detaining Power: 336

328

GPW art. 60 (“The Detaining Power shall grant all prisoners of war a monthly advance of pay, the amount of
which shall be fixed by conversion, into the currency of the said Power, of the following amounts:”).
329

GPW art. 60 (“Category I: Prisoners ranking below sergeants: eight Swiss francs.”).

330

GPW art. 60 (“Category II: Sergeants and other non-commissioned officers, or prisoners of equivalent rank:
twelve Swiss francs.”).
331

GPW art. 60 (“Category III: Warrant officers and commissioned officers below the rank of major or prisoners ofequivalent rank: fifty Swiss francs.”).
332

GPW art. 60 (“Category IV: Majors, lieutenant-colonels, colonels or prisoners of equivalent rank: sixty Swiss
francs.”).
333

GPW art. 60 (“Category V: General officers or prisoners of war of equivalent rank: seventy-five Swiss francs.”).

334

Refer to § 9.22.4.1 (Communication of Titles and Ranks).

335

GC art. 60 (“However, the Parties to the conflict concerned may by special agreement modify the amount ofadvances of pay due to prisoners of the preceding categories.”).
336

GPW art. 60 (“Furthermore, if the amounts indicated in the first paragraph above would be unduly highcompared with the pay of the Detaining Power’s armed forces or would, for any reason, seriously embarrass the
Detaining Power, then, pending the conclusion of a special agreement with the Power on which the prisoners depend
to vary the amounts indicated above, the Detaining Power:”).

578

•

shall continue to credit the accounts of the POWs with the amounts indicated in the firstparagraph of Article 60 of the GPW; 337•

may temporarily limit the amount made available from these advances of pay to POWs
for their own use, to sums that are reasonable, but that, for Category I, shall never beinferior to the amount that the Detaining Power gives to the members of its own armed
forces. 338
The reasons for any limitations will be given without delay to the Protecting Power. 339

9.18.3.4 Reimbursement by the Power on Which the POWs Depend. Advances ofpay, issued to POWs in conformity with Article 60 of the GPW, shall be considered as made on
behalf of the Power on which they depend. 340
Such advances of pay, as well as all payments made by the Power on which the POWs
depend under the third paragraph of Article 63 of the GPW (payments made by the POW in theirown country341) and Article 68 of the GPW (claims by POWs for compensation for personal
loss 342), shall form the subject of arrangements between the Powers concerned, at the close of
hostilities. 343
9.18.4 Supplementary Pay From the Power on Which the POWs Depend. The Detaining
Power shall accept for distribution as supplementary pay to POWs sums that the Power on which
the POWs depend may forward to them, on condition that the sums to be paid shall be the samefor each POW of the same category, shall be payable to all POWs of that category depending onthat Power, and shall be placed in their separate accounts, at the earliest opportunity, in
accordance with the provisions of Article 64 of the GPW. 344 Such supplementary pay shall not

337

GPW art. 60 (“(a) shall continue to credit the accounts of the prisoners with the amounts indicated in the firstparagraph above;”).
338

GPW art. 60 (“(b) may temporarily limit the amount made available from these advances of pay to prisoners of
war for their own use, to sums which are reasonable, but which, for Category I, shall never be inferior to the amountthat the Detaining Power gives to the members of its own armed forces.”).
339

GPW art. 60 (“The reasons for any limitations will be given without delay to the Protecting Power.”).

340

GPW art. 67 (“Advances of pay, issued to prisoners of war in conformity with Article 60, shall be considered as
made on behalf of the Power on which they depend.”).
341

Refer to § 9.18.5.1 (Payments Made in the POW’s Own Country).

342

Refer to § 9.19.6.1 (Claims for Compensation From Injury or Other Disability Arising Out of Work); § 9.18.7(Claims by POWs in Respect of Personal Loss).
343

GPW art. 67 (“Such advances of pay, as well as all payments made by the said Power under Article 63, thirdparagraph, and Article 68, shall form the subject of arrangements between the Powers concerned, at the close of
hostilities.”).
344

GPW art. 61 (“The Detaining Power shall accept for distribution as supplementary pay to prisoners of war sums
which the Power on which the prisoners depend may forward to them, on condition that the sums to be paid shall be
the same for each prisoner of the same category, shall be payable to all prisoners of that category depending on thatPower, and shall be placed in their separate accounts, at the earliest opportunity, in accordance with the provisionsof Article 64.”).

579

relieve the Detaining Power of any obligation under the GPW. 345
9.18.5 Remittances and Other Money Transfers. POWs shall be permitted to receive
remittances of money addressed to them individually or collectively. 346
Every POW shall have at his or her disposal the credit balance of his or her account asprovided for in the Article 64 of the GPW, within the limits fixed by the Detaining Power, whichshall make such payments as are requested. 347 Subject to financial or monetary restrictions thatthe Detaining Power regards as essential, POWs may also have payments made abroad. 348 In
this case, payments addressed by POWs to dependents shall be given priority. 349
9.18.5.1 Payments Made in the POW’s Own Country. In any event, and subject tothe consent of the Power on which they depend, POWs may have payments made in their own
country, as follows:•

The Detaining Power shall send to the Power on which the POWs depend, through theProtecting Power, a notification giving all the necessary particulars concerning thePOWs, the beneficiaries of the payments, and the amount of the sums to be paid,
expressed in the Detaining Power’s currency. 350•

This notification shall be signed by the POWs and countersigned by the campcommander. 351•

The Detaining Power shall debit the POWs’ accounts by a corresponding amount; thesums thus debited shall be placed by it to the credit of the Power on which the POWs
depend. 352

345

GPW art. 61 (“Such supplementary pay shall not relieve the Detaining Power of any obligation under thisConvention.”).
346

GPW art. 63 (“Prisoners of war shall be permitted to receive remittances of money addressed to them
individually or collectively.”).
347
GPW art. 63 (“Every prisoner of war shall have at his disposal the credit balance of his account as provided for in
the following Article, within the limits fixed by the Detaining Power, which shall make such payments as arerequested.”).
348

GPW art. 63 (“Subject to financial or monetary restrictions which the Detaining Power regards as essential,
prisoners of war may also have payments made abroad.”).
349

GPW art. 63 (“In this case payments addressed by prisoners of war to dependents shall be given priority.”).

350

GPW art. 63 (“In any event, and subject to the consent of the Power on which they depend, prisoners may havepayments made in their own country, as follows: the Detaining Power shall send to the aforesaid Power through theProtecting Power, a notification giving all the necessary particulars concerning the prisoners of war, thebeneficiaries of the payments, and the amount of the sums to be paid, expressed in the Detaining Power’s
currency.”).
351

GPW art. 63 (“The said notification shall be signed by the prisoners and countersigned by the campcommander.”).
352

GPW art. 63 (“The Detaining Power shall debit the prisoners' account by a corresponding amount; the sums thus
debited shall be placed by it to the credit of the Power on which the prisoners depend.”).

580

To apply the foregoing provisions, the Detaining Power may usefully consult the Model
Regulations in Annex V of the GPW. 353
9.18.6 POW Accounts. The Detaining Power shall hold an account for each POW,
showing at least the following: 354•

the amounts due to the POW or received by him or her as advances of pay, as working
pay or derived from any other source;•

the sums in the currency of the Detaining Power that were taken from him or her;•the sums taken from the POW and converted at his or her request into the currency of thatPower;•

the payments made to the POW in cash, or in any other similar form;•

the payments made on his or her behalf and request; and•the sums transferred for payments made in a POW’s own country under the thirdparagraph of Article 63 of the GPW. 355

Every item entered in the account of a POW shall be countersigned or initialed by the
POW, or by the POW Representative acting on his or her behalf. 356
POWs shall at all times be afforded reasonable facilities for consulting and obtaining
copies of their accounts, which may likewise be inspected by the representatives of theProtecting Powers at the time of visits to the camp. 357
9.18.6.1 Cash in POW Hands Taken at the Time of Capture. Cash that was takenfrom POWs, in accordance with Article 18 of the GPW, at the time of their capture, and that is in
the currency of the Detaining Power, shall be placed to their separate accounts, in accordance

353

GPW art. 63 (“To apply the foregoing provisions, the Detaining Power may usefully consult the Model
Regulations in Annex V of the present Convention.”).
354

GPW art. 64 (“The Detaining Power shall hold an account for each prisoner of war, showing at least thefollowing: (1) The amounts due to the prisoner or received by him as advances of pay, as working pay or derived
from any other source; the sums in the currency of the Detaining Power which were taken from him; the sums takenfrom him and converted at his request into the currency of the said Power. (2) The payments made to the prisoner incash, or in any other similar form; the payments made on his behalf and at his request; the sums transferred under
Article 63, third paragraph.”).
355

Refer to § 9.18.5.1 (Payments Made in the POW’s Own Country).

356

GPW art. 65 (“Every item entered in the account of a prisoner of war shall be countersigned or initialled by him,or by the prisoners’ representative acting on his behalf.”).
357
GPW art. 65 (“Prisoners of war shall at all times be afforded reasonable facilities for consulting and obtaining
copies of their accounts, which may likewise be inspected by the representatives of the Protecting Powers at the timeof visits to the camp.”).

581

with the Article 64 of the GPW. 358
The amounts, in the currency of the Detaining Power, due to the conversion of sums inother currencies that are taken from the POWs at the same time, shall also be credited to theirseparate accounts. 359
9.18.6.2 Personal Account in the Event of Transfers to Another POW Camp.
When POWs are transferred from one camp to another, their personal accounts will follow
them. 360 In case of transfer from one Detaining Power to another, the monies that are theirproperty and are not in the currency of the Detaining Power will follow them. 361 POWs shall begiven certificates for any other monies standing to the credit of their accounts. 362
9.18.6.3 Periodic Notification of the Amount of the Accounts of POWs. The
parties to the conflict concerned may agree to notify to each other at specific intervals, throughthe Protecting Power, the amount of the accounts of the POWs. 363
9.18.6.4 Statements of Credit Balance on Termination of Captivity. On thetermination of captivity, through the release of a POW or the POW’s repatriation, the Detaining
Power shall give him or her a statement, signed by an authorized officer of that Power, showing
the credit balance then due to the POW. 364
The Detaining Power shall also send through the Protecting Power to the government
upon which the POWs depend lists giving all appropriate particulars of all POWs whose
captivity has been terminated by repatriation, release, escape, death, or any other means, andshowing the amount of their credit balances. 365 Such lists shall be certified on each sheet by an
358

GPW art. 59 (“Cash which was taken from prisoners of war, in accordance with Article 18, at the time of theircapture, and which is in the currency of the Detaining Power, shall be placed to their separate accounts, inaccordance with the provisions of Article 64 of the present Section.”). Refer to § 9.7.4.1 (Unexplained Possession of
Large Sums of Money by POWs); § 9.18.1 (Detaining Power Regulations on the Maximum Amount of Money in
POW Possession).
359

GPW art. 59 (“The amounts, in the currency of the Detaining Power, due to the conversion of sums in othercurrencies that are taken from the prisoners of war at the same time, shall also be credited to their separate
accounts.”).
360

GPW art. 65 (“When prisoners of war are transferred from one camp to another, their personal accounts will
follow them.”).
361

GPW art. 65 (“In case of transfer from one Detaining Power to another, the monies which are their property andare not in the currency of the Detaining Power will follow them.”).
362

GPW art. 65 (“They shall be given certificates for any other monies standing to the credit of their accounts.”).

363

GPW art. 65 (“The Parties to the conflict concerned may agree to notify to each other at specific intervals
through the Protecting Power, the amount of the accounts of the prisoners of war.”).
364

GPW art. 66 (“On the termination of captivity, through the release of a prisoner of war or his repatriation, theDetaining Power shall give him a statement, signed by an authorized officer of that Power, showing the credit
balance then due to him.”).
365

GPW art. 66 (“The Detaining Power shall also send through the Protecting Power to the government upon which
the prisoner of war depends, lists giving all appropriate particulars of all prisoners of war whose captivity has been
terminated by repatriation, release, escape, death or any other means, and showing the amount of their credit
balances.”).

582

authorized representative of the Detaining Power. 366
These rules may be varied by mutual agreement between any two parties to theconflict. 367
9.18.6.5 Responsibility for Credit Balance Due From the Detaining Power on the
Termination of Captivity. The Power on which the POWs depend shall be responsible forsettling with each POW any credit balance due to him or her from the Detaining Power on thetermination of the POW’s captivity. 368
9.18.7 Claims by POWs in Respect of Personal Loss. Any claim by a POW forcompensation in respect of personal effects, monies, or valuables impounded by the Detaining
Power under Article 18 of the GPW and not forthcoming on his or her repatriation, or in respectof loss alleged to be due to the fault of the Detaining Power or any of its servants, shall likewise
be referred to the Power on which the POW depends. 369 Nevertheless, any such personal effects
required for use by the POW while in captivity shall be replaced at the expense of the Detaining
Power. 370
The Detaining Power will, in all cases, provide the POW with a statement, signed by a
responsible officer, showing all available information regarding the reasons why such effects,monies, or valuables have not been restored to him or her. 371 A copy of this statement will be
forwarded to the Power on which he or she depends through the Central POW Information
Agency provided for in Article 123 of the GPW. 372
9.19 POW LABORThe Detaining Power may use the labor of POWs who are physically fit, taking into
account their age, sex, rank, and physical aptitude, and with a view particularly to maintaining

366

GPW art. 66 (“Such lists shall be certified on each sheet by an authorized representative of the Detaining
Power.”).
367
GPW art. 66 (“Any of the above provisions of this Article may be varied by mutual agreement between any two
Parties to the conflict.”).
368

GPW art. 66 (“The Power on which the prisoner of war depends shall be responsible for settling with him any
credit balance due to him from the Detaining Power on the termination of his captivity.”).
369

GPW art. 68 (“Any claim by a prisoner of war for compensation in respect of personal effects, monies orvaluables impounded by the Detaining Power under Article 18 and not forthcoming on his repatriation, or in respectof loss alleged to be due to the fault of the Detaining Power or any of its servants, shall likewise be referred to thePower on which he depends.”).
370

GPW art. 68 (“Nevertheless, any such personal effects required for use by the prisoners of war whilst in captivity
shall be replaced at the expense of the Detaining Power.”).
371

GPW art. 68 (“The Detaining Power will, in all cases, provide the prisoner of war with a statement, signed by a
responsible officer, showing all available information regarding the reasons why such effects, monies or valuables
have not been restored to him.”).
372

GPW art. 68 (“A copy of this statement will be forwarded to the Power on which he depends through the Central
Prisoners of War Agency provided for in Article 123.”).

583

them in a good state of physical and mental health. 373
9.19.1 Determining the Appropriate Labor Assignment. In determining whether labor
should be compelled, as well as the appropriate labor assignment for a POW, the POW’s age,gender, rank, and physical aptitude should be considered. 374
9.19.1.1 Labor Assignment – Non-Commissioned Officers. Noncommissioned
officers shall only be required to do supervisory work. 375 Noncommissioned officers who are
not required to do supervisory work may ask for other suitable work, which shall, so far as
possible, be found for them. 376
9.19.1.2 Labor Assignment – Officers and Persons of Equivalent Status. If
officers or persons of equivalent status ask for suitable work, it shall be found for them, so far as
possible, but they may in no circumstances be compelled to work. 377
9.19.1.3 Labor Assignment – POWs Who May Not Be Compelled to Do Other
Work. Retained personnel and persons treated like retained personnel (e.g., POWs trained as
medical personnel who are directed to provide medical care for fellow POWs), however, may not
be compelled to carry out any work other than that concerned with their medical or religious
duties. 378
POW Representatives and their assistants also shall not be required to perform any otherwork, if the accomplishment of their duties is thereby made more difficult. 379
9.19.2 Types of Labor Assignments.
9.19.2.1 Unhealthy or Dangerous Labor. Unless the POW is a volunteer, he or

373

GPW art. 49 (“The Detaining Power may utilize the labour of prisoners of war who are physically fit, taking into
account their age, sex, rank and physical aptitude, and with a view particularly to maintaining them in a good stateof physical and mental health.”).
374
LEVIE, POWS 218-19 (“[T]he Detaining Power must take into account the age, sex, and physical aptitude of eachprisoner of war as an individual. It may be assumed that these criteria are to be considered not only in determining
whether a prisoner of war should be compelled to work, but also in determining the type of work to which theparticular prisoner of war should be assigned.”).
375

GPW art. 49 (“Non-commissioned officers who are prisoners of war shall only be required to do supervisory
work.”).

376

GPW art. 49 (“Those not so required may ask for other suitable work which shall, so far as possible, be found forthem.”).
377

GPW art. 49 (“If officers or persons of equivalent status ask for suitable work, it shall be found for them, so far as
possible, but they may in no circumstances be compelled to work.”).
378

Refer to § 7.9.5.6 (No Other Compulsory Duties); § 4.5.2.2 (Members Trained as Medical Personnel, but Not
Attached to the Medical Service); § 4.5.2.3 (Members Who Are Ministers of Religion Without Having Officiated as
Chaplains to Their Own Forces).
379

Refer to § 9.24.4.1 (Limitations on Other Work Assignments); § 9.24.4.2 (Assistants for the POW
Representatives).

584

she may not be employed on labor that is of an unhealthy or dangerous nature. 380
For example, the removal of landmines or similar devices is considered dangerous
labor. 381 “Similar devices” may be understood to include booby-traps and other devices that are
similar to landmines. 382
When employing POWs on dangerous or unhealthy activities, the Protecting Power or the
ICRC should assist in verifying the voluntariness of the employment, and the suitability of the
POW for such hazardous activities (e.g., any special skills or training in relation to the hazards)
should be considered. 383
9.19.2.2 Prohibited Labor Assignments. No POW shall be assigned to labor thatwould be looked upon as humiliating for a member of the Detaining Power’s own forces. 384
9.19.2.3 Labor Assignments That May Be Compelled. POWs, like other enemy
nationals, may not be compelled to take part in operations of war directed against their own
country. 385 POWs may be compelled to do only such work as is included in the followingclasses:•

POW camp administration, installation, and maintenance;•

agriculture;•industries connected with the production or the extraction of raw materials, andmanufacturing industries, with the exception of metallurgical, machinery, and chemicalindustries;•

public works and building operations having no military character or purpose;•transport and handling of stores not of a military character or purpose;•commercial businesses, including arts and crafts;•

domestic services; and380

GPW art. 52 (“Unless he be a volunteer, no prisoner of war may be employed on labour which is of an unhealthy
or dangerous nature.”).
381

GPW art. 52 (“The removal of mines or similar devices shall be considered as dangerous labour.”).

382

Refer to § 6.12.2 (Definition of Booby-Trap); § 6.12.3 (Definition of “Other Devices” Similar to Mines).

383

For example, 2004 UK MANUAL ¶8.85 footnote 251 (“Argentinian PW who were specialist engineers were usedin mine-clearance operations at the end of the Falklands conflict, but all were confirmed by the ICRC to be
volunteers.”).
384

GPW art. 52 (“No prisoner of war shall be assigned to labour which would be looked upon as humiliating for amember of the Detaining Power’s own forces.”).
385

Refer to § 5.27 (Prohibition Against Compelling Enemy Nationals to Take Part in the Operations of War Directed
Against Their Own Country).

585

•

public utilities having no military character or purpose. 386

Should the above provisions be infringed, POWs shall be allowed to exercise their rightof complaint, in conformity with Article 78 of the GPW. 387
9.19.3 Suitable Work Conditions. POWs must be granted suitable working conditions,especially as regards accommodation, food, clothing, and equipment. 388 For example, POWs
must be given additional rations or appropriate clothing, as necessary, for their work. 389
POWs’ working conditions shall not be inferior to those enjoyed by nationals of the
Detaining Power employed in similar work. 390 Account shall also be taken of climaticconditions. 391
9.19.3.1 Application of National Legislation for the Protection of Labor andRegulations for Worker Safety. The Detaining Power, in utilizing the labor of POWs, shallensure that in areas in which such POWs are employed, the national legislation concerning theprotection of labor, and, more particularly, the regulations for the safety of workers, are duly
applied. 392 For example, labor conditions for POWs working in the United States would bedetermined by U.S. Federal labor and safety laws.
Conditions of labor shall in no case be rendered more arduous by disciplinary
measures. 393 For example, the Detaining Power may not lower safety standards or disregard therequirements for protective equipment as a punishment for misbehavior. 394
386

GPW art. 50 (“Besides work connected with camp administration, installation or maintenance, prisoners of war
may be compelled to do only such work as is included in the following classes: (a) agriculture; (b) industries
connected with the production or the extraction of raw materials, and manufacturing industries, with the exceptionof metallurgical, machinery and chemical industries; public works and building operations which have no militarycharacter or purpose; (c) transport and handling of stores which are not military in character or purpose; (d)commercial business, and arts and crafts; (e) domestic service; (f) public utility services having no military characteror purpose.”).
387

GPW art. 50 (“Should the above provisions be infringed, prisoners of war shall be allowed to exercise their rightof complaint, in conformity with Article 78.”). Refer to § 9.23 (POW Requests, Complaints).
388

GPW art. 51 (providing that “[p]risoners of war must be granted suitable working conditions, especially as
regards accommodation, food, clothing and equipment;”).
389

Refer to § 9.13.1.2 (Additional Food for Certain Groups); § 9.13.4.2 (Appropriate Clothing for Work).

390

GPW art. 51 (providing that “such conditions shall not be inferior to those enjoyed by nationals of the Detaining
Power employed in similar work;”).
391

GPW art. 51 (“[A]ccount shall also be taken of climatic conditions.”).

392

GPW art. 51 (“The Detaining Power, in utilizing the labour of prisoners of war, shall ensure that in areas inwhich such prisoners are employed, the national legislation concerning the protection of labour, and, moreparticularly, the regulations for the safety of workers, are duly applied.”).
393

GPW art. 51 (“Conditions of labour shall in no case be rendered more arduous by disciplinary measures.”).

394

See also LEVIE, POWS 244 (“Thus, a Detaining Power may not lower safety standards, disregard requirementsfor protective equipment, lengthen working hours, withhold required extra rations, etc., as punishment for
misbehavior. On the other hand, ‘fatigue details’ of not more than two hours a day, or a monetary fine, or thewithdrawal of extra privileges, all of which are authorized as disciplinary punishment by Article 89, undoubtedly586

9.19.3.2 Training and Means of Protection. POWs shall receive training and be
provided with the means of protection suitable to the work they will have to do and similar to
those accorded to the nationals of the Detaining Power. 395 Subject to the provisions of Article 52of the GPW, POWs may be submitted to the normal risks run by these civilian workers. 396
9.19.3.3 Limits on the Duration of Labor. The duration of the daily labor of
POWs, including any travel time, shall not be excessive, and must in no case exceed that
permitted for civilian workers in the district, who are nationals of the Detaining Power andemployed on the same work. 397
POWs must be allowed, in the middle of the day’s work, a rest of not less than one
hour. 398 This rest will be the same as that to which workers of the Detaining Power are entitled,
if the latter is of longer duration. 399 POWs shall be allowed, in addition, a rest of 24 consecutive
hours every week, preferably on Sunday or the day of rest in their country of origin. 400
Furthermore, every POW who has worked for one year shall be granted a rest of eight
consecutive days, during which his or her working pay shall be paid to him or her. 401
If methods of labor, such as piece work, are employed, the length of the working period
shall not be rendered excessive thereby. 402 Piece work refers to the practice of assigning andcompensating for tasks as opposed to compensating based on the amount of time worked. 403
could be imposed, as they obviously do not fall within the ambit of the prohibition; and the extra rations to which
prisoners of war are entitled under Article 26, when they are engaged in heavy manual labor, could undoubtedly be
withheld from a prisoner of war who refuses to work, inasmuch as he would no longer meet the requirement for
entitlement to such extra rations.”).
395

GPW art. 51 (“Prisoners of war shall receive training and be provided with the means of protection suitable to thework they will have to do and similar to those accorded to the nationals of the Detaining Power.”).

396

GPW art. 51 (“Subject to the provisions of Article 52, prisoners may be submitted to the normal risks run bythese civilian workers.”). See also GPW art. 52 (“Unless he be a volunteer, no prisoner of war may be employed onlabour which is of an unhealthy or dangerous nature. No prisoner of war shall be assigned to labour which would be
looked upon as humiliating for a member of the Detaining Power’s own forces. The removal of mines or similar
devices shall be considered as dangerous labour.”). Refer to § 9.19.2.1 (Unhealthy or Dangerous Labor).
397
GPW art. 53 (“The duration of the daily labour of prisoners of war, including the time of the journey to and fro,shall not be excessive, and must in no case exceed that permitted for civilian workers in the district, who arenationals of the Detaining Power and employed on the same work.”).
398

GPW art. 53 (“Prisoners of war must be allowed, in the middle of the day’s work, a rest of not less than one
hour.”).
399

GPW art. 53 (“This rest will be the same as that to which workers of the Detaining Power are entitled, if the latter
is of longer duration.”).
400

GPW art. 53 (“They shall be allowed in addition a rest of twenty-four consecutive hours every week, preferably
on Sunday or the day of rest in their country of origin.”).
401

GPW art. 53 (“Furthermore, every prisoner who has worked for one year shall be granted a rest of eight
consecutive days, during which his working pay shall be paid him.”).
402

GPW art. 53 (“If methods of labour such as piece work are employed, the length of the working period shall not
be rendered excessive thereby.”).
403

DEPARTMENT OF THE ARMY PAMPHLET 20-213, History of Prisoner Of War Utilization By The United States
Army, 1776-1945, 120 (Jun. 24, 1955) (“On 26 April 1944, the Secretary of War approved an incentive pay plan for587

Thus, the limits on the number of hours of daily work cannot be circumvented by assigning workon the basis of tasks completed as opposed to requiring POWs to work a certain number ofhours. 404
9.19.4 Working Pay. The working pay due to POWs shall be fixed in accordance withthe provisions of Article 62 of the GPW. 405
POWs shall be paid a fair working rate of pay by the detaining authorities directly. 406
The rate shall be fixed by these authorities, but shall at no time be less than one-fourth of one
Swiss franc for a full working day. 407 The Detaining Power shall inform POWs, as well as thePower on which they depend, through the intermediary of the Protecting Power, of the rate ofdaily working pay that it has fixed. 408
Working pay shall likewise be paid by the detaining authorities to POWs permanently
detailed to duties, or to a skilled or semi-skilled occupation, in connection with theadministration, installation, or maintenance of camps, and to the POWs who are required to carryout spiritual or medical duties on behalf of their comrades. 409
Working pay of POW Representatives, their advisers, if any, or assistants, also isprovided for in the GPW. 410
9.19.5 Medical Fitness to Work. The fitness of POWs for work shall be periodicallyverified by medical examinations, at least once a month. 411 The examinations shall havepiecework which compensated the PW’s according to the number of units completed, up to a maximum of $1.20 perday. The objectives of this plan were to reward hard workers; to penalize laggards; and to encourage a greater
degree of teamwork among PW laborers.”).
404

LEVIE, POWS 248 (“With respect to hours of daily work, it must be noted, too, that the limitations contained in
the Article cannot be circumvented by the adoption of piecework, or some other task system, in lieu of a statednumber of working hours, the third paragraph of Article 53 of the Convention specifically prohibiting the renderingof the length of the working day excessive by the use of this method.”).

405

GPW art. 54 (“The working pay due to prisoners of war shall be fixed in accordance with the provisions ofArticle 62 of the present Convention.”).
406

GPW art. 62 (“Prisoners of war shall be paid a fair working rate of pay by the detaining authorities direct.”).

407

GPW art. 62 (“The rate shall be fixed by the said authorities, but shall at no time be less than one-fourth of one
Swiss franc for a full working day.”).
408

GPW art. 62 (“The Detaining Power shall inform prisoners of war, as well as the Power on which they depend,
through the intermediary of the Protecting Power, of the rate of daily working pay that it has fixed.”).
409

GPW art. 62 (“Working pay shall likewise be paid by the detaining authorities to prisoners of war permanently
detailed to duties or to a skilled or semi-skilled occupation in connection with the administration, installation or
maintenance of camps, and to the prisoners who are required to carry out spiritual or medical duties on behalf of
their comrades.”).
410

Refer to § 9.24.4.5 (Working Pay of POW Representatives, Advisers, and Assistants).

411

GPW art. 55 (“The fitness of prisoners of war for work shall be periodically verified by medical examinations atleast once a month.”).

588

particular regard to the nature of the work that the POWs are required to do. 412
If any POW considers himself or herself incapable of working, he or she shall bepermitted to appear before the medical authorities of the camp. 413 Physicians or surgeons may
recommend that the POWs who are, in their opinion, unfit for work, be exempted therefrom. 414
9.19.6 Accidents or Disease in Connection With Work. POWs who sustain accidents inconnection with work, or who contract a disease in the course or in consequence of their work,
shall receive all the care their condition may require. 415 The Detaining Power shall furthermoredeliver to such POWs a medical certificate enabling them to submit their claims to the Power onwhich they depend, and shall send a duplicate to the Central POW Information Agency provided
for in Article 123 of the GPW. 416
In certain cases, POWs who meet with accidents in connection with work would receive
the benefit of the provisions of the GPW as regards repatriation or accommodation in a neutral
country. 417
9.19.6.1 Claims for Compensation From Injury or Other Disability Arising Out of
Work. Any claim by a POW for compensation in respect of any injury or other disability arisingout of work shall be referred to the Power on which he or she depends, through the Protecting
Power. 418 In accordance with Article 54 of the GPW, the Detaining Power will, in all cases,
provide the POW concerned with a statement showing the nature of the injury or disability, thecircumstances in which it arose, and the particulars of medical or hospital treatment given forit. 419 This statement will be signed by a responsible officer of the Detaining Power and the
medical particulars certified by a medical officer. 420

412

GPW art. 55 (“The examinations shall have particular regard to the nature of the work which prisoners of war are
required to do.”).
413

GPW art. 55 (“If any prisoner of war considers himself incapable of working, he shall be permitted to appear
before the medical authorities of his camp.”).
414

GPW art. 55 (“Physicians or surgeons may recommend that the prisoners who are, in their opinion, unfit for
work, be exempted therefrom.”).
415

GPW art. 54 (“Prisoners of war who sustain accidents in connection with work, or who contract a disease in thecourse, or in consequence of their work, shall receive all the care their condition may require.”).
416

GPW art. 54 (“The Detaining Power shall furthermore deliver to such prisoners of war a medical certificate
enabling them to submit their claims to the Power on which they depend, and shall send a duplicate to the Central
Prisoners of War Agency provided for in Article 123.”).
417

Refer to § 9.36 (Direct Repatriation and Accommodation in Neutral Countries During Hostilities).

418

GPW art. 68 (“Any claim by a prisoner of war for compensation in respect of any injury or other disability
arising out of work shall be referred to the Power on which he depends, through the Protecting Power.”).
419

GPW art. 68 (“In accordance with Article 54, the Detaining Power will, in all cases, provide the prisoner of war
concerned with a statement showing the nature of the injury or disability, the circumstances in which it arose andparticulars of medical or hospital treatment given for it.”).
420

GPW art. 68 (“This statement will be signed by a responsible officer of the Detaining Power and the medical
particulars certified by a medical officer.”).

589

9.19.7 Labor Detachments. The organization and administration of labor detachments
shall be similar to those of POW camps. 421
Every labor detachment shall remain under the control of, and administratively part of, a
POW camp. 422 The military authorities and the commander of the POW camp shall be
responsible, under the direction of their government, for the observance of the provisions of the
GPW in labor detachments that are dependent upon the POW camp. 423
The camp commander shall keep an up-to-date record of the labor detachments
dependent on the camp, and shall communicate it to the delegates of the Protecting Power, of theICRC, or of other agencies giving relief to POWs, who may visit the camp. 424
9.19.8 POWs Working for Private Persons. The treatment of POWs who work for
private persons, even if the latter are responsible for guarding and protecting them, shall not be
inferior to that which is provided for by the GPW. 425 The Detaining Power, the military
authorities, and the commander of the camp to which such POWs belong shall be entirely
responsible for the maintenance, care, treatment, and payment of the working pay of such
POWs. 426
Such POWs shall have the right to remain in communication with the POW
Representatives in the camps on which they depend. 427
9.20 POW CORRESPONDENCE AND RELIEF SHIPMENTS
POWs may send and receive mail and relief shipments, subject to security requirements.
In addition, POWs benefit from certain postage exemptions.
9.20.1 Capture, Health, or Transfer Card. Immediately upon capture, or not more than
one week after arrival at a camp, even if it is a transit camp, likewise in case of sickness or
421

GPW art. 56 (“The organization and administration of labour detachments shall be similar to those of prisoner of
war camps.”).
422
GPW art. 56 (“Every labour detachment shall remain under the control of and administratively part of a prisonerof war camp.”).
423

GPW art. 56 (“The military authorities and the commander of the said camp shall be responsible, under the
direction of their government, for the observance of the provisions of the present Convention in labour
detachments.”).
424

GPW art. 56 (“The camp commander shall keep an up-to-date record of the labour detachments dependent on his
camp, and shall communicate it to the delegates of the Protecting Power, of the International Committee of the Red
Cross, or of other agencies giving relief to prisoners of war, who may visit the camp.”).
425

GPW art. 57 (“The treatment of prisoners of war who work for private persons, even if the latter are responsible
for guarding and protecting them, shall not be inferior to that which is provided for by the present Convention.”).
426

GPW art. 57 (“The Detaining Power, the military authorities and the commander of the camp to which such
prisoners belong shall be entirely responsible for the maintenance, care, treatment, and payment of the working payof such prisoners of war.”).
427

GPW art. 57 (“Such prisoners of war shall have the right to remain in communication with the prisoners'
representatives in the camps on which they depend.”).

590

transfer to a hospital or to another camp, every POW shall be enabled to write directly to his or
her family, on the one hand, and to the Central POW Information Agency provided for in Article
123 of the GPW, on the other hand, a card similar, if possible, to the model annexed to the GPW(GPW Annex IV B), informing his or her relatives of his or her capture, address, and state ofhealth. 428
These cards shall be forwarded as rapidly as possible and may not be delayed in any
manner. 429
9.20.2 POW Correspondence Rights and Quota. POWs shall be allowed to send andreceive letters and cards. 430
9.20.2.1 POW Correspondence Quota. If the Detaining Power deems it necessary
to limit the number of letters and cards sent by each POW, this number shall not be less than two
letters and four cards monthly, exclusive of the capture cards provided for in Article 70 of the
GPW (GPW Annex IV B), and conforming as closely as possible to the models annexed to the
GPW (GPW Annex IV C). 431 In addition, the following correspondence also does not counttoward this quota:•

formal requests and complaints; 432•

correspondence between a duly appointed POW Representative at a principal camp and a
POW Representative at a labor camp; 433•

authorized correspondence by chaplains; 434 and•correspondence by the senior medical officer in a camp with the competent authorities of
the camp regarding the duties of retained medical personnel. 435
Further limitations on POW correspondence may be imposed only if the Protecting

428
GPW art. 70 (“Immediately upon capture, or not more than one week after arrival at a camp, even if it is a transit
camp, likewise in case of sickness or transfer to hospital or to another camp, every prisoner of war shall be enabled
to write direct to his family, on the one hand, and to the Central Prisoners of War Agency provided for in Article
123, on the other hand, a card similar, if possible, to the model annexed to the present Convention, informing his
relatives of his capture, address and state of health.”).
429

GPW art. 70 (“The said cards shall be forwarded as rapidly as possible and may not be delayed in any manner.”).

430

GPW art. 71 (“Prisoners of war shall be allowed to send and receive letters and cards.”).

431

GPW art. 71 (“If the Detaining Power deems it necessary to limit the number of letters and cards sent by eachprisoner of war, the said number shall not be less than two letters and four cards monthly, exclusive of the capture
cards provided for in Article 70, and conforming as closely as possible to the models annexed to the present
Convention.”).
432

Refer to § 9.23.2 (Communication of Requests and Complaints).

433

Refer to § 9.24.4.6 (Facilities for Communication).

434

Refer to § 7.9.5.4 (Correspondence by Chaplains).

435

Refer to § 7.9.5.7 (Senior Medical Officer in the Camp).

591

Power is satisfied that it would be in the interests of the POWs concerned to do so owing todifficulties of translation caused by the Detaining Power’s inability to find sufficient qualified
linguists to carry out the necessary censorship. 436 If limitations must be placed on thecorrespondence addressed to POWs, they may be ordered only by the Power on which the POWs
depend, possibly at the request of the Detaining Power. 437 Such letters and cards must be
conveyed by the most rapid method at the disposal of the Detaining Power. 438
9.20.2.2 No Delay in Correspondence for Disciplinary Reasons. Cards and letters
may not be delayed or retained for disciplinary reasons. 439
9.20.2.3 More Rapid Means of Correspondence in Appropriate Cases. POWs
who have been without news for a long period, or who are unable to receive news from their nextof kin or to give them news by the ordinary postal route, as well as those who are at a great
distance from their homes, shall be permitted to send telegrams, the fees being charged against
the POWs’ accounts with the Detaining Power or paid in the currency at their disposal. 440 They
shall likewise benefit from this measure in cases of urgency. 441
More modern means of communication, such as email, should be considered for POW
correspondence, as appropriate. 442
9.20.2.4 Language of POW Correspondence. As a general rule, thecorrespondence of POWs shall be written in their native language. 443 The parties to the conflictmay allow correspondence in other languages. 444
9.20.2.5 Handling of Sacks of POW Mail. Sacks containing POW mail must be
securely sealed and labeled so as clearly to indicate their contents, and must be addressed to436

GPW art. 71 (“Further limitations may be imposed only if the Protecting Power is satisfied that it would be in theinterests of the prisoners of war concerned to do so owing to difficulties of translation caused by the Detaining
Power’s inability to find sufficient qualified linguists to carry out the necessary censorship.”).
437
GPW art. 71 (“If limitations must be placed on the correspondance addressed to prisoners of war, they may beordered only by the Power on which the prisoners depend, possibly at the request of the Detaining Power.”).
438

GPW art. 71 (“Such letters and cards must be conveyed by the most rapid method at the disposal of the Detaining
Power; they may not be delayed or retained for disciplinary reasons.”).
439

GPW art. 71 (“Such letters and cards must be conveyed by the most rapid method at the disposal of the Detaining
Power; they may not be delayed or retained for disciplinary reasons.”).
440

GPW art. 71 (“Prisoners of war who have been without news for a long period, or who are unable to receive news
from their next of kin or to give them news by the ordinary postal route, as well as those who are at a great distancefrom their homes, shall be permitted to send telegrams, the fees being charged against the prisoners of war’s
accounts with the Detaining Power or paid in the currency at their disposal.”).
441

GPW art. 71 (“They shall likewise benefit by this measure in cases of urgency.”).

442

Refer to § 8.10.3 (Communication With Family).

443

GPW art. 71 (“As a general rule, the correspondence of prisoners of war shall be written in their native
language.”).
444

GPW art. 71 (“The Parties to the conflict may allow correspondence in other languages.”).

592

“offices of destination.” 445
9.20.3 Receipt of Individual and Collective Relief Shipments for POWs. POWs shall beallowed to receive by post, or by any other means, individual parcels or collective shipments
containing, in particular, foodstuffs, clothing, medical supplies, and articles of a religious,
educational, or recreational character, which may meet their needs, including books, devotional
articles, scientific equipment, examination papers, musical instruments, sports outfits, andmaterials allowing POWs to pursue their studies or their cultural activities. 446 Such shipments
shall in no way free the Detaining Power from the obligations imposed upon it by virtue of the
GPW. 447
The only limits that may be placed on these shipments shall be those proposed by theProtecting Power in the interest of the POWs themselves, or by the ICRC or any otherorganization giving assistance to the POWs, in respect of their own shipments only, on accountof exceptional strain on transport or communications. 448
9.20.3.1 Separation of Books From Other Relief Supplies. Parcels of clothing andfoodstuffs may not include books. 449 Books should be separated because the time required forcensorship of books would likely delay the distribution of other relief supplies. 450
9.20.3.2 Medical Supplies in Relief Shipments. Medical supplies shall, as a rule,
be sent in collective parcels. 451 This rule is meant to ensure that medical supplies can beadministered by the camp doctors and not by the POWs themselves without medical
supervision. 452 This rule, however, would not prohibit, in exceptional cases, for example, special
445

GPW art. 71 (“Sacks containing prisoner of war mail must be securely sealed and labelled so as clearly toindicate their contents, and must be addressed to offices of destination.”).
446

GPW art. 72 (“Prisoners of war shall be allowed to receive by post or by any other means individual parcels orcollective shipments containing, in particular, foodstuffs, clothing, medical supplies and articles of a religious,
educational or recreational character which may meet their needs, including books, devotional articles, scientificequipment, examination papers, musical instruments, sports outfits and materials allowing prisoners of war to pursue
their studies or their cultural activities.”).
447

GPW art. 72 (“Such shipments shall in no way free the Detaining Power from the obligations imposed upon it byvirtue of the present Convention.”).
448

GPW art. 72 (“The only limits which may be placed on these shipments shall be those proposed by the Protecting
Power in the interest of the prisoners themselves, or by the International Committee of the Red Cross or any otherorganization giving assistance to the prisoners, in respect of their own shipments only, on account of exceptionalstrain on transport or communications.”).
449

GPW art. 72 (“Books may not be included in parcels of clothing and foodstuffs.”).

450

GPW COMMENTARY 377 (“As in the first paragraph, it is specified here [in the second paragraph of Article 76 of
the GPW] that delivery must not be delayed under the pretext of difficulties of censorship; the conditions are usuallydifferent, however. Except in the case of books, examination requires no linguistic ability and all delay cantherefore be avoided. This is particularly important in the case of parcels containing perishable goods.”). Compare§ 10.23.3.1 (Separation of Books From Other Relief Supplies).

451

GPW art. 72 (“Medical supplies shall, as a rule, be sent in collective parcels.”).

452

See GPW COMMENTARY 356 (“From the beginning of the Second World War, parcels of medical supplies
addressed by name were always sent to the chief medical officer of a camp or hospital or, if there was none, to ahead nurse, welfare officer or a representative of the local Red Cross. The question is now settled by paragraph 4 of593

medication being sent from family members to a POW. 453
9.20.3.3 Special Agreements Concerning Relief Shipments. The conditions for thesending of individual parcels and collective shipments shall, if necessary, be the subject ofspecial agreements between the Powers concerned, which may in no case delay the receipt by the
POWs of relief supplies. 454
9.20.3.4 Collective Relief for POWs. In the absence of special agreements
between the Powers concerned on the conditions for the receipt and distribution of collective
relief shipments, the rules and regulations concerning collective relief that are annexed to the
GPW shall be applied (GPW Annex III). 455
The special agreements referred to above shall in no case restrict the right of POW
Representatives to take possession of collective relief shipments intended for POWs, to proceed
to their distribution, or to dispose of them in the interest of the POWs. 456 Nor shall suchagreements restrict the right of representatives of the Protecting Power, the ICRC, or any otherorganization giving assistance to POWs and responsible for the forwarding of collective
shipments, to supervise their distribution to the recipients. 457
9.20.4 Exemptions From Postal and Shipping Charges. Relief shipments for POWs andmail sent by POWs or to them benefit from certain exemptions under international law.
9.20.4.1 Exemption From Dues for Relief Shipments. All relief shipments for
POWs shall be exempt from import, customs, or other dues. 458
9.20.4.2 GPW Postal Dues Exemption. Under the GPW, correspondence, relief
shipments, and authorized remittances of money addressed to POWs or sent by them through thethe present Article, which states that, as a rule, medical supplies are to be sent in collective parcels. This solution
was adopted in the interest of the prisoners of war, who should not have access to medical supplies except under
medical supervision.”).
453

Compare § 10.23.3.2 (Medical Supplies in Relief Shipments).

454

GPW art. 72 (“The conditions for the sending of individual parcels and collective relief shall, if necessary, be thesubject of special agreements between the Powers concerned, which may in no case delay the receipt by theprisoners of relief supplies.”).
455

GPW art. 73 (“In the absence of special agreements between the Powers concerned on the conditions for thereceipt and distribution of collective relief shipments, the rules and regulations concerning collective shipments,
which are annexed to the present Convention, shall be applied.”).
456

GPW art. 73 (“The special agreements referred to above shall in no case restrict the right of prisoners’
representatives to take possession of collective relief shipments intended for prisoners of war, to proceed to theirdistribution or to dispose of them in the interest of the prisoners.”).
457

GPW art. 73 (“Nor shall such agreements restrict the right of representatives of the Protecting Power, theInternational Committee of the Red Cross or any other organization giving assistance to prisoners of war andresponsible for the forwarding of collective shipments, to supervise their distribution to the recipients.”).
458
GPW art. 74 (“All relief shipments for prisoners of war shall be exempt from import, customs and other dues.”).
See also HAGUE IV REG. art. 16 (“Presents and relief in kind for prisoners of war shall be admitted free of all importor other duties, as well as of payments for carriage by the State railways.”).

594

post office, either directly or through the National POW Information Bureau provided for in
Article 122 of the GPW and the Central POW Information Agency provided for in Article 123 of
the GPW, shall be exempt from any postal dues, both in the countries of origin and destination,and in intermediate countries. 459
9.20.4.3 Exemption From Postal Charges Under the Universal Postal
Convention. Under the Universal Postal Convention, with the exception of air surcharges for
airmail, letter-post items, postal parcels, and monetary articles addressed to or sent by POWs,
either directly or through the National POW Information Bureau and the Central POW
Information Agency, shall be exempt from all postal charges. 460 This exemption also applies tobelligerents captured and interned in neutral countries. 461
Parcels shall be admitted free of postage up to a weight of 5 kg. 462 The weight limit shallbe increased to 10 kg in the case of parcels the contents of which cannot be split up and ofparcels addressed to a camp or the POW Representatives there for distribution to the POWs. 463
Items exempt from postal charges and POW parcels shall bear “Service des prisonniers

459

GPW art. 74 (“Correspondence, relief shipments and authorized remittances of money addressed to prisoners of
war or despatched by them through the post office, either direct or through the Information Bureaux provided for in
Article 122 and the Central Prisoners of War Agency provided for in Article 123, shall be exempt from any postal
dues, both in the countries of origin and destination, and in intermediate countries.”).
460

Universal Postal Convention, art. 17(1), Dec. 14, 1989, 1687 UNTS 241, 251-52 (“Subject to article 21,
paragraph 1, letter-post items, postal parcels and monetary articles addressed to or sent by prisoners of war, either
direct or through the Information Bureaux and the Central Prisoner-of-War Information Agency provided for inarticles 122 and 123 respectively of the Geneva Convention of 12 August 1949 relative to the treatment of prisonersof war, shall be exempt from all postal charges.”). Consider Universal Postal Convention, art. 7(2.1), Oct. 11, 2012,
reprinted in INTERNATIONAL BUREAU OF THE UNIVERSAL POSTAL UNION, LETTER POST MANUAL, page C.8 (Berne
2013, Update 2 – Jan. 2015) (“Letter-post items, postal parcels and postal payment services items addressed to or
sent by prisoners of war, either direct or through the offices mentioned in the Regulations of the Convention and of
the Postal Payment Services Agreement, shall be exempt from all postal charges, with the exception of airsurcharges.”).
461

Universal Postal Convention, art. 17, Dec. 14, 1989, 1687 UNTS 241, 251-52 (“Belligerents apprehended andinterned in a neutral country shall be classed with prisoners of war proper so far as the application of the foregoingprovisions is concerned.”). Consider Universal Postal Convention, art. 7(2.1), Oct. 11, 2012, reprinted in
INTERNATIONAL BUREAU OF THE UNIVERSAL POSTAL UNION, LETTER POST MANUAL, page C.8 (Berne 2013,
Update 2 – Jan. 2015) (same).
462

Universal Postal Convention, art. 17(4), Dec. 14, 1989, 1687 UNTS 241, 252 (“Parcels shall be admitted free of
postage up to a weight of 5 kg.”). Consider Universal Postal Convention, art. 7(2.4), Oct. 11, 2012, reprinted in
INTERNATIONAL BUREAU OF THE UNIVERSAL POSTAL UNION, LETTER POST MANUAL, page C.8 (Berne 2013,
Update 2 – Jan. 2015) (“Parcels shall be admitted free of postage up to a weight of 5 kilogrammes.”).
463

Universal Postal Convention, art. 17(4), Dec. 14, 1989, 1687 UNTS 241, 252 (“The weight limit shall be
increased to 10 kg in the case of parcels the contents of which cannot be split up and of parcels addressed to a campor the prisoners’ representatives there (‘hommes de confiance’) for distribution to the prisoners.”). Consider
Universal Postal Convention, art. 7(2.4), Oct. 11, 2012, reprinted in INTERNATIONAL BUREAU OF THE UNIVERSALPOSTAL UNION, LETTER POST MANUAL, page C.8 (Berne 2013, Update 2 – Jan. 2015) (“The weight limit shall be
increased to 10 kilogrammes in the case of parcels the contents of which cannot be split up and of parcels addressed
to a camp or the prisoners’ representatives there (‘hommes de confiance’) for distribution to the prisoners.”).

595

de guerre” (“Prisoner-of-war Service) and a translation in another language, if appropriate. 464
Postal administrations shall not be liable for the loss of, theft from, or damage to parcels
in the case of POW parcels. 465
9.20.4.4 Costs of Transporting Relief Shipments Outside the Post Office. If relief
shipments intended for POWs cannot be sent through the post office by reason of weight or for
any other cause, the cost of transportation shall be borne by the Detaining Power in all theterritories under its control. 466 The other Parties to the GPW shall bear the cost of transport intheir respective territories. 467
In the absence of special agreements between the Parties concerned, the costs connectedwith transport of such shipments, other than costs covered by the above exemption, shall becharged to the senders. 468
9.20.4.5 Rates Charged for Telegrams. The Parties to the GPW shall endeavor to
reduce, so far as possible, the rates charged for telegrams sent by POWs, or addressed to them. 469
9.20.5 Special Means of Transport of Shipments to POWs. Should military operations
prevent the Powers concerned from fulfilling their obligation to ensure the transport of theshipments referred to in Articles 70, 71, 72, and 77 of the GPW, the Protecting Powers
concerned, the ICRC, or any other organization duly approved by the parties to the conflict may
undertake to ensure the conveyance of such shipments by suitable means (railway wagons, motor
vehicles, vessels, or aircraft, etc.). 470 For this purpose, the Parties to the GPW shall endeavor to464

Consider Letter Post Regulations, Article RL 112 to Article 7 of the Universal Postal Convention of Oct. 11,
2012, reprinted in INTERNATIONAL BUREAU OF THE UNIVERSAL POSTAL UNION, LETTER POST MANUAL, page C.11
(2015) (“Items exempt from postal charges shall bear, on the address side in the top right-hand corner, the following
indications, which may be followed by a translation: ‘Service des prisonniers de guerre’ (Prisoners-of-war service)or ‘Servicedes internés civils’ (Civilian internees service) for the items mentioned in article 7.2 of the Convention
and article RL 111 and the forms relating to them;”); Parcel Post Regulations, Article RC 112(2), reprinted in
INTERNATIONAL BUREAU OF THE UNIVERSAL POSTAL UNION, PARCEL POST MANUAL, page D.10 (2015) (“Every
prisoner-of-war and civilian internee parcel and its dispatch note shall bear, the former beside the address, one of theindications ‘Service des prisonniers de guerre’ (Prisoner-of-war Service) or ‘Service des internés civils’ (Civilian
Internees Service); these indications may be followed by a translation in another language.”).
465

Postal Parcels Agreement, art. 41(2)(f), Dec. 14, 1989, 1687 UNTS 346, 369 (“Postal administrations shall not beliable for the loss of, theft from or damage to parcels in the case of prisoner-or-war or civilian internee parcels.”).
466

GPW art. 74 (“If relief shipments intended for prisoners of war cannot be sent through the post office by reason
of weight or for any other cause, the cost of transportation shall be borne by the Detaining Power in all the territories
under its control.”).
467

GPW art. 74 (“The other Powers party to the Convention shall bear the cost of transport in their respective
territories.”).
468

GPW art. 74 (“In the absence of special agreements between the Parties concerned, the costs connected withtransport of such shipments, other than cost covered by the above exemption, shall be charged to the senders.”).
469

GPW art. 74 (“The High Contracting Parties shall endeavour to reduce, so far as possible, the rates charged fortelegrams sent by prisoners of war, or addressed to them.”).
470

GPW art. 75 (“Should military operations prevent the Powers concerned from fulfilling their obligation to assure
the transport of the shipments referred to in Articles 70, 71, 72 and 77, the Protecting Powers concerned, theInternational Committee of the Red Cross or any other organization duly approved by the Parties to the conflict may

596

supply them with such transport, and to allow its circulation, especially by granting the necessary
safe-conducts. 471
Such transport may also be used to convey:•

correspondence, lists, and reports exchanged between the Central POW Information
Agency referred to in Article 123 of the GPW and the National POW Information Bureaureferred to in Article 122 of the GPW; and•correspondence and reports relating to POWs that the Protecting Powers, the ICRC, or
any other body assisting the POWs exchange either with their own delegates or with theparties to the conflict. 472

These provisions in no way detract from the right of any party to the conflict to arrange
other means of transport, if it should so prefer, nor preclude the granting of safe-conducts, under
mutually agreed conditions, to such means of transport. 473
In the absence of special agreements, the costs occasioned by the use of such means oftransport shall be borne proportionally by the parties to the conflict whose nationals are benefited
thereby. 474 Expenses in setting up the special transport system are not specifically addressed by
the GPW, and presumably would be addressed by an agreement between the body that takes theinitiative in establishing the system and the Powers concerned. 475
9.20.6 Censorship and Security Review of POW Correspondence and Shipments. The
Detaining Power may examine and censor all communications sent to or by POWs, including
correspondence, telegrams, parcels, newspapers, periodicals, and books, with a view to deletingor confiscating matter prejudicial to its military security. 476 The Detaining Power’s general rightundertake to ensure the conveyance of such shipments by suitable means (railway wagons, motor vehicles, vessels
or aircraft, etc.)”).
471

GPW art. 75 (“For this purpose, the High Contracting Parties shall endeavour to supply them with such transport
and to allow its circulation, especially by granting the necessary safe-conducts.”).
472

GPW art. 75 (“Such transport may also be used to convey: (a) correspondence, lists and reports exchanged
between the Central Information Agency referred to in Article 123 and the National Bureaux referred to in Article
122; (b) correspondence and reports relating to prisoners of war which the Protecting Powers, the International
Committee of the Red Cross or any other body assisting the prisoners, exchange either with their own delegates orwith the Parties to the conflict.”).
473

GPW art. 75 (“These provisions in no way detract from the right of any Party to the conflict to arrange othermeans of transport, if it should so prefer, nor preclude the granting of safe-conducts, under mutually agreed
conditions, to such means of transport.”).
474

GPW art. 75 (“In the absence of special agreements, the costs occasioned by the use of such means of transportshall be borne proportionally by the Parties to the conflict whose nationals are benefited thereby.”).

475

See GPW COMMENTARY 468 (“This paragraph deals with the expenditure involved in the use of specialtransport, but not the expenditure incurred in setting up the special transport system. On this latter point theConvention says nothing and it is therefore to be supposed that such expenses will be covered by agreement between
the body which takes the initiative in the matter and the Powers concerned.”).

476

Compare § 10.23.6 (Censorship and Security Review of Internee Correspondence and Shipments).

597

to conduct censorship is an implicit assumption in the GPW, as it is in the GC. 477 POWs’
complaints, petitions, and reports may be subject to security review and censorship to ensure thatthey are not misused. 478
The censoring of correspondence addressed to POWs or sent by them shall be done asquickly as possible. 479 Mail shall be censored only by the State from which the mail is sent andthe State that receives the mail, and only once by each State. 480
9.20.6.1 Examination of Consignments. The examination of consignments
intended for POWs shall not be carried out under conditions that will expose the goods containedin them to deterioration; except in the case of written or printed matter, it shall be done in thepresence of the addressee, or of a fellow POW duly delegated by him or her. 481
The delivery to POWs of individual or collective consignments shall not be delayed
under the pretext of difficulties of censorship. 482
9.20.6.2 Prohibitions of Correspondence. Any prohibition of correspondence
ordered by parties to the conflict, either for military or political reasons, shall be only temporary
and its duration shall be as short as possible. 483
9.21 PRIVATE LEGAL MATTERS OF POWS
9.21.1 Civil Capacity. POWs shall retain their full civil capacity that they enjoyed at thetime of their capture. 484 Their retention of their full civil capacity at the time of capture meansthat the law that applied to them before becoming a POW would continue to apply to them. 485

477

Refer to § 10.23.6 (Censorship and Security Review of Internee Correspondence and Shipments).

478

Refer to § 9.23.2.1 (Review and Censorship of Requests and Complaints by the Detaining Power); § 9.23.3(Periodic Reports by the POW Representatives).
479

GPW art. 76 (“The censoring of correspondence addressed to prisoners of war or despatched by them shall bedone as quickly as possible.”).
480

GPW art. 76 (“Mail shall be censored only by the despatching State and the receiving State, and once only byeach.”).
481

GPW art. 76 (“The examination of consignments intended for prisoners of war shall not be carried out underconditions that will expose the goods contained in them to deterioration; except in the case of written or printed
matter, it shall be done in the presence of the addressee, or of a fellow-prisoner duly delegated by him.”).
482

GPW art. 76 (“The delivery to prisoners of individual or collective consignments shall not be delayed under thepretext of difficulties of censorship.”).
483

GPW art. 76 (“Any prohibition of correspondence ordered by Parties to the conflict, either for military or
political reasons, shall be only temporary and its duration shall be as short as possible.”).

484

GPW art. 14 (“Prisoners of war shall retain the full civil capacity which they enjoyed at the time of theircapture.”).
485

GPW COMMENTARY 149 (“The 1949 Diplomatic Conference considered it necessary to clarify the 1929 text
establishing the civil capacity of prisoners of war. It was recalled that this capacity is always determined by law,whether the legislation of the country of origin of the internee or that of his country of domicile. But the prisoner
will never be considered as ‘resident’ in the country of detention solely by virtue of the fact that he is in captivity.

598

The Detaining Power may not restrict the exercise, either within or without its own
territory, of the rights such capacity confers, except in so far as the captivity requires. 486 Thus,
POWs may, to the extent consistent with their detention, continue to exercise the civil capacitythat they would have in their own country under that country’s law. 487 For example, to thedegree permitted by captivity, POWs may take legal steps that they were able to take before
captivity, such as disposing of property, making wills, giving consent to marriage, voting, or
executing a power of attorney. 488
9.21.2 Legal Documents and Assistance. The Detaining Powers shall provide all
facilities for the transmission, through the Protecting Power or the Central POW Information
Agency provided for in Article 123 of the GPW, of instruments, papers, or documents intended
for POWs or sent by them, especially powers of attorney and wills. 489 In all cases, the Detaining
Power shall facilitate the preparation and execution of such documents on behalf of POWs; inparticular, they shall allow them to consult a lawyer and shall take what measures are necessary
for the authentication of their signatures. 490
9.21.2.1 Preparation of Wills. Wills of POWs shall be drawn up so as to satisfy
the conditions of validity required by the legislation of their country of origin, which will takesteps to inform the Detaining Power of its requirements in this respect. 491 For States with federal
systems like the United States in which the requirements of wills may vary according tojurisdictions within the State, the will should satisfy those provincial or state law requirements.

The legislation of his country of origin will, therefore, be applicable in most cases as that is also the country of
domicile of the majority of prisoners. There are other possibilities, however, and for that reason the Stockholm
draft, which only referred to the law of the country of origin, was amended by the Geneva Conference, so as to refer
instead to the ‘civil capacity which they enjoyed at the time of their capture’.”).
486

GPW art. 14 (“The Detaining Power may not restrict the exercise, either within or without its own territory, ofthe rights such capacity confers except in so far as the captivity requires.”).
487

II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 249 (“General DILLON (United Statesof America) fully agreed with the United Kingdom Delegate's observations regarding the second paragraph. As
regards the third paragraph, he felt that a prisoner of war should be accorded all the civil rights that he would have in
his own country, under his own country's legislation. He could not exercise them in the country of the Detaining
Power, but could, on the other hand, exercise them in a prisoner of war camp. If he was a notary public, forinstance, he could draw up authentic documents for his fellow prisoners and transmit them through the Protecting
Power.”).

488

2004 UK MANUAL ¶8.70 (“It means that prisoners of war are free, so far as captivity permits, to take legal steps
in their state of origin, for example to dispose of property, make wills, give consent to marriage, or vote. Suchaction will normally be taken by appointment of an attorney or proxy.”).

489

GPW art. 77 (“The Detaining Powers shall provide all facilities for the transmission, through the Protecting
Power or the Central Prisoners of War Agency provided for in Article 123, of instruments, papers or documents
intended for prisoners of war or despatched by them, especially powers of attorney and wills.”).
490

GPW art. 77 (“In all cases they shall facilitate the preparation and execution of such documents on behalf ofprisoners of war; in particular, they shall allow them to consult a lawyer and shall take what measures are necessary
for the authentication of their signatures.”).
491
GPW art. 120 (“Wills of prisoners of war shall be drawn up so as to satisfy the conditions of validity required by
the legislation of their country of origin, which will take steps to inform the Detaining Power of its requirements inthis respect.”).

599

At the request of the POW, the will shall be transmitted without delay to the Protecting
Power; a certified copy shall be sent to the Central POW Information Agency. 492
9.22 INTERNAL DISCIPLINE OF POW CAMPS
9.22.1 POW Camp Commander. Every POW camp shall be put under the immediateauthority of a responsible commissioned officer belonging to the regular armed forces of the
Detaining Power. 493 For example, a non-commissioned officer, a contractor, a civilian, amember of a paramilitary force, or an enemy POW may not be the camp commander. 494 The
POW camp commander has disciplinary powers over POWs. 495
9.22.2 POWs’ Status With Respect to Their Armed Forces. Although POWs are notsubject to the judicial or disciplinary procedures of the Power to which they belong while they
are POWs, POWs remain subject to the law, disciplinary authority, and regulations of the Poweron which they depend. 496 For example, while they are POWs, they may not conduct disciplinary
proceedings against one another; however, they are liable to punishment for violationscommitted during captivity, once they have been released and repatriated. 497
9.22.3 Saluting Between POWs and Officers of the Detaining Power. POWs, with the492

GPW art. 120 (“At the request of the prisoner of war and, in all cases, after death, the will shall be transmitted
without delay to the Protecting Power; a certified copy shall be sent to the Central Agency.”).
493

GPW art. 39 (“Every prisoner of war camp shall be put under the immediate authority of a responsible
commissioned officer belonging to the regular armed forces of the Detaining Power.”).
494

See GPW COMMENTARY 239-40 (“The principle that a responsible commander should be appointed in each camp
was already set forth in the 1929 Convention, Article 18, paragraph 1: “Each prisoners-of-war camp shall be placed
under the authority of a responsible officer”. The brevity of that text led to considerable abuse of the provision
when disciplinary powers were delegated to non-commissioned officers and even to prisoners of war.”).
495

Refer to § 9.27.1 (POW Camp Authorities Who May Order Disciplinary Punishment).

496

See GPW COMMENTARY 408-09 (“Although the legislation of the Detaining Power is applicable to him during
his captivity, he remains subject to the military law of his State of origin, as a member of its armed forces. He may
therefore be made answerable before the courts of his country for his acts, and cannot plead in defence that national
legislation is inapplicable because it is suspended by Article 82.”).
497

See, e.g., 10 U.S.C. § 905 (“Misconduct as a prisoner. Any person subject to this chapter who, while in thehands of the enemy in time of war-- (1) for the purpose of securing favorable treatment by his captors acts without
proper authority in a manner contrary to law, custom, or regulation, to the detriment of others of whatevernationality held by the enemy as civilian or military prisoners; or (2) while in a position of authority over such
persons maltreats them without justifiable cause; shall be punished as a court-martial may direct.”); United States v.
Dickenson 17 C.M.R. 438, 442 U.S. Army Board of Review (1954) (U.S. POW during the Korean War was foundguilty of committing offense when he “for the purpose of securing favorable treatment by his captors, report[ed] tothe enemy officials in command of Prisoner of War Camp Number Five, Pyoktong, North Korea, the preparations
by Edward M. Gaither, then Private First Class Edward M. Gaither, United States Army, a prisoner of war at said
camp, to escape, as a result of which report the said Edward M. Gaither was placed by the enemy before a mockfiring squad on three occasions, placed by the enemy in solitary confinement for approximately seven months andseverely kicked and beaten with clubs by the enemy.”); United States v. Garwood, 16 M.J. 863, 865 United States
Navy-Marine Corps Court of Military Review (1983) (U.S. POW during the Vietnam War was found guilty ofcommitting offenses “of aiding enemy forces within prisoner of war camps in the Republic of South Vietnam, in
violation of Article 104, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 904, and of assault of an American
prisoner of war interned in an enemy prisoner of war camp, in violation of Article 128, UCMJ, 10 U.S.C. § 928.”).

600

exception of officers, must salute and show to all officers of the Detaining Power the externalmarks of respect provided for by the regulations applying in their own forces. 498 POWs need not
salute Detaining Power non-commissioned officers or persons of equivalent status to officers
belonging to the Detaining Power. 499
The form and conditions for saluting and showing external marks of respect are to be
determined by the regulations applying in the armed forces to which the POWs belong. 500 Other
external marks of respect may include, for example, standing at attention when an officer enters
the room. 501
Officer POWs are bound to salute only Detaining Power officers of higher rank and thecamp commander, regardless of his or her rank. 502
Although not required by the GPW, Detaining Power officers should return salutes as amatter of courtesy. 503 Members of the armed forces of the Detaining Power are not required tosalute POWs of superior rank. 504
9.22.4 Rank and Age of POWs. POWs shall be treated with the regard due to their rank
and age. 505 POWs shall be permitted to wear their badges of rank, nationality, or decorations. 506
For example, rank insignia or similar devices may be worn by POWs.
498

GPW art. 39 (“Prisoners of war, with the exception of officers, must salute and show to all officers of the
Detaining Power the external marks of respect provided for by the regulations applying in their own forces.”).
499

GPW COMMENTARY 240-41 (“This provision requires prisoners of war to show the relevant external marks ofrespect to all officers; at the same time, it automatically excludes from this privilege any representative of the
Detaining Power who is not an officer or does not wear officer’s uniform. Similarly, it excludes all noncommissioned officers, regardless of the laws and regulations of the Detaining Power.”).
500

GPW COMMENTARY 241 (“The present provision does not merely state to whom prisoners of war must give thesalute and show external marks of respect; it also determines the form and conditions for doing so, by referring
explicitly to the regulations applying in the armed forces to which the prisoners belong. This provision is likely toprevent any recurrence of incidents such as those which took place during the Second World War, when certain
belligerents insisted on prisoners conforming to the regulations for saluting applicable in the armed forces of the
Detaining Power.”).

501

LEVIE, POWS 171, footnote 299 (“Other external marks of respect would include standing when the officer enters
the room, remaining at attention while conversing with the officer, etc. These are not marks of obsequiousness, butof disciplined training.”).

502

GPW art. 39 (“Officer prisoners of war are bound to salute only officers of a higher rank of the Detaining Power;
they must, however, salute the camp commander regardless of his rank.”).
503

See GPW COMMENTARY 241 (“There is one more question, in this connection, which gave rise to somedifficulty: that of officers of the Detaining Power returning the salute of prisoners of war. The Conference ofGovernment Experts considered that this was a matter of courtesy and did not call for precise ruling.”).
504

LEVIE, POWS 170 (“Members of the armed forces of the Detaining Power are not required to salute prisoners of
war of superior rank.”).
505

GPW art. 44 (“Officers and prisoners of equivalent status shall be treated with the regard due to their rank andage.”); GPW art. 45 (“Prisoners of war other than officers and prisoners of equivalent status shall be treated with theregard due to their rank and age.”).
506

GPW art. 40 (“The wearing of badges of rank and nationality, as well as of decorations, shall be permitted.”).

601

The rank of POWs also determines the amount of the advances of pay that they areentitled to receive. 507 In addition, POWs awarded disciplinary punishment may not be deprivedof the prerogatives of rank. 508
9.22.4.1 Communication of Titles and Ranks. Upon the outbreak of hostilities, theparties to the conflict shall communicate to one another the titles and ranks of all the persons
mentioned in Article 4 of the GPW, in order to ensure equality of treatment between POWs ofequivalent rank. 509 Titles and ranks that are subsequently created shall form the subject ofsimilar communications. 510
9.22.4.2 Recognition of Promotions in Rank. Promotions in rank of POWs thathave been accorded to POWs and that have been duly notified by the Power on which the POWs
depend shall be recognized. 511
9.22.5 Posting of Convention and Camp Orders. In every POW camp the text of the
GPW and its Annexes, and the contents of any applicable special agreements, shall be posted, in
the POWs’ own language, in places where all may read them. 512 The POWs’ own languagemeans an official language of the State to which they belong. 513 Copies shall be supplied, on
request, to the POWs who cannot have access to the posted copy. 514
Regulations, orders, notices, and publications of every kind relating to the conduct ofPOWs shall be issued to them in a language that they understand. 515 Such regulations, orders,and publications shall be posted in the same manner as the GPW, and copies shall be handed to507

Refer to § 9.18.3.1 (GPW Specified Amounts for Monthly Advances of Pay).

508

Refer to § 9.27.6.3 (Disciplinary Punishment - Retention of Prerogatives of Rank).

509

GPW art. 43 (“Upon the outbreak of hostilities, the Parties to the conflict shall communicate to one another thetitles and ranks of all the persons mentioned in Article 4 of the present Convention, in order to ensure equality oftreatment between prisoners of equivalent rank.”).
510

GPW art. 43 (“Titles and ranks which are subsequently created shall form the subject of similar
communications.”).
511

GPW art. 43 (“The Detaining Power shall recognize promotions in rank which have been accorded to prisonersof war and which have been duly notified by the Power on which these prisoners depend.”).
512

GPW art. 41 (“In every camp the text of the present Convention and its Annexes and the contents of any special
agreement provided for in Article 6, shall be posted, in the prisoners' own language, in places where all may readthem.”).
513

See GPW COMMENTARY 244 (“The 1929 Convention made the situation still more difficult by stipulating that the
text must be posted ‘in the native language of the prisoners of war’; the present Article refers merely to ‘theprisoners’ own language’, this being the official language of the prisoners’ country of origin-the language used inthat country for official records and the publication of legislation. Where there is more than one official language inthe country of origin, the Convention should, if possible, be posted in the language actually used by the prisoners
concerned.”).
514

GPW art. 41 (“Copies shall be supplied, on request, to the prisoners who cannot have access to the copy which
has been posted.”).
515

GPW art. 41 (“Regulations, orders, notices and publications of every kind relating to the conduct of prisoners of
war shall be issued to them in a language which they understand.”).

602

the POW Representative. 516 Every order and command addressed to POWs individually must
likewise be given in a language that they understand. 517
9.22.6 Use of Force to Maintain Order and to Prevent Escape. The use of weapons
against POWs, especially against those who are escaping or attempting to escape, shall constitutean extreme measure, which shall always be preceded by warnings appropriate to thecircumstances. 518 For example, POWs should not be fired upon if they are apprehended within
the camp limits while making preparations to escape and there is no risk of escape or harm toanyone. 519
9.22.6.1 Use of Non-Lethal Weapons (Including Riot Control Agents). Non-lethal
weapons may be employed to control rioting POWs or to prevent their escape. 520 In particular,
the use of riot control agents to control rioting POWs is not prohibited. 521
If the use of deadly force is warranted and authorized against POWs, there is no legal
requirement to employ non-lethal weapons before resort to deadly force. 522
9.23 POW REQUESTS, COMPLAINTS, AND REPORTS ABOUT CONDITIONS OF CAPTIVITY
9.23.1 POW Right to Make Requests and Complaints. POWs shall have the right tomake known, to the military authorities in whose power they are, their requests regarding theconditions of captivity to which they are subjected. 523 The commander of a POW camp may
issue regulations that establish procedures about how POWs are to make these requests. 524
516

GPW art. 41 (“Such regulations, orders and publications shall be posted in the manner described above andcopies shall be handed to the prisoners’ representative.”).
517

GPW art. 41 (“Every order and command addressed to prisoners of war individually must likewise be given in alanguage which they understand.”).
518

GPW art. 42 (“The use of weapons against prisoners of war, especially against those who are escaping or
attempting to escape, shall constitute an extreme measure, which shall always be preceded by warnings appropriate
to the circumstances.”).
519

GPW COMMENTARY 246 (“It is also important, however, to make a distinction between escape proper and acts orphases preparatory thereto. If a prisoner is surprised within the camp limits while making preparations to escape,there is no justification for opening fire on him.”).

520

GPW COMMENTARY 247 (“Before resorting to weapons of war, sentries can use others which do not cause fatal
injury and may even be considered as warnings--tear-gas, truncheons, etc. These measures may prove inadequate,
however, and from the moment when the guards and sentries are about to be overwhelmed, or are obliged to act inlegitimate self-defence, they are justified in opening fire.”).

521

Refer to § 6.16.2 (Prohibition on Use of Riot Control Agents as a Method of Warfare).

522

Refer to § 6.5.10.5 (No Requirement to Use Non-Lethal Weapons Before Using Lethal Weapons Where Deadly
Force Is Warranted).
523

GPW art. 78 (“Prisoners of war shall have the right to make known to the military authorities in whose power
they are, their requests regarding the conditions of captivity to which they are subjected.”).
524

GPW COMMENTARY 383 (“This right [under Article 78 of the GPW to make requests] must obviously be
exercised in a manner compatible with the normal requirements of discipline and camp administration and may not
be used for purposes other than those arising under the Convention. If need be, the camp commander will issue
regulations concerning the exercise of this right.”).

603

POWs shall also have the unrestricted right to apply to the representatives of theProtecting Powers, either through their POW Representative or, if they consider it necessary,
directly, in order to draw their attention to any points on which they may have complaints tomake regarding their conditions of captivity. 525
9.23.1.1 Making Requests and Complaints to the ICRC. Such complaints may
also be made to the delegates of the ICRC who enjoy the same prerogatives of access as therepresentatives of the Protecting Power. 526 In the past, the ICRC has been able to takeappropriate measures besides merely forwarding the complaint to the Power on which the POWs
depend, including measures on a confidential basis that help improve the situations of POWs. 527
9.23.2 Communication of Requests and Complaints. These requests and complaints shallneither be limited nor considered to be part of the correspondence quota referred to in Article 71of the GPW. 528 They must be transmitted immediately. 529
9.23.2.1 Review and Censorship of Requests and Complaints by the Detaining
Power. Complaints and requests by the POWs that are to be transmitted to the representatives of
the Protecting Power may be reviewed and censored for security reasons by the Detaining
Power, although the right of the POWs to make complaints about their conditions of captivity to
the representatives of the Protecting Power must not be restricted. 530 In addition, security review
and censorship must be conducted in accordance with the general rules on censoring POW
525

GPW art. 78 (“They shall also have the unrestricted right to apply to the representatives of the Protecting Powers
either through their prisoners' representative or, if they consider it necessary, direct, in order to draw their attention
to any points on which they may have complaints to make regarding their conditions of captivity.”).
526

Refer to § 9.33.1.2 (ICRC Delegates Enjoying the Same Prerogatives of Access).

527

For example, I REPORT OF THE INTERNATIONAL COMMITTEE OF THE RED CROSS ON ITS ACTIVITIES DURING THE
SECOND WORLD WAR (SEPTEMBER 1, 1939 – JUNE 30, 1947) 342 (1948) (“On receiving a complaint [from POWs],
the ICRC sought the most appropriate means in its power to put right the matter complained of, first verifying as far
as possible the genuine foundation of the grievance. … The Committee was more concerned with finding some
practical remedy for the deficiencies complained of than with bringing them to the notice of the PW’s own country,
as there was always a possible risk of provoking reprisals. In some cases, it made immediate representations,
usually to the person or officials of the Detaining Power directly concerned, but sometimes also to higher authority.
In other cases it instructed its delegates to take appropriate steps on the spot to bring about an improvement. These
constant daily efforts, though often never heard of, are probably among the most useful services that the Committee
was able to render to PW.”).
528

GPW art. 78 (“These requests and complaints shall not be limited nor considered to be a part of thecorrespondence quota referred to in Article 71.”). Refer to § 9.20.2 (POW Correspondence Rights and Quota).
529

GPW art. 78 (“They must be transmitted immediately.”).

530

GPW COMMENTARY 384 (“The problem is to reconcile the Detaining Power’s own security requirements with
the need to ensure that the right of complaint can be effectively exercised. For reasons of security, the Detaining
Power must obviously make sure that prisoners of war do not use it as a means of communication with the outside
world. The Conference of Government Experts therefore rejected the suggestion that the words ‘without
amendment’ should be added to the obligation to transmit complaints. Such an addition would have resulted indoing away with censorship, and the Detaining Power could not agree to that. The authors of the Convention
considered, however, that matters concerning only the ‘conditions of captivity’ could be mentioned without
restriction, and the wording adopted seemed best suited to take into account both the interests of the prisoners of war
and the Detaining Power’s own security requirements.”).

604

correspondence. 531
9.23.2.2 No Punishment for Making Complaints. Even if the complaints arerecognized to be unfounded, they may not give rise to any punishment. 532 This rule departs fromthe usual practice in armed forces, in which excessive use of the right of complaint within aState’s armed forces may be punished. 533 The GPW provision against punishment for unfounded
complaints arose after POWs were tortured for complaining to the representatives of theProtecting Power. 534 In any event, it could be contrary to POWs’ interests to abuse this right bymaking groundless complaints because complaints that are justified might not, as a result,receive the appropriate attention. 535
9.23.3 Periodic Reports by the POW Representatives. POW Representatives may send
periodic reports on the situation in the camps and the needs of the POWs to the representatives of
the Protecting Powers. 536 POW Representatives have discretion about how and when to submit
their reports. 537 The Detaining Power may subject these reports to security review andcensorship to ensure that these reports are not misused. 538
9.24 POW REPRESENTATIVESThe GPW contemplates that certain POWs will serve as representatives of the POWs
before the Detaining Power, the Protecting Power, and other entities. These persons have certain
prerogatives that enable them to carry out their duties to further the well-being of the POWs.
In the GPW, these persons are called “prisoners’ representatives.” This manual refers tothem as POW Representatives.

531

Refer to § 9.20.6 (Censorship and Security Review of POW Correspondence and Shipments).

532

GPW art. 78 (“Even if they are recognized to be unfounded, they may not give rise to any punishment.”).

533

GPW COMMENTARY 386 (“Lastly, the present paragraph establishes the impunity of prisoners of war in regard to
any unfounded complaints or requests. Here the Convention departs from the regulations applied in national armed
forces, which usually punish any excessive use of the right of complaint as being an attack on authority and an act ofindiscipline.”).

534

United States, et al. v. Araki, et al., Majority Judgment, International Military Tribunal for the Far East, 49,757,
reprinted in NEIL BOISTER & ROBERT CRYER, DOCUMENTS ON THE TOKYO INTERNATIONAL MILITARY TRIBUNAL:
CHARTER, INDICTMENT AND JUDGMENTS 592 (2008) (“After a visit to the prisoner of war camp at Motoyama inJapan in the spring of 1943, the senior prisoner at the camp, who had dared to complain of the working conditions towhich the prisoners had been subjected, was tortured. He was forced to kneel for five hours before a Japaneseguard. The next time this camp was visited, this senior prisoner was placed in confinement and was not allowed to
speak to the representative although that representative demanded to interview him.”).
535

GPW COMMENTARY 386 (“It is to be hoped that prisoners of war will realize that in their own interest theyshould make judicious use of the right of complaint and request, and refrain from making complaints which theyknow to be groundless so that those which are justified can receive the attention they deserve.”).

536

GPW art. 78 (“Prisoners’ representatives may send periodic reports on the situation in the camps and the needs ofthe prisoners of war to the representatives of the Protecting Powers.”).
537

Compare § 10.21.3 (Periodic Reports by the Internee Committees).

538

Refer to § 9.20.6 (Censorship and Security Review of POW Correspondence and Shipments).

605

9.24.1 General Qualifications of the POW Representative. In all cases, the POW
Representative must have the same nationality, language, and customs as the POWs whom he or
she represents. 539 Thus, POWs distributed in different sections of a camp, according to theirnationality, language, or customs, shall have for each section their own POW Representative. 540
In practice, it is advisable for the POW Representative to be a POW as opposed to aretained person. Medical personnel have their own representative for issues related to theiractivities. 541 In addition, the duties of the POW Representative and the duties of retained
personnel could interfere with one another, and special provision is made in the GPW to ensurethat other duties not interfere with the duties of retained personnel or the duties of the POW
Representative. 542
9.24.2 Procedure for Selecting POW Representatives, Advisers, and Assistants. The
procedure for selecting POW Representatives, and their advisers (POWs who are officers) andassistants (POWs who are not officers), depends on the rank of the POWs in the camp.
9.24.2.1 Camps With Officer POWs. In camps for officers and persons ofequivalent status or in mixed camps, the senior officer among the POWs shall be recognized as
the camp POW Representative. 543 A mixed camp refers to camps composed of both officers andother ranks. 544
The senior officer is the officer of highest rank, not the oldest officer. 545 The senior
officer is also a member of the armed forces, as opposed to a person of equivalent status (e.g.,such as a person authorized to accompany the armed forces who is of senior status). 546
In camps for officers, the POW Representative shall be assisted by one or more adviserschosen by the officers. 547 These advisers may assist the POW Representative if his or her health539

GPW art. 79 (“In all cases the prisoners’ representative must have the same nationality, language and customs as
the prisoners of war whom he represents.”).
540

GPW art. 79 (“Thus, prisoners of war distributed in different sections of a camp, according to their nationality,
language or customs, shall have for each section their own prisoners’ representative, in accordance with theforegoing paragraphs.”).
541

Refer to § 7.9.5.7 (Senior Medical Officer in the Camp).

542

Refer to § 7.9.5.6 (No Other Compulsory Duties); § 9.24.4.1 (Limitations on Other Work Assignments).

543

GPW art. 79 (“In camps for officers and persons of equivalent status or in mixed camps, the senior officer among
the prisoners of war shall be recognized as the camp prisoners' representative.”).
544

See GPW COMMENTARY 393 (“As may be seen from the record of the discussions at the Diplomatic Conference,the expression [“mixed camp”] refers to camps comprising both officers and other ranks.”).
545

See GPW COMMENTARY 392 (“In camps for officers, the prisoners’ representative is appointed according toseniority and not by election. The term ‘the senior officer’ (in French, ‘le plus ancien dans le grade le plus élevé’)has sometimes been taken as meaning the oldest officer with the highest rank. If the words are to have a precise
meaning, however, as they must have, it should be what the English text says, viz. the senior officer of the highest
rank. Age will only be the determining factor where two officers of the same rank were promoted on the samedate.”).
546

Refer to § 4.15 (Persons Authorized to Accompany the Armed Forces).

547

GPW art. 79 (“In camps for officers, he shall be assisted by one or more advisers chosen by the officers;”).

606

makes it difficult to carry out the duties of the POW Representative and also may assist the POW
Representative in gauging the wishes of other POWs. 548
In mixed camps, the POW Representative’s assistants shall be chosen from among the
POWs who are not officers and shall be elected by them. 549
9.24.2.2 Labor Camps With Officers Who Carry Out Camp Administration Duties
for POWs. Officer POWs of the same nationality shall be stationed in labor camps for POWs,
for the purpose of carrying out the camp administration duties for which the POWs are
responsible. 550 These officers may be elected as POW Representatives under the first paragraphof Article 79 of the GPW. 551 In such a case, the assistants to the POW Representatives shall bechosen from among those POWs who are not officers. 552
9.24.2.3 Places Without Officer POWs. In all places where there are POWs,
except in those where there are officers, the POWs shall freely elect POW Representatives bysecret ballot, every six months, and also in case of vacancies. 553 These POW Representatives
shall be eligible for re-election. 554
9.24.2.4 Approval of Elected POW Representatives by the Detaining Power.
Every elected POW Representative must be approved by the Detaining Power before he or she
548

See GPW COMMENTARY 392 (“Thus it is clearly established that, like other prisoners of war, officers have aprisoners’ representative. Serious difficulties may result, however, from the fact that he is appointed according torank, particularly if his state of health makes it difficult for him to carry out the wide range of tasks incumbent on
the prisoners’ representative. The 1949 text therefore provides a possibility which did not exist in Article 43 of the1929 Convention: the officer who is the prisoners’ representative will be ‘assisted’ by one or more advisers chosen
by the prisoners themselves. The intention of the authors of this new provision was that such assistants should be
able to help the senior officer of the highest rank by expressing the wishes and opinions of all the prisoners.”).
549

GPW art. 79 (“[I]n mixed camps, his assistants shall be chosen from among the prisoners of war who are notofficers and shall be elected by them.”).
550

GPW art. 79 (“Officer prisoners of war of the same nationality shall be stationed in labour camps for prisoners ofwar, for the purpose of carrying out the camp administration duties for which the prisoners of war are responsible.”).

551

GPW art. 79 (“These officers may be elected as prisoners’ representatives under the first paragraph of this
Article.”). See also LEVIE, POWS 298 (“[E]ven though the labor detachment will, to a certain extent, be a ‘mixed’
camp, the senior officer detailed to it to perform the administrative details will not automatically be the prisoners’
representative, but he will be eligible for election to that office.”).
552

GPW art. 79 (“In such a case the assistants to the prisoners’ representatives shall be chosen from among thoseprisoners of war who are not officers.”).
553

GPW art. 79 (“In all places where there are prisoners of war, except in those where there are officers, theprisoners shall freely elect by secret ballot, every six months, and also in case of vacancies, prisoners'
representatives entrusted with representing them before the military authorities, the Protecting Powers, theInternational Committee of the Red Cross and any other organization which may assist them.”). See also GPWCOMMENTARY 390 (“In view of the general wording of the phrase ‘in all places where there are prisoners of war’,
there is no need to wait until they are actually in a camp. If circumstances permit, prisoners of war will be able toappoint a prisoners' representative in transit camps. The general wording of the provision therefore enables
prisoners’ representatives to be elected not only in the main camps which are usually situated on the outskirts ofbuilt-up areas, but also in labour detachments.”).
554

GPW art. 79 (“These prisoners’ representatives shall be eligible for re-election.”).

607

has the right to commence his or her duties. 555 Where the Detaining Power refuses to approve a
POW elected by fellow POWs, it must inform the Protecting Power of the reason for such
refusal. 556
9.24.3 Duties of POW Representatives. The POW Representatives are entrusted withrepresenting the POWs before the military authorities, the Protecting Powers, the ICRC, and anyother organization that may assist them. 557 POW Representatives shall further the physical,
spiritual, and intellectual well-being of POWs. 558
The POW Representative’s general duties imply that the POW Representatives will
undertake a variety of activities to ensure that POWs receive proper treatment by the Detaining
Power and to advance their welfare, even activities that are not specified in the GPW as
constituting their duties.
9.24.3.1 POW Representatives and Mutual Assistance Among POWs. In
particular, where the POWs decide to organize among themselves a system of mutual assistance,
this organization will be within the province of the POW Representative, in addition to thespecial duties entrusted to him or her by other provisions of the GPW. 559
9.24.3.2 Other Specific Duties. In addition to the general duties that the GPW
imposes on the POW Representative, the GPW also imposes specific duties on POW
Representatives in three areas: (1) relief activities; (2) relations between the POWs and theauthorities; and (3) verification that the guarantees provided under GPW are respected. 560
The POW Representative’s duties in relation to relief activities include:•

assisting in the transport of the POWs’ community property and luggage in cases oftransfers of POWs; 561

555

GPW art. 79 (“Every representative elected must be approved by the Detaining Power before he has the right tocommence his duties.”).
556
GPW art. 79 (“Where the Detaining Power refuses to approve a prisoner of war elected by his fellow prisonersof war, it must inform the Protecting Power of the reason for such refusal.”).
557

GPW art. 80 (“In all places where there are prisoners of war, except in those where there are officers, theprisoners shall freely elect by secret ballot, every six months, and also in case of vacancies, prisoners’
representatives entrusted with representing them before the military authorities, the Protecting Powers, theInternational Committee of the Red Cross and any other organization which may assist them.”).
558

GPW art. 80 (“Prisoners’ representatives shall further the physical, spiritual and intellectual wellbeing ofprisoners of war.”).
559

GPW art. 80 (“In particular, where the prisoners decide to organize amongst themselves a system of mutual
assistance, this organization will be within the province of the prisoners' representative, in addition to the special
duties entrusted to him by other provisions of the present Convention.”).
560

See GPW COMMENTARY 397 (“The role of prisoners’ representatives falls under three main headings: relief
activities, relations with prisoners of war and the authorities, verification that the guarantees provided under theConvention are being respected.”).
561

Refer to § 9.29.3.4 (Disposition of Community Property and Remaining Property).

608

•

managing the distribution of collective relief; 562•

receiving parcels and remittances of money for POWs undergoing disciplinary
punishment, and handing over to the infirmary any perishable goods; 563 and•signing receipts for relief supplies or materials to the relief society or organization
making the shipment. 564

The POW Representative’s duties in facilitating relations between the POWs and theauthorities include:•

remaining in communication with POWs who work for private employers; 565•transmitting requests and complaints, and sending periodic reports on the needs ofPOWs; 566 and•interviewing with delegates of the Protecting Powers. 567

The POW Representative’s duties in verifying that the guarantees provided under GPW
are respected include:•

collaborating in the management of the canteen and its special fund; 568•

receiving copies of regulations, orders, notices, and publications relating to the conduct
of POWs issued by the Detaining Power for communication to POWs; 569•

countersigning for entries entered in a POW’s account on his or her behalf, or for
notifications of payments sent by POWs to their own country; 570•

monitoring decisions announced from any disciplinary proceeding against a POW; 571•

receiving notifications of judicial proceedings instituted against POWs, and of any

562

Refer to § 9.20.3.4 (Collective Relief for POWs).

563

Refer to § 9.27.6.6 (Reading, Writing, Correspondence, and Packages).

564

Refer to § 9.33.2.2 (Receipts for Relief Consignments).

565

Refer to § 9.19.8 (POWs Working for Private Persons).

566

Refer to § 9.23 (POW Requests, Complaints).

567

Refer to § 9.33.1 (Access by Protecting Powers).

568

Refer to § 9.17.3 (Camp Canteen Management and Profits).

569

Refer to § 9.22.5 (Posting of Convention and Camp Orders).

570

Refer to § 9.18 (Financial Resources of POWs).

571

Refer to § 9.27.3 (Rights of POWs in Disciplinary Proceedings).

609

judgment or sentences pronounced upon them; 572 and•proposing repatriation for certain POWs and participating in Mixed Medical
Commissions. 573

9.24.4 Prerogatives of POW Representatives. In order to accomplish their duties, POW
Representatives are afforded certain prerogatives.
9.24.4.1 Limitations on Other Work Assignments. POW Representatives shall not
be required to perform any other work, if the accomplishment of their duties is thereby mademore difficult. 574 Officers, in any event, may not be required to work. 575
9.24.4.2 Assistants for the POW Representatives. In addition to the advisers andassistants for the POW Representatives that are provided for in camps with officers, POW
Representatives may appoint from among the POWs such assistants as they may require. 576
Assistants, like the POW Representative, should be exempted from any other work to the extent
that the accomplishment of their duties would thereby be made more difficult. 577
9.24.4.3 Material Facilities, Including Certain Freedom of Movement. All
material facilities shall be granted to POW Representatives, particularly a certain freedom of
movement necessary for the accomplishment of their duties (inspection of labor detachments,
receipt of supplies, etc.). 578 This freedom of movement does not mean complete freedom. 579
9.24.4.4 Visiting Premises Where POWs Are Detained and Consultation With
POWs. POW Representatives shall be permitted to visit premises where POWs are detained, andevery POW shall have the right to consult freely with his or her POW Representative. 580 The
572

Refer to § 9.28.3.1 (Notification of Proceedings); § 9.28.4.6 (Notification of Trial Outcome).

573

Refer to § 9.36.5 (Mixed Medical Commissions).

574

GPW art. 81 (“Prisoners’ representatives shall not be required to perform any other work, if the accomplishmentof their duties is thereby made more difficult.”).
575

Refer to § 9.19.1.2 (Labor Assignment – Officers and Persons of Equivalent Status).

576

GPW art. 81 (“Prisoners’ representatives may appoint from amongst the prisoners such assistants as they may
require.”). See also GPW COMMENTARY 401 (Assistants “will be interpreters, legal advisers, secretaries, assistants
competent in matters of storage and handling.”).
577

See GPW COMMENTARY 401 (All assistants “like the prisoners' representative himself, will be exempted fromany other work to the extent that the accomplishment of their duties would ‘thereby be made more difficult’.”).
578

GPW art. 81 (“All material facilities shall be granted them, particularly a certain freedom of movement necessary
for the accomplishment of their duties (inspection of labour detachments, receipt of supplies, etc.).”).
579

See GPW COMMENTARY 402 (The authors of GPW “did not think fit to grant ‘complete freedom’, but only ‘acertain freedom.’ This freedom must be granted whenever ‘necessary’. Two cases are expressly mentioned:
inspection of labour detachments and receipt of relief supplies.”). For example, GPW COMMENTARY 402 (“During
the Second World War, prisoners’ representatives were released on parole by some Detaining Powers in order toenable them to travel from one camp to another.”).
580

GPW art. 81 (“Prisoners’ representatives shall be permitted to visit premises where prisoners of war are detained,
and every prisoner of war shall have the right to consult freely his prisoners’ representative.”).

610

premises that may be visited will include the kitchen, infirmary, and other annexes to the POW
Camp. 581
9.24.4.5 Working Pay of POW Representatives, Advisers, and Assistants. The
working pay of POW Representatives, advisers, if any, and assistants, shall be paid out of thefund maintained by canteen profits. 582 The scale of this working pay shall be fixed by the POW
Representative and approved by the camp commander. 583 If there is no such fund, the detaining
authorities shall pay these POWs a fair working rate of pay. 584
9.24.4.6 Facilities for Communication. All facilities shall likewise be accorded to
POW Representatives for communication by post and telegraph with the detaining authorities,
the Protecting Powers, the ICRC and their delegates, the Mixed Medical Commissions, and thebodies that give assistance to POWs. 585
POW Representatives of labor detachments shall enjoy the same facilities forcommunication with the POW Representatives of the principal camp. 586 Such communications
shall not be restricted, nor considered as forming a part of the quota mentioned in Article 71 of
the GPW. 587
The facilities to be granted do not, however, include freedom from censorship, butcorrespondence may not be withheld. 588
9.24.4.7 No Responsibility for Offenses Committed by POWs by Reason of Their
Duties. POW Representatives shall not be held responsible, simply by reason of their duties, for581

GPW COMMENTARY 403 (“The premises which may be visited will include the kitchen, infirmary and otherannexes.”).

582

GPW art. 62 (“The working pay of the prisoners’ representative, of his advisers, if any, and of his assistants, shallbe paid out of the fund maintained by canteen profits.”). Refer to § 9.17.3.1 (Use of Canteen Profits for Working
Pay of the POW Representative).
583
GPW art. 62 (“The scale of this working pay shall be fixed by the prisoners’ representative and approved by thecamp commander.”).
584

GPW art. 62 (“If there is no such fund, the detaining authorities shall pay these prisoners a fair working rate ofpay.”).
585

GPW art. 81 (“All facilities shall likewise be accorded to the prisoners' representatives for communication by
post and telegraph with the detaining authorities, the Protecting Powers, the International Committee of the Red
Cross and their delegates, the Mixed Medical Commissions and the bodies which give assistance to prisoners ofwar.”).
586

GPW art. 81 (“Prisoners’ representatives of labour detachments shall enjoy the same facilities for communication
with the prisoners' representatives of the principal camp.”).
587

GPW art. 81 (“Such communications shall not be restricted, nor considered as forming a part of the quota
mentioned in Article 71.”). Refer to § 9.20.2 (POW Correspondence Rights and Quota).
588
GPW COMMENTARY 404 (“The facilities to be granted do not, however, include freedom from censorship, butcorrespondence may not be withheld. If circumstances so demand, a special censorship service must therefore be
instituted or, at least, the correspondence of prisoners’ representatives must be given priority.”).

611

any offenses committed by POWs. 589 For example, POW Representatives may not be held
responsible for escape attempts by other POWs, unless they personally participated in suchactivities. 590
9.24.4.8 Turnover for Successor POW Representatives Upon Transfer. POW
Representatives who are transferred shall be allowed a reasonable time to acquaint theirsuccessors with current affairs. 591
9.24.5 Dismissal of POW Representative. In case of dismissal, the reason for thedismissal shall be communicated to the Protecting Power. 592
The GPW does not provide a procedure for POWs to dismiss POW Representatives aside
from not re-electing them. 593 However, the Detaining Power may withdraw its approval of a
POW Representative and request that POWs hold new elections. 594
9.25 POW ESCAPES
POWs who escape successfully are not liable to any punishment in respect of theirprevious escape. A number of rules limit the punishment of POWs who do not escapesuccessfully. Notifications of POW escape and recapture should also be made. POWs punished
as a result of an unsuccessful escape may be subjected to special surveillance.
9.25.1 No Punishment for Successful Escape. POWs who have made good their escapein the sense of Article 91 of the GPW, and who are recaptured, shall not be liable to any

589

GPW art. 80 (“Prisoners’ representatives shall not be held responsible, simply by reason of their duties, for any
offences committed by prisoners of war.”).
590

See LEVIE, POWS 304 (“This is particularly relevant with respect to incidents such as the construction of a tunnel
to be used for the purpose of escape. The military authorities of the Detaining Power will probably assume, andwith some justification, that this could not have occurred unknown to the prisoners’ representative--but whether heknew of it or not, he is not to be held responsible if he did not personally participate in it.”).
591

GPW art. 81 (“Prisoners’ representatives who are transferred shall be allowed a reasonable time to acquaint theirsuccessors with current affairs.”).
592

GPW art. 81 (“In case of dismissal, the reasons therefore shall be communicated to the Protecting Power.”).

593

See GPW COMMENTARY 405 (GPW “Article 79, paragraph 1, enables [POWs] to show disapproval by not reelecting the prisoners' representative, since elections must be held every six months. The Convention provides noprocedure, however, for a case where prisoners of war have grounds to demand that their representative should
resign immediately; it makes provision only for dismissal of a prisoners' representative by the Detaining Power.”).

594

See GPW COMMENTARY 405 (“One solution would be for the prisoners of war to submit a request to the military
authorities for recognition to be withdrawn from the prisoners' representative. If the Detaining Power is satisfied
that that is the wish of the majority of prisoners, it may arrange for fresh elections to be held, and the results thereof
will justify or not, as the case may be, the request made by the prisoners of war. The Detaining Power may at any
time withdraw its approval and request prisoners of war to hold new elections. It must advise the Protecting Powerof the actual reasons for its decision and may not merely state that there is no longer mutual confidence between theprisoners' representative and its own representatives.”).

612

punishment in respect of their previous escape. 595
In this way, POWs who have escaped successfully are treated similarly to persons who
have engaged in espionage and returned safely to friendly lines. 596 Escaping POWs must not killor wound the enemy by resort to perfidy. 597
9.25.1.1 Types of Successful Escapes. Under Article 91 of the GPW, the escapeof a POW shall be deemed to have succeeded when the POW has:•joined the armed forces of the Power on which he or she depends, or those of an alliedPower;•

left the territory under the control of the Detaining Power, or of an ally of the Detaining
Power; or•joined a ship flying the flag of the Power on which he or she depends, or of an alliedPower, in the territorial waters of the Detaining Power, this ship not being under thecontrol of the Detaining Power. 598

The general principle is that the POW must have actually gone beyond the reach of the
Detaining Power. 599 Thus, for example, a POW who escapes from the territory of the Detaining
Power to the territory of one of the Detaining Power’s allies will not be deemed to have escaped
successfully. On the other hand, if the POW reaches neutral territory or the high seas, he or she
will have escaped successfully. 600
The situation of POWs who have successfully escaped into neutral territory is addressed
under the law of neutrality. 601

595

GPW art. 91 (“Prisoners of war who have made good their escape in the sense of this Article and who arerecaptured, shall not be liable to any punishment in respect of their previous escape.”).

596

Refer to § 4.17.5.1 (Liability of Persons Not Captured While Spying for Previous Acts of Espionage).

597

Refer to § 5.22 (Treachery or Perfidy Used to Kill or Wound).

598

GPW art. 91 (“The escape of a prisoner of war shall be deemed to have succeeded when: (1) he has joined thearmed forces of the Power on which he depends, or those of an allied Power; (2) he has left the territory under thecontrol of the Detaining Power, or of an ally of the said Power; (3) he has joined a ship flying the flag of the Poweron 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.”).
599

GPW COMMENTARY 446 (“As Scheidl has pointed out, it is not sufficient for a prisoner attempting to escape tothrow off immediate pursuit and hide among the population of the territory; he must actually succeed in escaping
beyond the reach of the Detaining Power.”).

600

See 1958 UK MANUAL ¶238 note 3 (“The effect of Art. 91 [of the GPW] is that the escape is to be consideredsuccessful not only if the prisoner rejoins the armed forces of the State with which he was previously serving, or
those of its allies, but also if he has left the territory of or occupied by the Detaining Power, e.g., by reaching neutral
territory. If he were picked up by a ship of the Detaining Power outside its territorial waters it would seem that hewould not be liable to disciplinary punishment having already made a successful escape by leaving its territory.”).
601

Refer to § 15.17.1 (Escaped POWs Received by a Neutral State).

613

9.25.2 Unsuccessful Escapes. POWs who do not escape successfully retain theirentitlement to POW status upon recapture. In particular, the wearing of civilian clothes does notdeny escaping POWs their status as POWs. 602
A number of rules limit the punishment of POWs who do not escape successfully. By
limiting the punishment in respect of the act of escape, the GPW recognizes that POWs may
legitimately try to escape from their captors. 603 In some cases, POWs may even be under anobligation to escape. 604 For example, U.S. military personnel have a duty to make every effort toescape captivity. 605
9.25.2.1 Handover of a Recaptured POW to Competent Military Authority. A
POW who is recaptured shall be handed over without delay to the competent military
authority. 606 For example, if recaptured by private persons or by civilian law enforcement
authorities, POWs should be handed over to competent military authority without delay. This
rule makes certain practices used by Germany during World War II clearly unlawful. 607
9.25.2.2 Only Disciplinary Punishments in Respect of an Act of Escape. A POW
who attempts to escape and is recaptured before having made good his or her escape in the senseof Article 91 of the GPW shall be liable only to a disciplinary punishment in respect of this act,

602

GPW COMMENTARY 454 (“Additional difficulties have sometimes arisen from the wearing of civilian clothing;during the Second World War, some Detaining Powers stated their intention of considering prisoners of war incivilian clothing as spies and no longer as prisoners of war. This matter is settled by the present provision: aprisoner of war retains that legal status until such time as he has made good his escape.”).

603

GPW COMMENTARY 445 (“A prisoner of war can legitimately try to escape from his captors. It is evenconsidered by some that prisoners of war have a moral obligation to try to escape, and in most cases such attempts
are of course motivated by patriotism. Conversely, in its own interest, the Detaining Power will endeavour toprevent escape whenever possible. This results in the paradox of escape to which A. R. Werner refers: an attempt
to escape is considered by the Detaining Power as a breach of discipline and therefore punishable, while the adverse
Party considers it as an act which cannot be held to be a crime. Attempted escape is therefore liable only to
disciplinary punishment, and not to judicial proceedings.”).

604

Rex v. Guenther Krebs (Magistrate’s Court of the County of Renfrew, Ontario, Oct. 7, 1943), reprinted in 38
AJIL, 505, 507-08 (1944) (“This accused owes no allegiance to the Crown. He is an open and avowed enemy of the
Crown, a man taken in war and a man who, if it is not his duty, may quite reasonably feel that it is his duty to escapefrom the domains of his captor state, and, if he can, return to the state to which he owes allegiance and perform his
duty to that state. Whatever may be finally decided in this matter, my opinion is that a prisoner of war is notpunishable for anything he may reasonably do to escape, or having escaped, to preserve his liberty. My opinion also
is that what the accused did was done with a view to facilitating his escape. He, therefore is not guilty of any
crime.”).

605

Refer to § 9.39.1.3 (Code of Conduct – Article III).

606

GPW art. 92 (“A prisoner of war who is recaptured shall be handed over without delay to the competent military
authority.”).
607

1958 UK MANUAL ¶240 note 1 (“One of the purposes of these articles [of the GPW] is to render clearly unlawful
the practice resorted to by Germany during the Second World War of handing over recaptured prisoners of war tonon-military agencies such as the German Gestapo or the concentration camp service.”).

614

even if it is a repeated offense. 608
9.25.2.3 Disciplinary Punishment for Certain Offenses Committed in Connection
With Escape. In conformity with the principle stated in Article 83 of the GPW (i.e., leniency infavor of disciplinary rather than judicial proceedings), offenses committed by POWs with thesole intention of facilitating their escape and that do not entail any violence against life or limb,
such as offenses against public property, theft without intention of self-enrichment, the drawing
up or use of false papers, or the wearing of civilian clothing, shall occasion disciplinary
punishment only. 609
For example, if a POW steals food, money, or means of transport; wears civilian
clothing; or fabricates false documents in order to facilitate his or her escape and is caught before
escaping successfully, such acts may only incur disciplinary punishment.
9.25.2.4 Escape Not an Aggravating Circumstance in Respect of a Judicial
Offense Committed During Escape. Escape or attempt to escape, even if it is a repeated offense,shall not be deemed an aggravating circumstance if the POW is subjected to trial by judicial
proceedings in respect of an offense committed during his or her escape or attempt to escape. 610
For example, an escaping POW who kills or injures a Detaining Power guard whileescaping could be liable to judicial punishment for that offense. However, the circumstance of
escape shall not be deemed to aggravate the sentence of the POW, even if the POW is one who
frequently attempts to escape.
9.25.3 Liability of POWs for Other POWs’ Escape or Attempts to Escape. POWs who
aid or abet an escape or an attempt to escape are liable on this count to disciplinary punishment
only. 611
Collective punishment of POWs for an escape attempt by other POWs is also

608

GPW art. 92 (“A prisoner of war who attempts to escape and is recaptured before having made good his escape inthe sense of Article 91 shall be liable only to a disciplinary punishment in respect of this act, even if it is a repeated
offence.”).
609

GPW art. 93 (“In conformity with the principle stated in Article 83, offences committed by prisoners of war withthe sole intention of facilitating their escape and which do not entail any violence against life or limb, such as
offences against public property, theft without intention of self-enrichment, the drawing up or use of false papers, orthe wearing of civilian clothing, shall occasion disciplinary punishment only.”).
610

GPW art. 93 (“Escape or attempt to escape, even if it is a repeated offence, shall not be deemed an aggravating
circumstance if the prisoner of war is subjected to trial by judicial proceedings in respect of an offence committed
during his escape or attempt to escape.”).
611

GPW art. 93 (“Prisoners of war who aid or abet an escape or an attempt to escape shall be liable on this count todisciplinary punishment only.”). See also GPW COMMENTARY 455 (“At the 1929 Conference, some delegations
maintained that accomplices should be exempt from any punishment, even disciplinary. This proposal was rightly
rejected. Furthermore, the punishment of accomplices is consistent with the principles of penal law. Escape is anoffence against the Detaining Power. The privilege of impunity which is granted to a prisoner of war who commits
this offence is based solely on the fact that captivity is interrupted and this is not so in the case of accomplices.”).

615

prohibited. 612
9.25.4 Special Surveillance of POWs as a Result of Unsuccessful Escape. Despite
Article 88 of the GPW, which articulates the principle that POWs who have served disciplinary
or judicial sentences may not be treated differently from other POWs, 613 POWs punished as aresult of an unsuccessful escape may be subjected to special surveillance. 614 Such surveillance:(1) must not affect the state of their health; (2) must be undergone in a POW camp; and (3) must
not entail the suppression of any of the safeguards granted to them by the GPW. 615
9.25.5 Notification of Escape and Recapture. If a POW escapes, the State on which thePOW depends should be notified by the Detaining Power’s National POW Information Bureau
through the intermediary of the Protecting Powers and Central Tracing Agency. 616
If an escaped POW is recaptured, the Power on which the POW depends shall be notifiedof the recapture in the manner prescribed in Article 122 of the GPW (i.e., by the Detaining
Power’s National POW Information Bureau through the intermediary of the Protecting Powers
and Central Tracing Agency), provided notification of the POW’s escape has been made. 617
9.26 GENERAL PRINCIPLES APPLICABLE TO POW DISCIPLINE
In the GPW, the rules on POW discipline are provided under three sub-headings:•

General principles applicable at all times. 618•“Disciplinary measures,” which means punishment by the commander of the POW camp,
and is equivalent to summary disposal by a commanding officer. 619•“Judicial proceedings,” which means trial and punishment by a court having jurisdiction
to try POWs, and is equivalent to trial by court-martial. 620

This section addresses the general principles applicable to both disciplinary and judicial
proceedings against POWs.
612

Refer to § 9.26.6 (Prohibited Penalties).

613

Refer to § 9.26.7 (Treatment of POWs Undergoing Punishment).

614

GPW art. 92 (“Article 88, fourth paragraph, notwithstanding, prisoners of war punished as a result of an
unsuccessful escape may be subjected to special surveillance.”).
615

GPW art. 92 (“Such surveillance must not affect the state of their health, must be undergone in a prisoner of war
camp, and must not entail the suppression of any of the safeguards granted them by the present Convention.”).
616

Refer to § 9.31.1 (Accountability Information That the Detaining Power Should Collect).

617

GPW art. 94 (“If an escaped prisoner of war is recaptured, the Power on which he depends shall be notified
thereof in the manner defined in Article 122, provided notification of his escape has been made.”).
618

GPW arts. 82-88.

619

GPW arts. 89-98. Refer to § 9.27 (Disciplinary Proceedings and Punishment).

620

GPW arts. 99-108. Refer to § 9.28 (Judicial Proceedings and Punishment).

616

9.26.1 POWs Subject to the Laws, Regulations, and Orders in Force in the Armed Forcesof the Detaining Power. A POW shall be subject to the laws, regulations, and orders in force inthe armed forces of the Detaining Power; the Detaining Power shall be justified in taking judicial
or disciplinary measures in respect of any offense committed by a POW against such laws,
regulations, or orders. 621 For example, POWs in custody of the U.S. armed forces are subject tothe Uniform Code of Military Justice. 622 However, no proceedings or punishments contrary to
the provisions of Chapter III of the GPW shall be allowed. 623
POWs also remain subject to the laws of the State to which they claim allegiance, andmay be prosecuted by that State following release and repatriation for misconduct committed
during their captivity. 624
9.26.2 Leniency in Favor of Disciplinary Rather Than Judicial Proceedings. In deciding
whether proceedings in respect of an offense alleged to have been committed by a POW shall be
judicial or disciplinary, the Detaining Power shall ensure that the competent authorities exercise
the greatest leniency and adopt, wherever possible, disciplinary rather than judicial measures. 625
This requirement does not compel the competent authorities to choose disciplinary overjudicial proceedings in any particular case.
9.26.3 Trial by Military Courts. A POW shall be tried only by a military court, unless theexisting laws of the Detaining Power expressly permit the civil courts to try a member of thearmed forces of the Detaining Power in respect of the particular offense alleged to have beencommitted by the POW. 626
In no circumstances whatever shall a POW be tried by a court of any kind that does notoffer the essential guarantees of independence and impartiality as generally recognized and, inparticular, the procedure of which does not afford the accused the rights and means of defense
provided for in Article 105 of the GPW. 627

621

GPW art. 82 (“A prisoner of war shall be subject to the laws, regulations and orders in force in the armed forcesof the Detaining Power; the Detaining Power shall be justified in taking judicial or disciplinary measures in respectof any offence committed by a prisoner of war against such laws, regulations or orders.”).
622

10 U.S.C. § 802 (“(a) The following persons are subject to this chapter [47 – Uniform Code of Military Justice]:… (9) Prisoners of war in custody of the armed forces.”).
623

GPW art. 82 (“However, no proceedings or punishments contrary to the provisions of this Chapter shall beallowed.”).
624

Refer to § 9.22.2 (POWs’ Status With Respect to Their Armed Forces).

625

GPW art. 83 (“In deciding whether proceedings in respect of an offence alleged to have been committed by aprisoner of war shall be judicial or disciplinary, the Detaining Power shall ensure that the competent authorities
exercise the greatest leniency and adopt, wherever possible, disciplinary rather than judicial measures.”).
626

GPW art. 84 (“A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining
Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of theparticular offence alleged to have been committed by the prisoner of war.”).
627

GPW art. 84 (“In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does
not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the617

9.26.4 Retention of Benefits of the GPW Even if Prosecuted for Pre-Capture Acts.
POWs prosecuted under the laws of the Detaining Power for acts committed prior to capture
shall retain, even if convicted, the benefits of the GPW. 628 For example, POWs prosecuted forpre-capture acts are entitled to the fair trial protections provided by the GPW. 629 POWs’ fairtrial protections could not be ensured if the mere allegation of a war crime could deny them
POW status. 630
9.26.5 Repetition of Punishment. No POW may be punished more than once for thesame act, or on the same charge. 631
9.26.6 Prohibited Penalties. POWs may not be sentenced by the military authorities andcourts of the Detaining Power to any penalties except those provided for in respect of membersof the armed forces of the Detaining Power who have committed the same acts. 632 The
following punishments are expressly prohibited:•collective punishments for individual acts; 633•

corporal punishment;•

imprisonment in premises without daylight;•

any form of torture or cruelty; and•deprivation of rank or of the right to wear badges. 634

procedure of which does not afford the accused the rights and means of defence provided for in Article 105.”).
Refer to § 9.28.4 (Rights of Defense and Trial Procedure).
628

GPW art. 85 (“Prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior tocapture shall retain, even if convicted, the benefits of the present Convention.”).
629

Refer to § 9.28.4 (Rights of Defense and Trial Procedure).

630

George Aldrich, Assistant Legal Adviser for Far Eastern Affairs, Department of State, Entitlement of American
Military Personnel Held by North Viet-Nam to Treatment as Prisoners of War Under the Geneva Convention of1949 Relative to the Treatment of Prisoners of War, Jul. 13, 1966, X WHITEMAN’S DIGEST 231, 232-33 (§7) (“Nonation has reserved the right to nullify its obligations under the Convention by a simple declaration that it regards
members of the armed forces of an opposing party in an international conflict as war criminals. … While a numberof Communist parties to the Convention, including North Viet Nam, have indicated, by reservations, that they will
not comply with Article 85, these reservations (1) apply only to prisoners guilty of war crimes as opposed torecognized acts of warfare and (2) apply only after a prisoner has been tried in accordance with all the judicial
guarantees which the Convention provides, and only after conviction.”).
631

GPW art. 86 (“No prisoner of war may be punished more than once for the same act, or on the same charge.”).

632

GPW art. 87 (“Prisoners of war may not be sentenced by the military authorities and courts of the Detaining
Power to any penalties except those provided for in respect of members of the armed forces of the said Power who
have committed the same acts.”).
633

Refer to § 8.16.2.1 (Individual Penal Responsibility and No Collective Punishment).

634

GPW art. 87 (“Collective punishment for individual acts, corporal punishment, imprisonment in premises without
daylight and, in general, any form of torture or cruelty, are forbidden. No prisoner of war may be deprived of his
rank by the Detaining Power, or prevented from wearing his badges.”).

618

The courts and authorities of the Detaining Power, in reaching decisions on punishment,
must at all times remember that the accused:•

does not owe any allegiance to the Detaining Power and may be, for example, under aduty to escape; 635 and•is in its power through circumstances beyond his or her control so that, for example,
depression brought on by captivity should not be regarded as self-induced.

Courts and disciplinary authorities shall have the discretion to reduce the penalty below
the minimum prescribed for members of the armed forces of the Detaining Power. 636
9.26.7 Treatment of POWs Undergoing Punishment. Officers, non-commissioned
officers, and men and women who are POWs undergoing a disciplinary or judicial punishment,
shall not be subjected to more severe treatment than that applied in respect of the same
punishment to members of the armed forces of the Detaining Power of equivalent rank. 637
A woman POW shall not be awarded or sentenced to a punishment more severe, or
treated while undergoing punishment more severely, than either a female or male member of thearmed forces of the Detaining Power dealt with for a similar offense. 638
POWs who have served disciplinary or judicial sentences may not be treated differently
from other POWs. 639 However, POWs who have been punished as a result of an attempted
escape may nonetheless be subjected to special surveillance. 640
9.27 DISCIPLINARY PROCEEDINGS AND PUNISHMENT
In addition to the general principles applicable to POW punishment, the following rules
address disciplinary proceedings and punishment.
635

Refer to § 4.4.4.2 (Nationals of a State Who Join Enemy Forces).

636

GPW art. 87 (“When fixing the penalty, the courts or authorities of the Detaining Power shall take into
consideration, to the widest extent possible, the fact that the accused, not being a national of the Detaining Power, is
not bound to it by any duty of allegiance, and that he is in its power as the result of circumstances independent of his
own will. The said courts or authorities shall be at liberty to reduce the penalty provided for the violation of which
the prisoner of war is accused, and shall therefore not be bound to apply the minimum penalty prescribed.”).
637

GPW art. 88 (“Officers, non-commissioned officers and men who are prisoners of war undergoing a disciplinary
or judicial punishment, shall not be subjected to more severe treatment than that applied in respect of the same
punishment to members of the armed forces of the Detaining Power of equivalent rank.”).
638

GPW art. 88 (“A woman prisoner of war shall not be awarded or sentenced to a punishment more severe, or
treated whilst undergoing punishment more severely, than a woman member of the armed forces of the Detaining
Power dealt with for a similar offence.”); GPW art. 88 (“In no case may a woman prisoner of war be awarded orsentenced to a punishment more severe, or treated whilst undergoing punishment more severely, than a malemember of the armed forces of the Detaining Power dealt with for a similar offence.”).
639

GPW art. 88 (“Prisoners of war who have served disciplinary or judicial sentences may not be treated differently
from other prisoners of war.”).
640

Refer to § 9.25.4 (Special Surveillance of POWs as a Result of Unsuccessful Escape).

619

9.27.1 POW Camp Authorities Who May Order Disciplinary Punishment. Apart fromjudicial authorities or superior military authorities, only the camp commander, the officer acting
in the commander’s place, or an officer to whom the commander has delegated his or her
disciplinary powers, may order disciplinary punishment. 641 A camp commander’s power toorder disciplinary punishment of POWs may not be delegated to POWs. 642
9.27.2 Confinement of POWs Pending Disposal of Offense. A POW accused of an
offense against discipline shall not be kept in confinement pending his or her hearing (e.g.,during the investigation of the accusation), unless (1) a member of the armed forces of the
Detaining Power would be so confined if he or she were accused of a similar offense, or (2) if
confinement is otherwise essential in the interests of camp order and discipline. 643
Any period spent in confinement awaiting disposal of an offense against discipline shallbe reduced to the absolute minimum and shall not exceed fourteen days. 644
The provisions of Articles 97 and 98 of the GPW shall apply to a POW’s confinement
while awaiting the disposal of offenses against discipline. 645 Thus, the conditions of any
confinement before the hearing should be at least as good as that afforded POWs who are
confined as part of disciplinary punishment. 646
9.27.3 Rights of POWs in Disciplinary Proceedings. Before any disciplinary award is
pronounced, the accused shall be given (1) precise information regarding the offenses of which
he or she is accused; (2) an opportunity to explain his or her conduct; and (3) an opportunity to
defend himself or herself. 647 He or she shall be permitted, in particular, to call witnesses and tohave recourse, if necessary, to the services of a qualified interpreter. 648

641

GPW art. 96 (“Without prejudice to the competence of courts and superior military authorities, disciplinary
punishment may be ordered only by an officer having disciplinary powers in his capacity as camp commander, or bya responsible officer who replaces him or to whom he has delegated his disciplinary powers.”).
642

GPW art. 96 (“In no case may such powers be delegated to a prisoner of war or be exercised by a prisoner ofwar.”).
643

GPW art. 95 (“A prisoner of war accused of an offence against discipline shall not be kept in confinement
pending the hearing unless a member of the armed forces of the Detaining Power would be so kept if he wereaccused of a similar offence, or if it is essential in the interests of camp order and discipline.”).
644

GPW art. 95 (“Any period spent by a prisoner of war in confinement awaiting the disposal of an offence against
discipline shall be reduced to an absolute minimum and shall not exceed fourteen days.”).
645

GPW art. 95 (“The provisions of Articles 97 and 98 of this Chapter shall apply to prisoners of war who are in
confinement awaiting the disposal of offences against discipline.”).
646

Refer to § 9.27.6 (Conditions for POWs Serving Disciplinary Punishments).

647

GPW art. 96 (“Before any disciplinary award is pronounced, the accused shall be given precise information
regarding the offences of which he is accused, and given an opportunity of explaining his conduct and of defending
himself.”).
648

GPW art. 96 (“He shall be permitted, in particular, to call witnesses and to have recourse, if necessary, to theservices of a qualified interpreter.”).

620

The decision shall be announced to the accused POW and to the POW Representative. 649
9.27.4 Record of Disciplinary Punishments. A record of disciplinary punishments shallbe maintained by the camp commander and shall be open to inspection by representatives of theProtecting Power. 650
9.27.5 Types of Disciplinary Punishments and Procedures for Dispensing Punishment. In
no case shall disciplinary punishments be inhuman, brutal, or dangerous to the health of
POWs. 651 The disciplinary punishments applicable to POWs are the following:•a fine that shall not exceed 50 percent of the advances of pay and working pay that the
POW would receive under Articles 60 and 62 of the GPW during a period of not morethan thirty days;•

discontinuance of privileges granted over and above the treatment provided for by the
GPW;•fatigue duties, not exceeding two hours daily;o “Fatigue duties” refers to details of extra-duty chores (e.g., such as policing of the
POW camp grounds, kitchen duty). 652
o The punishment of fatigue duties shall not be applied to officers. 653 In addition,
fatigue details should meet normal standards for working conditions and must not
be made more arduous as a disciplinary measure. 654•

confinement. 655
The duration of any single punishment shall in no case exceed thirty days. 656 The

649

GPW art. 96 (“The decision shall be announced to the accused prisoner of war and to the prisoners’
representative.”).
650
GPW art. 96 (“A record of disciplinary punishments shall be maintained by the camp commander and shall be
open to inspection by representatives of the Protecting Power.”).
651

GPW art. 89 (“In no case shall disciplinary punishments be inhuman, brutal or dangerous to the health ofprisoners of war.”).
652

LEVIE, POWS 327 (“This punishment consists of extra-duty chores (beyond regular work hours and beyond
normal duty-roster assignments), such as policing of the prisoner-of-war camp grounds, kitchen police, etc. The
imposition of such extra fatigue duty as disciplinary punishment is limited to 2 hours per day; and Article 90 limits
the overall duration to 30 days.”).
653

GPW art. 89 (“The punishment referred to under (3) shall not be applied to officers.”).

654

Refer to § 9.19.3 (Suitable Work Conditions).

655

GPW art. 89 (“The disciplinary punishment applicable to prisoners of war are the following: (1) A fine whichshall not exceed 50 per cent of the advances of pay and working pay which the prisoner of war would otherwise
receive under the provisions of Articles 60 and 62 during a period of not more than thirty days. (2) Discontinuanceof privileges granted over and above the treatment provided for by the present Convention. (3) Fatigue duties notexceeding two hours daily. (4) Confinement.”).

621

maximum of thirty days may not be exceeded, even if the POW is answerable for several acts
when punishment is awarded, regardless of whether such acts are related. 657
Any period of confinement awaiting the hearing of a disciplinary offense or the award of
disciplinary punishment shall be deducted from an award pronounced against a POW. 658
The period between the pronouncing of an award of disciplinary punishment and its
execution shall not exceed one month. 659 When a POW is awarded a further disciplinary
punishment, a period of at least three days shall elapse between the execution of any two of thepunishments, if the duration of one of these punishments is ten days or more. 660
9.27.6 Conditions for POWs Serving Disciplinary Punishments. Conditions fordisciplinary punishments must comply with the requirements for humane treatment. 661 In
addition, the following rules apply:
9.27.6.1 Premises Where Disciplinary Punishments Are to Be Served. POWs
shall not in any case be transferred to penitentiary establishments (prisons, penitentiaries, convict
prisons, etc.) to undergo disciplinary punishment. 662
Officers and persons of equivalent status shall not be lodged in the same quarters as noncommissioned officers or enlisted personnel. 663
Women POWs undergoing disciplinary punishment shall be confined in separate quartersfrom male POWs and shall be under the immediate supervision of women. 664
9.27.6.2 Retention of the Benefits of the GPW While Undergoing Disciplinary
Punishment. A POW undergoing confinement as a disciplinary punishment shall continue toreceive the benefits of the GPW, except insofar as these benefits are necessarily rendered656

GPW art. 90 (“The duration of any single punishment shall in no case exceed thirty days.”).

657

GPW art. 90 (“The maximum of thirty days provided above may not be exceeded, even if the prisoner of war is
answerable for several acts at the same time when he is awarded punishment, whether such acts are related or not.”).
658

GPW art. 90 (“Any period of confinement awaiting the hearing of a disciplinary offence or the award of
disciplinary punishment shall be deducted from an award pronounced against a prisoner of war.”).
659

GPW art. 90 (“The period between the pronouncing of an award of disciplinary punishment and its execution
shall not exceed one month.”).
660

GPW art. 90 (“When a prisoner of war is awarded a further disciplinary punishment, a period of at least threedays shall elapse between the execution of any two of the punishments, if the duration of one of these is ten days ormore.”).
661

Refer to § 9.5 (Humane Treatment and Basic Protections for POWs).

662

GPW art. 97 (“Prisoners of war shall not in any case be transferred to penitentiary establishments (prisons,penitentiaries, convict prisons, etc.) to undergo disciplinary punishment therein.”).
663

GPW art. 97 (“Officers and persons of equivalent status shall not be lodged in the same quarters as noncommissioned officers or men.”).
664

GPW art. 97 (“Women prisoners of war undergoing disciplinary punishment shall be confined in separate
quarters from male prisoners of war and shall be under the immediate supervision of women.”).

622

inapplicable by the mere fact that the POW is confined. 665
In no case, however, may POWs undergoing disciplinary punishments be deprived of thebenefits of the provisions of Articles 78 and 126 of the GPW. 666 Thus, POWs undergoingdisciplinary punishments may not be deprived of the right to make requests and complaints, or todeal with representatives of the Protecting Power (including representatives of an impartial
humanitarian organization performing the functions of the Protecting Power). 667
9.27.6.3 Disciplinary Punishment - Retention of Prerogatives of Rank. A POWawarded disciplinary punishment may not be deprived of prerogatives attached to his or her
rank. 668 The prerogatives referred to are those provided by the GPW, such as the right not to berequired to work or the right to wear the insignia of their rank. 669
9.27.6.4 Attendance at Daily Medical Inspection and Medical Attention. POWs
awarded disciplinary punishment shall be allowed, on their request, to be present at the daily
medical inspection. 670 They shall receive the attention that their state of health requires and, if
necessary, shall be removed to the camp infirmary or to a hospital. 671
9.27.6.5 Exercise and Access to the Open Air. POWs awarded disciplinary
punishment shall be allowed to exercise and to stay in the open air at least two hours daily. 672
9.27.6.6 Reading, Writing, Correspondence, and Packages. POWs awarded
disciplinary punishment shall have permission to read and write, and to send and receive
letters. 673 Parcels and remittances of money, however, may be withheld from them until thecompletion of the punishment; such parcels and remittances of money shall meanwhile beentrusted to the POW Representative, who will hand over to the infirmary the perishable goods
665

GPW art. 98 (“A prisoner of war undergoing confinement as a disciplinary punishment, shall continue to enjoy
the benefits of the provisions of this Convention except in so far as these are necessarily rendered inapplicable by
the mere fact that he is confined.”).
666

GPW art. 98 (“In no case may he be deprived of the benefits of the provisions of Articles 78 and 126.”).

667

Refer to § 9.23 (POW Requests, Complaints); § 9.32 (Role of the Protecting Power in the GPW).

668
GPW art. 98 (“A prisoner of war awarded disciplinary punishment may not be deprived of the prerogatives
attached to his rank.”).
669

See GPW COMMENTARY 467 (“Officers retain the right to wear the insignia of their rank (Article 44). They may
not be required to work (Article 49, paragraph 3) or to provide their own service (Article 44, paragraph 2), for thatwould amount to making them perform fatigue duties, which is forbidden under Article 89, paragraph 2. In
accordance with Article 97, paragraph 3, officers will be lodged in quarters separate from those of noncommissioned officers and other ranks. These provisions were in the main observed during the Second World
War.”).
670

GPW art. 98 (“[POWs awarded disciplinary punishment] shall be allowed, on their request, to be present at thedaily medical inspections.”).
671

GPW art. 98 (“[POWs awarded disciplinary punishment] shall receive the attention which their state of healthrequires and, if necessary, shall be removed to the camp infirmary or to a hospital.”).
672

GPW art. 98 (“Prisoners of war awarded disciplinary punishment shall be allowed to exercise and to stay in the
open air at least two hours daily.”).
673

GPW art. 98 (“They shall have permission to read and write, likewise to send and receive letters.”).

623

contained in such parcels. 674
9.27.7 Disciplinary Punishment and Repatriation or Accommodation in a Neutral
Country. No POW on whom a disciplinary punishment has been imposed and who is eligible forrepatriation or for accommodation in a neutral country may be kept back because he or she has
not undergone his or her punishment. 675
9.28 JUDICIAL PROCEEDINGS AND PUNISHMENT
In addition to the general principles applicable to POW punishment, the following rules
address judicial proceedings and punishment.
9.28.1 No Trial or Sentence Without Pre-Existing Law. No POW may be tried orsentenced for an act that is not forbidden by the law of the Detaining Power or by internationallaw in force at the time that act was committed. 676
9.28.2 Same Courts and Same Procedures. A POW can be validly sentenced only if thesentence has been pronounced by the same courts according to the same procedure as in the caseof members of the armed forces of the Detaining Power, and if, furthermore, the provisions of
Chapter III of the GPW have been observed. 677 For example, evidence laws used in the trial of a
POW will be the same as those applicable in the trial of a member of the Detaining Power’s
military forces.
9.28.3 Notification of Proceedings, Investigation of Offenses, and Confinement Before
Trial.
9.28.3.1 Notification of Proceedings. In any case in which the Detaining Powerdecides to institute judicial proceedings against a POW, the Detaining Power shall notify theProtecting Power and the POW Representative as soon as possible and at least three weeks
before the opening of the trial. 678 This period of three weeks shall run from the day on whichsuch notification reaches the Protecting Power at the address previously indicated by the latter to674

GPW art. 98 (“Parcels and remittances of money however, may be withheld from them until the completion of
the punishment; they shall meanwhile be entrusted to the prisoners’ representative, who will hand over to theinfirmary the perishable goods contained in such parcels.”).
675

GPW art. 115 (“No prisoner of war on whom a disciplinary punishment has been imposed and who is eligible forrepatriation or for accommodation in a neutral country, may be kept back on the plea that he has not undergone his
punishment.”).
676

GPW art. 99 (“No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the
Detaining Power or by international law, in force at the time the said act was committed.”).
677

GPW art. 102 (“A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same
courts according to the same procedure as in the case of members of the armed forces of the Detaining Power, andif, furthermore, the provisions of the present Chapter have been observed.”).
678

See GPW art. 104 (“In any case in which the Detaining Power has decided to institute judicial proceedings
against a prisoner of war, it shall notify the Protecting Power as soon as possible and at least three weeks before theopening of the trial. … The same communication shall be made by the Detaining Power to the prisoners’
representative.”).

624

the Detaining Power. 679 This notification shall contain the following information:•

surname and first names of the POW, his or her rank, his or her army, regimental,
personal or serial number, his or her date of birth, and his or her profession or trade, if
any;•place of internment or confinement;•

specification of the charge or charges on which the POW is to be arraigned, giving thelegal provisions applicable; and•designation of the court that will try the case, and the date and place fixed for the openingof the trial. 680

If no evidence is submitted at the opening of a trial that the notification referred to above
was received by the Protecting Power, by the POW, and by the POW Representative concerned
at least three weeks before the opening of the trial, then the trial may not take place and must be
adjourned. 681
9.28.3.2 Rapid Investigations. Judicial investigations relating to a POW shall be
conducted as rapidly as circumstances permit so that his or her trial may take place as soon as
possible. 682
9.28.3.3 Pre-Trial Confinement. A POW shall not be confined while awaiting
trial unless a member of the armed forces of the Detaining Power would be so confined if he or
she were accused of a similar offense, or if it is essential to do so in the interests of national
security. 683
In no circumstances, however, may a POW be confined for more than three months. 684

679

GPW art. 104 (“This period of three weeks shall run as from the day on which such notification reaches theProtecting Power at the address previously indicated by the latter to the Detaining Power.”).
680

GPW art. 104 (“The said notification shall contain the following information: (1) surname and first names of theprisoner of war, his rank, his army, regimental, personal or serial number, his date of birth, and his profession ortrade, if any; (2) place of internment or confinement; (3) specification of the charge or charges on which the prisonerof war is to be arraigned, giving the legal provisions applicable; (4) designation of the court which will try the case,likewise the date and place fixed for the opening of the trial.”).
681

GPW art. 104 (“If no evidence is submitted, at the opening of a trial, that the notification referred to above wasreceived by the Protecting Power, by the prisoner of war and by the prisoners' representative concerned, at least
three weeks before the opening of the trial, then the latter cannot take place and must be adjourned.”).
682

GPW art. 103 (“Judicial investigations relating to a prisoner of war shall be conducted as rapidly as
circumstances permit and so that his trial shall take place as soon as possible.”).
683

GPW art. 103 (“A prisoner of war shall not be confined while awaiting trial unless a member of the armed forcesof the Detaining Power would be so confined if he were accused of a similar offence, or if it is essential to do so in
the interests of national security.”).
684

GPW art. 103 (“In no circumstances shall this confinement exceed three months.”).

625

Any period spent by a POW in confinement awaiting trial shall be deducted from any
sentence of imprisonment passed upon him or her and taken into account in fixing any
penalty. 685
Articles 97 and 98 of the GPW apply to a POW’s confinement while awaiting trial. 686
Thus, the conditions of any confinement before trial should be at least as good as that afforded
POWs who are confined as part of disciplinary punishment. 687
9.28.4 Rights of Defense and Trial Procedure.
9.28.4.1 No Moral or Physical Coercion to Induce Admissions of Guilt. No moral
or physical coercion may be exerted on a POW in order to induce him or her to admit himself or
herself guilty of the act of which he or she is accused. 688
9.28.4.2 Opportunity to Present Defense and Assistance of Counsel. No POW
may be convicted without having had an opportunity to present his or her defense and to have theassistance of a qualified advocate or counsel. 689
In judicial proceedings against a POW, the POW shall be entitled to:•assistance by one of his or her POW comrades;•

defense by a qualified advocate or counsel of his or her own choice;•the calling of witnesses; and•if he or she deems necessary, the services of a competent interpreter. 690

The POW shall be advised of these rights by the Detaining Power in due time before thetrial to enable him or her to exercise them. 691

685
GPW art. 103 (“Any period spent by a prisoner of war in confinement awaiting trial shall be deducted from any
sentence of imprisonment passed upon him and taken into account in fixing any penalty.”).
686

GPW art. 103 (“The provisions of Articles 97 and 98 of this Chapter shall apply to a prisoner of war whilst in
confinement awaiting trial.”).
687

Refer to § 9.27.6 (Conditions for POWs Serving Disciplinary Punishments).

688

GPW art. 99 (“No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit
himself guilty of the act of which he is accused.”).
689

GPW art. 99 (“No prisoner of war may be convicted without having had an opportunity to present his defence
and the assistance of a qualified advocate or counsel.”).
690

GPW art. 105 (“The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defence by
a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he deems necessary, to theservices of a competent interpreter. He shall be advised of these rights by the Detaining Power in due time before
the trial.”).
691

GPW art. 105 (“The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defence by
a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he deems necessary, to the626Failing a choice by the POW, the Protecting Power shall find him or her an advocate orcounsel, and shall have at least one week at its disposal for this purpose. 692 The Detaining Powershall deliver to the Protecting Power, on request, a list of persons qualified to present thedefense. 693 Failing a choice of an advocate or counsel by the POW or the Protecting Power, theDetaining Power shall appoint a competent advocate or counsel to conduct the defense. 694
9.28.4.3 Facilities for Defense Counsel. The advocate or counsel conducting thedefense on behalf of the POW shall have at his or her disposal a period of two weeks at least
before the opening of the trial, as well as the necessary facilities to prepare the defense of theaccused. 695 He or she may, in particular, freely visit the accused and interview him or her inprivate. 696 He or she may also confer with any witnesses for the defense, including POWs. 697
He or she shall have the benefit of these facilities until the term of appeal or petition has
expired. 698
9.28.4.4 Rights of the Accused to Particulars of Charge. Particulars of the charge
or charges on which the POW is to be arraigned, as well as the documents that are generally
communicated to the accused by virtue of the laws in force in the armed forces of the Detaining
Power, shall be communicated to the accused POW in a language that he or she understands, andin good time before the opening of the trial. 699 The same communication in the same
circumstances shall be made to the advocate or counsel conducting the defense on behalf of the
POW. 700
9.28.4.5 Right of the Protecting Power to Attend Trial. Representatives of theProtecting Power shall be entitled to attend the trial of the case unless, exceptionally, the trial isservices of a competent interpreter. He shall be advised of these rights by the Detaining Power in due time before
the trial.”).
692

GPW art. 105 (“Failing a choice by the prisoner of war, the Protecting Power shall find him an advocate orcounsel, and shall have at least one week at its disposal for the purpose.”).
693

GPW art. 105 (“The Detaining Power shall deliver to the said Power, on request, a list of persons qualified topresent the defence.”).
694

GPW art. 105 (“Failing a choice of an advocate or counsel by the prisoner of war or the Protecting Power, theDetaining Power shall appoint a competent advocate or counsel to conduct the defence.”).
695

GPW art. 105 (“The advocate or counsel conducting the defence on behalf of the prisoner of war shall have at his
disposal a period of two weeks at least before the opening of the trial, as well as the necessary facilities to prepare
the defence of the accused.”).
696

GPW art. 105 (“He may, in particular, freely visit the accused and interview him in private.”).

697

GPW art. 105 (“He may also confer with any witnesses for the defence, including prisoners of war.”).

698

GPW art. 105 (“He shall have the benefit of these facilities until the term of appeal or petition has expired.”).

699

GPW art. 105 (“Particulars of the charge or charges on which the prisoner of war is to be arraigned, as well as the
documents which are generally communicated to the accused by virtue of the laws in force in the armed forces of
the Detaining Power, shall be communicated to the accused prisoner of war in a language which he understands, andin good time before the opening of the trial.”).
700

GPW art. 105 (“The same communication in the same circumstances shall be made to the advocate or counsel
conducting the defence on behalf of the prisoner of war.”).

627

held in camera in the interest of State security. 701 In such a case, the Detaining Power shalladvise the Protecting Power accordingly. 702
9.28.4.6 Notification of Trial Outcome. Any judgment and sentence pronounced
upon a POW shall be immediately reported to the Protecting Power and the POW Representative
concerned in the form of a summary communication, which shall also indicate whether the POW
has the right of appeal with a view to the quashing of the sentence or the reopening of the trial. 703
This communication shall also be sent to the accused POW in a language he or she understands,
if the sentence was not pronounced in his or her presence. 704
9.28.5 Appeals and Notice of Final Conviction or Death Sentence.
9.28.5.1 Appeals. Every POW shall have, in the same manner as the members of
the armed forces of the Detaining Power, the right of appeal or petition from any sentence
pronounced upon him or her, with a view to the quashing or revising of the sentence or thereopening of the trial. 705
He or she shall be fully informed of his or her right to appeal or petition and of the time
limit within which he or she may do so. 706
The Detaining Power shall immediately communicate to the Protecting Power thedecision of the POW to use or to waive his or her right of appeal. 707
9.28.5.2 Notification of Final Conviction or Death Sentence. If a POW is finallyconvicted or if a sentence pronounced on a POW in the first instance is a death sentence, theDetaining Power shall as soon as possible address to the Protecting Power a detailed
communication containing:•

the precise wording of the finding and sentence;

701

GPW art. 105 (“The representatives of the Protecting Power shall be entitled to attend the trial of the case, unless,exceptionally, this is held in camera in the interest of State security.”).
702

GPW art. 105 (“In such a case the Detaining Power shall advise the Protecting Power accordingly.”).

703

GPW art. 107 (“Any judgment and sentence pronounced upon a prisoner of war shall be immediately reported to
the Protecting Power in the form of a summary communication, which shall also indicate whether he has the right ofappeal with a view to the quashing of the sentence or the reopening of the trial. This communication shall likewise
be sent to the prisoners’ representative concerned.”).
704

GPW art. 107 (“It shall also be sent to the accused prisoner of war in a language he understands, if the sentence
was not pronounced in his presence.”).
705

GPW art. 106 (“Every prisoner of war shall have, in the same manner as the members of the armed forces of the
Detaining Power, the right of appeal or petition from any sentence pronounced upon him, with a view to thequashing or revising of the sentence or the reopening of the trial.”).
706

GPW art. 106 (“He shall be fully informed of his right to appeal or petition and of the time limit within which hemay do so.”).
707

GPW art. 107 (“The Detaining Power shall also immediately communicate to the Protecting Power the decisionof the prisoner of war to use or to waive his right of appeal.”).

628

•

a summarized report of any preliminary investigation and of the trial, emphasizing inparticular the elements of the prosecution and the defense; and•notification, where applicable, of the establishment where the sentence will be served. 708

These communications shall be sent to the Protecting Power at the address previously
made known to the Detaining Power. 709
9.28.6 Death Sentences. POWs and the Protecting Powers shall be informed, as soon as
possible, of the offenses that are punishable by death sentence under the laws of the Detaining
Power. 710 Other offenses shall not thereafter be made punishable by the death penalty without
the concurrence of the Power on which the POWs depend. 711
The death sentence may not be pronounced on a POW unless the attention of the court
has, in accordance with the second paragraph of Article 87 of the GPW, been particularly called
to the fact:•that since the accused is not a national of the Detaining Power, he or she is not bound to it
by any duty of allegiance; and•that he or she is in the power of the Detaining Power as the result of circumstances
independent of his or her own will. 712

If the death penalty is pronounced on a POW, the sentence shall not be executed before
the expiration of a period of at least six months from the date when the Protecting Power
receives, at an indicated address, the detailed communication provided for in Article 107 of the
GPW. 713

708

GPW art. 107 (“Furthermore, if a prisoner of war is finally convicted or if a sentence pronounced on a prisoner of
war in the first instance is a death sentence, the Detaining Power shall as soon as possible address to the Protecting
Power a detailed communication containing: (1) the precise wording of the finding and sentence; (2) a summarizedreport of any preliminary investigation and of the trial, emphasizing in particular the elements of the prosecution andthe defence; (3) notification, where applicable, of the establishment where the sentence will be served. The
communications provided for in the foregoing sub-paragraphs shall be sent to the Protecting Power at the address
previously made known to the Detaining Power.”).
709

GPW art. 107 (“The communications provided for in the foregoing sub-paragraphs shall be sent to the Protecting
Power at the address previously made known to the Detaining Power.”).
710

GPW art. 100 (“Prisoners of war and the Protecting Powers shall be informed as soon as possible of the offences
which are punishable by the death sentence under the laws of the Detaining Power.”).
711

GPW art. 100 (“Other offences shall not thereafter be made punishable by the death penalty without theconcurrence of the Power on which the prisoners of war depend.”).
712

GPW art. 100 (“The death sentence cannot be pronounced on a prisoner of war unless the attention of the court
has, in accordance with Article 87, second paragraph, been particularly called to the fact that since the accused is nota national of the Detaining Power, he is not bound to it by any duty of allegiance, and that he is in its power as theresult of circumstances independent of his own will.”).
713

GPW art. 101 (“If the death penalty is pronounced on a prisoner of war, the sentence shall not be executed before
the expiration of a period of at least six months from the date when the Protecting Power receives, at an indicated629

9.28.7 Conditions for POWs Serving Judicial Punishments.
9.28.7.1 Establishments and Conditions Where Sentences Are Served. A sentence
pronounced on a POW after a conviction has become duly enforceable shall be served in thesame establishments and under the same conditions as in the case of members of the armed
forces of the Detaining Power. 714 These conditions shall in all cases conform to the requirementsof health and humanity. 715
9.28.7.2 Confinement of Women POWs Who Have Been Sentenced. A woman
POW on whom such a sentence has been pronounced shall be confined in separate quarters andshall be under the supervision of women. 716
9.28.7.3 Complaints and Access to ICRC and the Protecting Power DuringConfinement. In any case, POWs sentenced to a penalty depriving them of their liberty shallretain the benefit of the provisions of Articles 78 and 126 of the GPW. 717 Thus, they may makerequests and complaints and deal with representatives of the Protecting Power or the ICRC. 718
9.28.7.4 Correspondence, Relief Parcels, Exercise, Medical Care, and Spiritual
Assistance. Furthermore, POWs sentenced to a penalty depriving them of their liberty shall beentitled to receive and send correspondence, to receive at least one relief parcel monthly, to takeregular exercise in the open air, to have the medical care required by their state of health, and tohave the spiritual assistance they may desire. 719
9.28.7.5 Prohibited Penalties. Penalties to which POWs may be subjected shallbe in accordance with the provisions of the third paragraph of Article 87 of the GPW. 720 Thus,
collective punishment for individual acts, corporal punishment, imprisonment in premises
without daylight, and, in general, any form of torture or cruelty, are forbidden for POWs serving

address, the detailed communication provided for in Article 107.”). Refer to § 9.28.5.2 (Notification of Final
Conviction or Death Sentence).
714

GPW art. 108 (“Sentences pronounced on prisoners of war after a conviction has become duly enforceable, shallbe served in the same establishments and under the same conditions as in the case of members of the armed forces of
the Detaining Power.”).
715

GPW art. 108 (“These conditions shall in all cases conform to the requirements of health and humanity.”).

716

GPW art. 108 (“A woman prisoner of war on whom such a sentence has been pronounced shall be confined inseparate quarters and shall be under the supervision of women.”).
717

GPW art. 108 (“In any case, prisoners of war sentenced to a penalty depriving them of their liberty shall retain
the benefit of the provisions of Articles 78 and 126 of the present Convention.”).
718

Refer to § 9.23 (POW Requests, Complaints, and Reports About Conditions of Captivity); § 9.33 (Access to
POWs by the Protecting Powers, ICRC, and Relief Organizations).
719

GPW art. 108 (“Furthermore, they shall be entitled to receive and despatch correspondence, to receive at least
one relief parcel monthly, to take regular exercise in the open air, to have the medical care required by their state ofhealth, and the spiritual assistance they may desire.”).
720

GPW art. 108 (“Penalties to which they may be subjected shall be in accordance with the provisions of Article
87, third paragraph.”).

630

judicial penalties. 721
9.29 TRANSFER OF POWS FROM THE POW CAMP
9.29.1 Determining Whether to Transfer POWs. The Detaining Power, when deciding
upon the transfer of POWs, shall take into account the interests of the POWs themselves, more
especially so as not to increase the difficulty of their repatriation. 722
Sick or wounded POWs shall not be transferred as long as their recovery may beendangered by the journey, unless their safety imperatively demands it. 723
If the combat zone draws closer to a camp, the POWs in that camp shall not betransferred unless their transfer can be carried out in adequate conditions of safety, or unless they
are exposed to greater risks by remaining on the spot than by being transferred. 724
9.29.2 Conditions for the Transfer of POWs. The transfer of POWs shall always beeffected humanely and in conditions not less favorable than those under which the forces of the
Detaining Power are transferred. 725 Account shall always be taken of the climatic conditions towhich the POWs are accustomed, and the conditions of transfer shall in no case be prejudicial totheir health. 726
The Detaining Power shall supply POWs during transfer with sufficient food anddrinking water to keep them in good health, and shall supply them with the necessary clothing,shelter, and medical attention. 727 The Detaining Power shall take adequate precautions,especially in case of transport by sea or by air, to ensure their safety during transfer, and shalldraw up a complete list of all transferred POWs before their departure. 728

721

Refer to § 9.26.6 (Prohibited Penalties).

722

GPW art. 46 (“The Detaining Power, when deciding upon the transfer of prisoners of war, shall take into accountthe interests of the prisoners themselves, more especially so as not to increase the difficulty of their repatriation.”).
723

GPW art. 47 (“Sick or wounded prisoners of war shall not be transferred as long as their recovery may beendangered by the journey, unless their safety imperatively demands it.”).
724

GPW art. 47 (“If the combat zone draws closer to a camp, the prisoners of war in the said camp shall not betransferred unless their transfer can be carried out in adequate conditions of safety, or unless they are exposed togreater risks by remaining on the spot than by being transferred.”).
725

GPW art. 46 (“The transfer of prisoners of war shall always be effected humanely and in conditions not lessfavourable than those under which the forces of the Detaining Power are transferred.”).
726

GPW art. 46 (“Account shall always be taken of the climatic conditions to which the prisoners of war are
accustomed and the conditions of transfer shall in no case be prejudicial to their health.”).
727

GPW art. 46 (“The Detaining Power shall supply prisoners of war during transfer with sufficient food anddrinking water to keep them in good health, likewise with the necessary clothing, shelter and medical attention.”).
728
GPW art. 46 (“The Detaining Power shall take adequate precautions especially in case of transport by sea or byair, to ensure their safety during transfer, and shall draw up a complete list of all transferred prisoners before theirdeparture.”).

631

9.29.3 Procedures for Transfer of POWs From the Camp.
9.29.3.1 Notification of Transfer. In the event of transfer, POWs shall be
officially advised of their departure and of their new postal address. 729 Such notifications shallbe given in time for them to pack their luggage and inform their next of kin. 730
9.29.3.2 Baggage. POWs shall be allowed to take with them their personal
effects and the correspondence and parcels that have arrived for them. 731 The weight of suchbaggage may be limited, if the conditions of transfer so require, to what each POW canreasonably carry, which shall in no case be more than 25 kilograms (approximately 55 pounds)
per person. 732
9.29.3.3 Forwarding of Mail. Mail and parcels addressed to their former camp
shall be forwarded to POWs without delay. 733
9.29.3.4 Disposition of Community Property and Remaining Property. The campcommander shall take, in agreement with the POW Representative, any measures needed toensure the transport of the POWs’ community property and of the luggage they are unable totake with them in consequence of restrictions imposed by virtue of the second paragraph of
Article 48 of the GPW (i.e., restrictions on the weight of baggage). 734
9.29.3.5 Costs of Transfers. The costs of transfers shall be borne by the Detaining
Power.

735

9.30 TRANSFER OF POWS TO THE CUSTODY OF ANOTHER DETAINING POWER
The GPW specifies a number of rules that apply to the transfer of POWs by the Detaining
Power to the custody of another Detaining Power.
9.30.1 Requirements for Transfer to the Custody of Another Detaining Power. POWs
may only be transferred by the Detaining Power to a Power that is a Party to the GPW and after
the Detaining Power has satisfied itself of the willingness and ability of such receiving Power to729

GPW art. 48 (“In the event of transfer, prisoners of war shall be officially advised of their departure and of their
new postal address.”).
730

GPW art. 48 (“Such notifications shall be given in time for them to pack their luggage and inform their next ofkin.”).
731

GPW art. 48 (“They shall be allowed to take with them their personal effects, and the correspondence and parcels
which have arrived for them.”).
732

GPW art. 48 (“The weight of such baggage may be limited, if the conditions of transfer so require, to what eachprisoner can reasonably carry, which shall in no case be more than twenty-five kilograms per head.”).
733

GPW art. 48 (“Mail and parcels addressed to their former camp shall be forwarded to them without delay.”).

734

GPW art. 48 (“The camp commander shall take, in agreement with the prisoners’ representative, any measuresneeded to ensure the transport of the prisoners’ community property and of the luggage they are unable to take withthem in consequence of restrictions imposed by virtue of the second paragraph of this Article.”).

735

GPW art. 48 (“The costs of transfers shall be borne by the Detaining Power.”).

632

apply the GPW. 736 U.S. policy may prescribe additional requirements. 737
To ensure accountability, a POW should not be transferred before his or her formal
processing and submission of all required information to the National POW Information
Bureau. 738
9.30.2 Responsibility When Transferred to the Custody of Another Detaining Power.
When POWs are transferred under such circumstances, responsibility for the application of the
GPW rests on the Power accepting them while they are in its custody. 739
Nevertheless, if that Power fails to carry out the provisions of the GPW in any important
respect, the Power by whom the POWs were transferred shall, upon being notified by theProtecting Power, take effective measures to correct the situation or shall request the return of
the POWs. 740 Such requests must be complied with. 741
9.30.3 Special Agreements on Transfers to the Another Detaining Power. Special
agreements may be concluded with respect to POW transfers to the custody of another Detaining
Power. U.S. policy has been to require a written agreement or arrangement before transferring
POWs to a coalition partner. 742 For example, the receiving State may agree to inspections by thetransferring State to verify compliance with the GPW. 743
736

GPW art. 12 (“Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to
the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee
Power to apply the Convention.”).
737

Refer to, e.g., § 8.14.4.1 (U.S. Policy Prohibiting Transfers in Cases in Which Detainees Would Likely Be
Tortured).
738

Refer to § 9.31.2 (National POW Information Bureau).

739

GPW art. 12 (“When prisoners of war are transferred under such circumstances, responsibility for the applicationof the Convention rests on the Power accepting them while they are in its custody.”).
740

GPW art. 12 (“Nevertheless, if that Power fails to carry out the provisions of the Convention in any important
respect, the Power by whom the prisoners of war were transferred shall, upon being notified by the Protecting
Power, take effective measures to correct the situation or shall request the return of the prisoners of war.”).
741

GPW art. 12 (“Such requests must be complied with.”).

742

For example, FINAL REPORT ON THE PERSIAN GULF WAR 578-79 (“US policy requires approval of a formalinternational agreement by the Assistant Secretary of Defense for International Security Affairs (ASD/ISA) and theState Department as a prerequisite to transferring EPWs to a Coalition partner. A government-to-government
agreement was negotiated between Saudi Arabia and the United States authorizing the transfer of EPWs to Saudi
custody. This document was signed formally on 15 January. Separate military-to-military agreements, authorized
by the ASD/ISA and the State Department, were also negotiated. These negotiations resulted in the US/UK EPW
transfer agreement of 31 January and US/French transfer agreement of 24 February. The agreements outlined theactions to be taken by capturing forces in processing EPWs and displaced civilians through US theater camps, andmedical channels to Saudi facilities. The agreement between the United States and Saudi governments provided theUnited States would transfer custody of EPW to Saudi control after EPW registration by US forces. This agreement
also was applicable to EPW captured by the French and British and processed by the US.”).
743

For example, An Arrangement for the Transfer of Enemy Prisoners of War and Civilian Internees from theCustody of British Forces to the Custody of American Forces, Jan. 31, 1991, reprinted as Appendix 1 in PETER
ROWE, THE GULF WAR 1990-91 IN INTERNATIONAL AND ENGLISH LAW 348 (1993) (“6 The British Forces will retain
a right of access to prisoners of war and civilian internees transferred from British custody while such persons are in633

9.31 NATIONAL ACCOUNTING OF THE DETENTION OF POWS
A proper accounting of the detention of POWs is an important responsibility of the
Detaining Power. 744 In order to provide as full an accounting as possible, and in order tominimize misidentification of POWs in its custody, the Detaining Power shall obtain detailed
information about each POW for forwarding through its National POW Information Bureau to
the Protecting Powers and the Central POW Information Agency.
9.31.1 Accountability Information That the Detaining Power Should Collect. The
following information regarding POWs should be collected by the Detaining Power and given to
its National POW Information Bureau for forwarding to the Powers concerned through theintermediary of the Protecting Powers and the Central POW Information Agency. This
information shall make it possible quickly to advise the next of kin concerned. 745
This information includes, in respect of each POW:•

indication of the Power on which he or she depends;•

surname (i.e., last name) and first names (i.e., first and middle names);•

army, regimental, personal, or serial number;

•

rank;

•

place and full date of birth;•

first name of the father and maiden name of the mother;•name and address of the person to be informed; and•the address to which correspondence for the POW may be sent. 746
In addition to this information, information regarding transfers, releases, repatriations,the custody of the American Forces.”); FINAL REPORT ON THE PERSIAN GULF WAR 578 (“Trained Reserve
Component (RC) EPW units were activated, and camp advisory teams were sent to Saudi Arabia to establish liaison
with Saudi units to provide technical assistance, and to maintain accountability for EPWs and displaced civilians
transferred to the Saudis. (In accordance with Article 12, GPW, the United States retained residual responsibility for
EPWs transferred to the Saudi Arabian government.)”).
744

Refer to § 9.2.2 (Responsibility of the Detaining Power).

745

GPW art. 122 (“This information shall make it possible quickly to advise the next of kin concerned.”).

746

GPW art. 122 (“Subject to the provisions of Article 17, the information shall include, in so far as available to the
Information Bureau, in respect of each prisoner of war, his surname, first names, rank, army, regimental, personal or
serial number, place and full date of birth, indication of the Power on which he depends, first name of the father andmaiden name of the mother, name and address of the person to be informed and the address to whichcorrespondence for the prisoner may be sent.”).

634

escapes, admissions to a hospital, and deaths shall also be collected and transmitted. 747
Likewise, information regarding the state of health of POWs who are seriously ill or seriously
wounded shall be supplied regularly, every week if possible. 748
In addition to notices of death, wills and records of death of POWs may be forwarded inaccordance with Article 120 of the GPW. 749 Lists of graves and the particulars of POWs interredin cemeteries and elsewhere may also be forwarded in accordance with Article 120 of the
GPW. 750
9.31.1.1 Difference Between the Accountability Information the Detaining Power
Must Seek and the Information the POW Must Provide. Although POWs are required to provide
full name, rank, date of birth, and service (or equivalent) number, and POWs are required toshow their identity card upon demand, POWs are not required to inform the Detaining Power of
their places of birth, the first name of fathers, the maiden name of mothers, or the names andaddresses of persons to be informed of capture. 751
9.31.2 National POW Information Bureau. Upon the outbreak of a conflict and in allcases of occupation, each of the parties to the conflict shall institute an official National POW
Information Bureau for POWs who are in its power. 752 Neutral or non-belligerent Powers, who
may have received within their territory persons belonging to one of the categories referred to in
Article 4 of the GPW, shall take the same action with respect to such persons. 753
The Power concerned shall ensure that the National POW Information Bureau is provided
with the necessary accommodation, equipment, and staff to ensure its efficient working. 754 It
shall be at liberty to employ POWs in the National POW Information Bureau under theconditions laid down in Section III of the GPW dealing with work by POWs. 755
Within the shortest possible period, each of the parties to the conflict shall give its
National POW Information Bureau the information referred to in the fourth, fifth, and sixth
747

GPW art. 122 (“The Information Bureau shall receive from the various departments concerned information
regarding transfers, releases, repatriations, escapes, admissions to hospital, and deaths, and shall transmit suchinformation in the manner described in the third paragraph above.”).
748

GPW art. 122 (“Likewise, information regarding the state of health of prisoners of war who are seriously ill or
seriously wounded shall be supplied regularly, every week if possible.”).
749

Refer to § 9.34.1 (Transmittal of Wills); § 9.34.2 (Death Certificates).

750

Refer to § 9.34.4 (Maintenance and Records of Graves and Ashes).

751

Refer to § 9.8.4 (Accountability Information That POWs Are Bound to Provide Upon Questioning).

752

GPW art. 122 (“Upon the outbreak of a conflict and in all cases of occupation, each of the Parties to the conflictshall institute an official Information Bureau for prisoners of war who are in its power.”).
753

GPW art. 122 (“Neutral or non-belligerent Powers who may have received within their territory persons
belonging to one of the categories referred to in Article 4, shall take the same action with respect to such persons.”).
754

GPW art. 122 (“The Power concerned shall ensure that the Prisoners of War Information Bureau is provided with
the necessary accommodation, equipment and staff to ensure its efficient working.”).
755

GPW art. 122 (“It shall be at liberty to employ prisoners of war in such a Bureau under the conditions laid downin the Section of the present Convention dealing with work by prisoners of war.”). Refer to § 9.19 (POW Labor).

635

paragraphs of Article 122 of the GPW regarding any enemy person belonging to one of thecategories referred to in Article 4 who has fallen into its power. 756 Neutral or non-belligerent
Powers shall take the same action with regard to persons belonging to such categories whomthey have received within their territory. 757
All written communications made by the National POW Information Bureau shall beauthenticated by a signature or a seal. 758
The National POW Information Bureau: (1) receives and forwards certain information to
the Powers concerned through the intermediary of the Protecting Powers and the Central POW
Information Agency; (2) replies to inquiries; and (3) collects personal valuables left by POWs.
9.31.2.1 Receiving and Forwarding Certain Information. The National POW
Information Bureau receives certain information regarding POWs from other departments of theState to which it belongs. 759
The National POW Information Bureau shall immediately forward such information by
the most rapid means to the Powers concerned through the intermediary of the Protecting Powers
and likewise of the Central POW Information Agency provided for in Article 123 of the GPW. 760
9.31.2.2 Replying to Inquiries Regarding POWs. The National POW Information
Bureau shall also be responsible for replying to all inquiries sent to it concerning POWs,
including those who have died in captivity; it will make any inquiries necessary to obtain theinformation that is asked for if the information is not in its possession. 761 Responses to inquiries

756

GPW art. 122 (“Within the shortest possible period, each of the Parties to the conflict shall give its Bureau theinformation referred to in the fourth, fifth and sixth paragraphs of this Article regarding any enemy person belonging
to one of the categories referred to in Article 4, who has fallen into its power.”).
757

GPW art. 122 (“Neutral or non-belligerent Powers shall take the same action with regard to persons belonging tosuch categories whom they have received within their territory.”).
758

GPW art. 122 (“All written communications made by the Bureau shall be authenticated by a signature or aseal.”).
759

GPW art. 122 (“Within the shortest possible period, each of the Parties to the conflict shall give its Bureau theinformation referred to in the fourth, fifth and sixth paragraphs of this Article regarding any enemy person belonging
to one of the categories referred to in Article 4, who has fallen into its power. Neutral or non-belligerent Powers
shall take the same action with regard to persons belonging to such categories whom they have received within theirterritory. … The Information Bureau shall receive from the various departments concerned information regardingtransfers, releases, repatriations, escapes, admissions to hospital, and deaths, and shall transmit such information in
the manner described in the third paragraph above. Likewise, information regarding the state of health of prisonersof war who are seriously ill or seriously wounded shall be supplied regularly, every week if possible.”) (emphasis
added).
760

GPW art. 122 (“The Bureau shall immediately forward such information by the most rapid means to the Powers
concerned, through the intermediary of the Protecting Powers and likewise of the Central Agency provided for in
Article 123.”).
761

GPW art. 122 (“The Information Bureau shall also be responsible for replying to all enquiries sent to it
concerning prisoners of war, including those who have died in captivity; it will make any enquiries necessary toobtain the information which is asked for if this is not in its possession.”).

636

must be made consistent with the protection of POWs against insults and public curiosity. 762
9.31.2.3 Collection of Personal Valuables Left by POWs. The National POW
Information Bureau shall furthermore be charged with collecting all personal valuables includingsums in currencies other than that of the Detaining Power and documents of importance to thenext of kin that have been left by POWs who have been repatriated or released, or who haveescaped or died, and shall forward these valuables to the Powers concerned. 763 Such articles
shall be sent by the National POW Information Bureau in sealed packets, which shall beaccompanied by statements giving clear and full particulars of the identity of the person to whom
the articles belonged, and by a complete list of the contents of the parcel. 764 Other personal
effects of such POWs shall be transmitted under arrangements agreed upon between the parties
to the conflict concerned. 765
9.31.3 Central POW Information Agency. The GPW contemplates that a Central POW
Information Agency shall be created in a neutral country. 766 This organization may be the sameas that provided for in the GC. 767
The function of the Central POW Information Agency shall be to collect all theinformation it may obtain through official or private channels respecting POWs, and to transmit
it as rapidly as possible to the country of origin of the POWs or to the Power on which they
depend. 768 The Central POW Information Agency shall receive from the parties to the conflict
all facilities for effecting such transmissions. 769 Parties to the GPW, and in particular thoseStates whose nationals benefit from the services of the Central POW Information Agency, arerequested to give the Central POW Information Agency the financial aid it may require. 770

762

Refer to § 9.5.3 (Protection Against Insults and Public Curiosity).

763

GPW art. 122 (“The Information Bureau shall furthermore be charged with collecting all personal valuables
including sums in currencies other than that of the Detaining Power and documents of importance to the next of kin,left by prisoners of war who have been repatriated or released, or who have escaped or died, and shall forward thesaid valuables to the Powers concerned.”).
764

GPW art. 122 (“Such articles shall be sent by the Bureau in sealed packets which shall be accompanied bystatements giving clear and full particulars of the identity of the person to whom the articles belonged, and by acomplete list of the contents of the parcel.”).
765

GPW art. 122 (“Other personal effects of such prisoners of war shall be transmitted under arrangements agreed
upon between the Parties to the conflict concerned.”).
766

GPW art. 123 (“A Central Prisoners of War Information Agency shall be created in a neutral country. The
International Committee of the Red Cross shall, if it deems necessary, propose to the Powers concerned theorganization of such an Agency.”).
767

Refer to § 10.31.3 (Central Information Agency for Protected Persons).

768

GPW art. 123 (“The function of the Agency shall be to collect all the information it may obtain through official
or private channels respecting prisoners of war, and to transmit it as rapidly as possible to the country of origin of
the prisoners of war or to the Power on which they depend.”).
769

GPW art. 123 (“It shall receive from the Parties to the conflict all facilities for effecting such transmissions.”).

770

GPW art. 123 (“The High Contracting Parties, and in particular those whose nationals benefit by the services of
the Central Agency, are requested to give the said Agency the financial aid it may require.”).

637

The provisions of the GPW establishing the Central POW Information Agency do not
restrict the humanitarian activities of the ICRC and of the relief societies described in Article 125of the GPW. 771
The GPW contemplates that the ICRC shall, if it deems necessary, propose to the Powers
concerned the organization of a Central POW Information Agency. 772 The role of the Central
POW Information Agency has been performed by the ICRC Central Tracing Agency, which has
also performed this role for protected persons under the GC.
9.31.4 U.S. Practice in Reporting to the ICRC Central Tracing Agency. For the UnitedStates, the National POW Information Bureau, which has been established and managed by the
Secretary of the Army, has been referred to at different times as the National Prisoner of War
Information Center (NPWIC) in Operation DESERT STORM in 1991, 773 and as the National
Detainee Reporting Center (NDRC) in Operation IRAQI FREEDOM in 2003. The
NPWIC/NDRC has performed the same function for certain protected persons under the GC.
In general, the Theater Prisoner of War Information Center (TPWIC) has received reports
from all subordinate POW facilities, regardless of Military Service, consolidated them andreconciled any discrepancies, and then forwarded its report to the NPWIC/NDRC. The
NPWIC/NDRC, on behalf of the United States, has further reviewed and reconciled reports asneeded, and forwarded its report to the ICRC Central Tracing Agency, which has acted as theCentral POW Information Agency. The release of POW accountability information outside thisprocess (such as directly from field components to ICRC field representatives) has been avoided
so as to reduce the likelihood of erroneous, conflicting, or duplicate reporting.
9.31.5 Exemption of National POW Information Bureau and Central POW Information
Agency From Certain Charges. The National POW Information Bureau and the Central POW
Information Agency shall enjoy free postage for mail, all the exemptions provided for in Article
74 of the GPW, 774 and, further, so far as possible, exemption from telegraphic charges or, at

771

GPW art. 123 (“The foregoing provisions shall in no way be interpreted as restricting the humanitarian activitiesof the International Committee of the Red Cross, or of the relief societies provided for in Article 125.”).
772

GPW art. 123 (“The International Committee of the Red Cross shall, if it deems necessary, propose to the Powers
concerned the organization of such an Agency.”).
773

For example, FINAL REPORT ON THE PERSIAN GULF WAR 579-80 (“HQDA [Headquarters, Department of theArmy] also operates the NPWIC, the central agency for all information pertaining to prisoners of war. Article 122,
GPW, and Article 136, GC, require captors to establish a national information bureau as quickly as possible after thestart of hostilities. The NPWIC, manned by Army Reserve (USAR) individual mobilization augmentees, volunteer
Reservists, and retired personnel, served as a central repository for information related to EPW and displaced
civilians captured or transferred to US forces. It also coordinated information with the ICRC pertaining to EPW
held by Coalition forces and provided information pertaining to Americans (POW) in Iraqi hands. Additionally, the
NPWIC consolidated information from the theater for dissemination to appropriate government agencies, Congress,
and the ICRC.”).
774

Refer to § 9.20.4 (Exemptions From Postal and Shipping Charges).

638

least, greatly reduced rates. 775
In addition, the National POW Information Bureau and the Central POW Information
Agency shall also enjoy exemption from postal charges in respect of letter-post items, postal
parcels, and monetary articles that concern POWs, which they send or receive, either directly or
as intermediaries under the conditions laid down in the Universal Postal Convention. 776 Suchitems exempt from postal charges should be marked appropriately. 777
9.32 ROLE OF THE PROTECTING POWER IN THE GPW
The Protecting Power is an organ for ensuring implementation of the GPW. The
Protecting Power has extensive duties under the GPW. It transmits information between
belligerents, monitors Detaining Power compliance with the GPW, and takes an active role inpromoting the welfare of POWs.
9.32.1 Transmission of Information Between Belligerents. The Protecting Power helps
transmit information between belligerents, including:•information concerning the geographic location of camps; 778•

financial information, including working rates of pay, notifications of payment, lists ofcredit balances, and claims for compensation; 779•

notification of arrangements made for POW correspondence and relief shipments; 780•

legal documents of POWs; 781•

death certificates of POWs; 782775

GPW art. 124 (“The national Information Bureaux and the Central Information Agency shall enjoy free postage
for mail, likewise all the exemptions provided for in Article 74, and further, so far as possible, exemption fromtelegraphic charges or, at least, greatly reduced rates.”).
776
Universal Postal Convention, art. 17(3), Dec. 14, 1989, 1687 UNTS 241, 252 (“The national Information
Bureaux and the Central Information Agencies mentioned above shall also enjoy exemption from postal charges inrespect of letter-post items, postal parcels and monetary articles which concern the persons referred to in paragraphs
1 and 2, which they send or receive, either direct or as intermediaries, under the conditions laid down in thoseparagraphs.”). Consider Letter Post Regulations, Article RL 111 to Article 7 of the Universal Postal Convention ofOct. 11, 2012, reprinted in INTERNATIONAL BUREAU OF THE UNIVERSAL POSTAL UNION, LETTER POST MANUAL,
page C.10, C.10-11 (Berne 2013, Update 2 – Jan. 2015) (“The following shall enjoy exemption from postal charges
within the meaning of article 7.2 of the Convention: 1.1 the Information Bureaux provided for in article 122 of the
Geneva Convention of 12 August 1949 relative to the treatment of prisoners of war; 1.2 the Central Prisoner-of-War
Information Agency provided for in article 123 of the same Convention;”).
777

Refer to § 9.20.4.3 (Exemption From Postal Charges Under the Universal Postal Convention).

778

Refer to § 9.11.4.2 (Sharing Information on the Location of POW Camps).

779

Refer to § 9.18 (Financial Resources of POWs).

780

Refer to § 9.4.2.6 (Arrangements Made for POWs to Write Correspondence and Receive Collective Relief).

781

Refer to § 9.21.2 (Legal Documents and Assistance).

639

•

accountability information for the detention of POWs; 783 and•official translations of the GPW, and laws and regulations that parties to the conflict haveadopted to implement it. 784

9.32.2 Monitoring or Inspecting Compliance With the GPW. The Protecting Power
monitors or inspects the Detaining Power’s compliance with the GPW, including by:•visiting all places where POWs may be; 785•

receiving complaints and requests by POWs, and periodic reports from the POW
Representatives; 786•

communicating with POW Representatives, and receiving the rationale in cases in which
the Detaining Power refuses to approve an elected POW Representative or chooses todismiss a POW Representative; 787•

inspecting records of disciplinary punishments; 788•

receiving communications and subsequent reports of death or serious injury of a POW incertain cases; 789•

receiving the reasons for the limitations imposed by the Detaining Power on advances ofpay; 790•

inspecting POW accounts; 791•

receiving records of labor detachments; 792 and782

Refer to § 9.34.2 (Death Certificates).

783

Refer to § 9.31 (National Accounting of the Detention of POWs).

784

GPW art. 128 (“The High Contracting Parties shall communicate to one another through the Swiss Federal
Council and, during hostilities, through the Protecting Powers, the official translations of the present Convention, as
well as the laws and regulations which they may adopt to ensure the application thereof.”).
785

Refer to § 9.33.1 (Access by Protecting Powers).

786

Refer to § 9.23.1 (POW Right to Make Requests and Complaints); § 9.23.3 (Periodic Reports by the POW
Representatives).
787

Refer to § 9.24.2.4 (Approval of Elected POW Representatives by the Detaining Power); § 9.24.5 (Dismissal of
POW Representative).
788

Refer to § 9.27.4 (Record of Disciplinary Punishments).

789

Refer to § 9.34.5 (Inquiries Into Death or Serious Injury of POWs in Certain Cases).

790

Refer to § 9.18.3.3 (Procedure for Limiting Amounts Drawn From Accounts Pending Special Agreement).

791

Refer to § 9.18.6 (POW Accounts).

792

Refer to § 9.19.7 (Labor Detachments).

640

•

observing trials of POWs if security permits and receiving notification of: (1) judicial
proceedings, (2) trial outcome, (3) whether the POW has decided to appeal, and (4) final
conviction or death sentence. 793

9.32.3 Actively Working to Improve the Welfare of POWs. In many other instances, theGPW contemplates that the Protecting Power will actively work to improve the welfare of
POWs, such as by:•helping the Detaining Power determine the maximum amount of money that POWs havein their possession; 794•

approving any limitation on correspondence beyond two letters and four cards permonth; 795•

proposing any necessary limitations on relief shipments; 796•

supervising the distribution of collective relief; 797•

setting up special means of transport to ensure the conveyance of relief shipments to
POWs; 798•

finding POWs defense counsel when necessary; 799•

notifying the transferring State in the event that a receiving State fails to carry out its
obligations; 800•

participating in the appointment of members of a Mixed Medical Commission; 801 and•lending its good offices to assist in dispute resolution. 802

793

Refer to § 9.28.4.5 (Right of the Protecting Power to Attend Trial); § 9.28.3.1 (Notification of Proceedings);§ 9.28.4.6 (Notification of Trial Outcome); § 9.28.5.1 (Appeals); § 9.28.5.2 (Notification of Final Conviction or
Death Sentence).
794

Refer to § 9.18.1 (Detaining Power Regulations on the Maximum Amount of Money in POW Possession).

795

Refer to § 9.20.6 (Censorship and Security Review of POW Correspondence and Shipments).

796

Refer to § 9.20.3 (Receipt of Individual and Collective Relief Shipments for POWs).

797

Refer to § 9.20.3.4 (Collective Relief for POWs).

798

Refer to § 9.20.5 (Special Means of Transport of Shipments to POWs).

799

Refer to § 9.28.4.2 (Opportunity to Present Defense and Assistance of Counsel).

800

Refer to § 9.30.2 (Responsibility When Transferred to the Custody of Another Detaining Power).

801

Refer to § 9.36.5 (Mixed Medical Commissions).

802

Refer to § 18.15.4 (Lending of Good Offices to Assist in Dispute Resolution).

641

9.33 ACCESS TO POWS BY THE PROTECTING POWERS, ICRC, AND RELIEF ORGANIZATIONS
9.33.1 Access by Protecting Powers. Representatives or delegates of the Protecting
Powers shall have permission to go to all places where POWs may be, particularly to places ofinternment, imprisonment, and labor, and shall have access to all premises occupied by POWs;
they also shall be allowed to go to the places of departure, passage, and arrival of POWs who arebeing transferred. 803 They shall be able to interview POWs, and in particular POW
Representatives, without witnesses, either personally or through an interpreter. 804
Representatives and delegates of the Protecting Powers shall have full liberty to select theplaces they wish to visit. 805 The duration and frequency of these visits shall not be restricted. 806
Visits may not be prohibited except for reasons of imperative military necessity, and then only as
an exceptional and temporary measure. 807
9.33.1.1 Participation of Compatriots of POWs in Visits. The Detaining Powerand the Power on which these POWs depend may agree, if necessary, that compatriots of these
POWs be permitted to participate in the visits. 808
9.33.1.2 ICRC Delegates Enjoying the Same Prerogatives of Access. The
delegates of the ICRC shall enjoy the same prerogatives as those of the representatives anddelegates of the Protecting Powers described in Article 126 of the GPW. 809
The appointment of such delegates shall be submitted to the approval of the Powerdetaining the POWs to be visited. 810
9.33.2 Access by Relief Societies and Other Organizations. Subject to the measures thatthe Detaining Powers may consider essential to ensure their security or to meet any otherreasonable need, the representatives of religious organizations, relief societies, or any otherorganization assisting POWs shall receive from these Powers, for themselves and their duly
803

GPW art. 126 (“Representatives or delegates of the Protecting Powers shall have permission to go to all places
where prisoners of war may be, particularly to places of internment, imprisonment and labour, and shall have accessto all premises occupied by prisoners of war; they shall also be allowed to go to the places of departure, passage andarrival of prisoners who are being transferred.”).
804

GPW art. 126 (“They shall be able to interview the prisoners, and in particular the prisoners’ representatives,
without witnesses, either personally or through an interpreter.”).
805

GPW art. 126 (“Representatives and delegates of the Protecting Powers shall have full liberty to select the places
they wish to visit.”).
806

GPW art. 126 (“The duration and frequency of these visits shall not be restricted.”).

807

GPW art. 126 (“Visits may not be prohibited except for reasons of imperative military necessity, and then only as
an exceptional and temporary measure.”).
808

GPW art. 126 (“The Detaining Power and the Power on which the said prisoners of war depend may agree, if
necessary, that compatriots of these prisoners of war be permitted to participate in the visits.”).
809

GPW art. 126 (“The delegates of the International Committee of the Red Cross shall enjoy the same
prerogatives.”).
810

GPW art. 126 (“The appointment of such delegates shall be submitted to the approval of the Power detaining theprisoners of war to be visited.”).

642

accredited agents, all necessary facilities for visiting the POWs; for distributing relief supplies
and material, from any source, intended for religious, educational, or recreative purposes; and forassisting them in organizing their leisure time within the POW camps. 811 Such societies ororganizations may be constituted in the territory of the Detaining Power or in any other country,
or they may have an international character. 812
9.33.2.1 Limitations on the Number of Relief Organizations. The Detaining
Power may limit the number of societies and organizations whose delegates are allowed to carryout their activities in its territory and under its supervision, on condition, however, that such
limitation shall not hinder the effective operation of adequate relief to all POWs. 813 The special
position of the ICRC in this field shall be recognized and respected at all times. 814
9.33.2.2 Receipts for Relief Consignments. As soon as relief supplies or material
intended for religious, educational, or recreative purposes are handed over to POWs, or very
shortly afterwards, receipts for each consignment, signed by the POW Representative, shall be
forwarded to the relief society or organization making the shipment. 815 At the same time,receipts for these consignments shall be supplied by the administrative authorities responsible for
guarding the POWs. 816
9.34 DEATH OF POWS
This section addresses rules relating to the death of POWs. The GWS and GWS-Sea also
have rules relating to the treatment of the dead; however, the GWS and GWS-Sea provisions arebroader in application, e.g., they address members of the armed forces who have died on thebattlefield and thus were not held as POWs. 817
9.34.1 Transmittal of Wills. The Detaining Power has an obligation to help POWs with811

GPW art. 125 (“Subject to the measures which the Detaining Powers may consider essential to ensure theirsecurity or to meet any other reasonable need, the representatives of religious organizations, relief societies, or any
other organization assisting prisoners of war, shall receive from the said Powers, for themselves and their duly
accredited agents, all necessary facilities for visiting the prisoners, for distributing relief supplies and material, fromany source, intended for religious, educational or recreative purposes, and for assisting them in organizing theirleisure time within the camps.”).
812

GPW art. 125 (“Such societies or organizations may be constituted in the territory of the Detaining Power or in
any other country, or they may have an international character.”).
813

GPW art. 125 (“The Detaining Power may limit the number of societies and organizations whose delegates areallowed to carry out their activities in its territory and under its supervision, on condition, however, that such
limitation shall not hinder the effective operation of adequate relief to all prisoners of war.”).
814

GPW art. 125 (“The special position of the International Committee of the Red Cross in this field shall berecognized and respected at all times.”).
815

GPW art. 125 (“As soon as relief supplies or material intended for the above-mentioned purposes are handed
over to prisoners of war, or very shortly afterwards, receipts for each consignment, signed by the prisoners’
representative, shall be forwarded to the relief society or organization making the shipment.”).
816

GPW art. 125 (“At the same time, receipts for these consignments shall be supplied by the administrative
authorities responsible for guarding the prisoners.”).
817

Refer to § 7.7 (Treatment and Handling of Enemy Military Dead).

643

their wills. 818 In all cases, after death, POWs’ wills shall be transmitted without delay to theProtecting Power, and a certified copy shall be sent to the Central POW Information Agency. 819
9.34.2 Death Certificates. Death certificates in the form given in Annex IV D to the
GPW, or lists certified by a responsible officer, of all persons who die as POWs shall be
forwarded as rapidly as possible to the National POW Information Bureau established inaccordance with Article 122 of the GPW. 820
The death certificates or certified lists shall show:•

particulars of identity, as set out in the third paragraph of Article 17 of the GPW, that arelisted on the POW’s identity card;o such as, surname; first names; rank; date of birth; and army, regimental, personal,or serial number or equivalent information; 821•

the date and place of death;•the cause of death;•the date and place of burial;•

where applicable, the fact of, and reasons for, cremation; 822 and•all particulars necessary to identify the graves or inurnment/columbarium location. 823
9.34.3 Burial or Cremation and Inurnment.

9.34.3.1 Medical Examination Before Burial or Cremation. The burial or
cremation of a POW shall be preceded by a medical examination of the body with a view toconfirming death and enabling a report to be made and, where necessary, establishing identity. 824
For example, if a POW’s identity was not established before death, and the identity cannot be
818

Refer to § 9.21.2 (Legal Documents and Assistance).

819

GPW art. 120 (“[I]n all cases, after death, the will shall be transmitted without delay to the Protecting Power; acertified copy shall be sent to the Central Agency.”).
820

GPW art. 120 (“Death certificates in the form annexed to the present Convention, or lists certified by a
responsible officer, of all persons who die as prisoners of war shall be forwarded as rapidly as possible to the
Prisoner of War Information Bureau established in accordance with Article 122.”).
821

Refer to § 9.4.3 (Issue of Identification Cards to Persons Liable to Become POWs).

822

Refer to § 9.34.3.3 (Cremation).

823

GPW art. 120 (“The death certificates or certified lists shall show particulars of identity as set out in the thirdparagraph of Article 17, and also the date and place of death, the cause of death, the date and place of burial and allparticulars necessary to identity the graves.”).
824
GPW art. 120 (“The burial or cremation of a prisoner of war shall be preceded by a medical examination of the
body with a view to confirming death and enabling a report to be made and, where necessary, establishingidentity.”).

644

established, the report should include information that will enable the Power on which the POW
depended to establish his or her identity (e.g., examination of teeth, fingerprints, photograph,
DNA samples). 825
9.34.3.2 Burial. The detaining authorities shall ensure that POWs who have diedin captivity are honorably buried, if possible according to the rites of the religion to which they
belonged. 826
Wherever possible, deceased POWs who depended on the same Power shall be interredin the same place. 827 Deceased POWs shall be buried in individual graves unless unavoidable
circumstances require the use of collective graves. 828 For example, an epidemic or military
operations may require the Detaining Power to undertake collective burials in the interest of
public health because individual graves are not possible due to lack of time and resources. 829
9.34.3.3 Cremation. Bodies of POWs may be cremated only for imperative
reasons of hygiene, on account of the religion of the deceased, or in accordance with his or her
express wish to this effect. 830 In case of cremation, the fact shall be stated and the reasons givenin the death certificate of the deceased. 831
9.34.4 Maintenance and Records of Graves and Ashes. The detaining authorities shallensure that the graves of POWs who have died in captivity are respected, suitably maintained,
and marked so as to be found at any time. 832
9.34.4.1 Records Held by the Graves Registration Service. In order that graves
may always be found, all particulars of burials and graves shall be recorded with a Graves

825

GPW COMMENTARY 564-65 (“If, however, a prisoner’s identity remains in doubt (for instance, if he has not yet
been questioned as provided in Article 17), the doctor will follow the same procedure as for those who have fallen
on the battlefield: examination of papers found in the clothing of the dead man, questioning of his comrades or, if
that is not possible, other methods must be adopted in order to enable the adverse Party to establish his identity, e.g.
measurement and description of the body and its physical features, examination of the teeth, finger-prints,
photograph, etc..”).
826

GPW art. 120 (“The detaining authorities shall ensure that prisoners of war who have died in captivity arehonourably buried, if possible according to the rites of the religion to which they belonged, and that their graves arerespected, suitably maintained and marked so as to be found at any time.”).
827

GPW art. 120 (“Wherever possible, deceased prisoners of war who depended on the same Power shall be interredin the same place.”).
828

GPW art. 120 (“Deceased prisoners of war shall be buried in individual graves unless unavoidable circumstances
require the use of collective graves.”).
829

Compare § 10.34.3 (Burial or Cremation and Inurnment).

830

GPW art. 120 (“Bodies may be cremated only for imperative reasons of hygiene, on account of the religion of thedeceased or in accordance with his express wish to this effect.”).
831

GPW art. 120 (“In case of cremation, the fact shall be stated and the reasons given in the death certificate of thedeceased.”).
832

GPW art. 120 (“The detaining authorities shall ensure … that their graves are respected, suitably maintained andmarked so as to be found at any time.”).

645

Registration Service established by the Detaining Power. 833 Lists of graves and particulars of the
POWs interred in cemeteries and elsewhere shall be transmitted to the Power on which such
POWs depended. 834 Responsibility for the care of these graves and for records of any
subsequent moves of the bodies shall rest on the Power controlling the territory, if that Power is a
Party to the GPW. 835
The Graves Registration Service shall also identify, record, and respectfully keep theashes until they can be disposed of in accordance with the wishes of the home country. 836
The GWS also provides for the Graves Registration Service to record graves of persons
belonging to enemy military forces who died but were never held as POWs. 837
9.34.5 Inquiries Into Death or Serious Injury of POWs in Certain Cases. Every death orserious injury of a POW caused or suspected to have been caused by a sentry, another POW, or
any other person, as well as any death the cause of which is unknown, shall be immediately
followed by an official inquiry by the Detaining Power. 838 A communication on this subject
shall be sent immediately to the Protecting Power. 839
Serious injury, in many cases, may be understood to mean an injury that requires inpatient treatment in a hospital or infirmary. 840
833

GPW art. 120 (“In order that graves may always be found, all particulars of burials and graves shall be recordedwith a Graves Registration Service established by the Detaining Power.”).
834

GPW art. 120 (“Lists of graves and particulars of the prisoners of war interred in cemeteries and elsewhere shallbe transmitted to the Power on which such prisoners of war depended.”).
835

GPW art. 120 (“Responsibility for the care of these graves and for records of any subsequent moves of the bodies
shall rest on the Power controlling the territory, if a Party to the present Convention.”).
836

GPW art. 120 (“These provisions shall also apply to the ashes, which shall be kept by the Graves Registration
Service until proper disposal thereof in accordance with the wishes of the home country.”).
837

Refer to § 7.7.5 (Graves Registration Service).

838

GPW art. 121 (“Every death or serious injury of a prisoner of war caused or suspected to have been caused by asentry, another prisoner of war, or any other person, as well as any death the cause of which is unknown, shall be
immediately followed by an official enquiry by the Detaining Power.”). For example, FINAL REPORT ON THE
PERSIAN GULF WAR 578 (“Eight EPW died in US custody; all as a result of injuries or sickness contracted prior tocapture. Five died from combat injuries, one from malnutrition/dehydration, and two from unknown causes. Three
US transferred prisoners died in Saudi camps due to wounds received while interned in the Saudi controlled camps.
These deaths were investigated and reported through command channels to the ICRC, as required by Articles 120,
122, and 123, GPW.”); 2004 UK MANUAL ¶8.176, footnote 452 (“In the Falklands conflict, an Argentinean PW wasshot and killed to prevent an attempt to sabotage the captured submarine Santa Fé. The British notified theArgentinian authorities through the ICRC and established a board of inquiry to establish the facts.”).
839

GPW art. 121 (“A communication on this subject shall be sent immediately to the Protecting Power.”).

840

GPW COMMENTARY 570 (“What is meant by ‘serious injury’? At the 1949 Diplomatic Conference one
delegation suggested that it should be made clear that the term referred to an injury ‘as a result of which the prisoner
requires in-patient treatment in a hospital or infirmary’; this definition was not approved, however, and it might
indeed have made the application of the Article too rigid. An injury may be not at all serious and neverthelessrequire treatment in the infirmary. Furthermore, it would have been dangerous to make the opening of an enquiry
depend on whether or not the patient had been admitted to hospital for treatment. The two things must remain quite
separate.”). Compare § 10.34.5 (Inquiries Into Death or Serious Injury of Internees in Certain Cases).

646

Statements shall be taken from witnesses, especially from those who are POWs, and areport including such statements shall be forwarded to the Protecting Power. 841
If the inquiry indicates the guilt of one or more persons, the Detaining Power shall takeall measures for the prosecution of the person or persons responsible. 842
9.35 EXCHANGES AND OTHER RELEASE AND REPATRIATION OF POWS DURING HOSTILITIES
9.35.1 Exchange of POWs During Hostilities Through Cartel Agreements. The exchange
of POWs, other than those whose repatriation is required by the GPW, may be effected byagreement between the belligerents. 843 Such agreements have been called cartels. 844
The modern practice in this area has been infrequent. 845
As a general principle, the exchange of POWs, other than those whose repatriation isrequired by the GPW, is an act of convenience to both belligerents. 846
The conditions for exchange are generally prescribed in the cartel, and exchanges neednot be on the basis of number-for-number, or rank-for-rank. 847

841

GPW art. 121 (“Statements shall be taken from witnesses, especially from those who are prisoners of war, and areport including such statements shall be forwarded to the Protecting Power.”).
842

GPW art. 121 (“If the enquiry indicates the guilt of one or more persons, the Detaining Power shall take allmeasures for the prosecution of the person or persons responsible.”).
843

For example, Edward Bates, Attorney General, Construction of a Cartel, Oct. 18, 1862, 10 OPINIONS OF THE
ATTORNEY GENERAL 357 (1868) (“Following your verbal direction, I have carefully examined the cartel for theexchange of prisoners of war, agreed to by the parties on the 22d of July, 1862, at Haxall’s Landing, on James river,
Virginia, and signed, respectively, by Major General Dix and Major General Hill, as the same is embodied in‘General Order No. 142’ issued from the War Department, September 25, 1862.”).
844

Refer to § 12.7 (Cartels).

845

For example, 1958 UK MANUAL ¶250 and note 3(b) (“In modern war between civilised States, an exchange ofprisoners will rarely be carried out except by agreement between the governments concerned. … In the First andSecond World War no such exchanges took place. During the latter war some measured agreement was reached
between Germany, the United Kingdom, the U.S.A. and Switzerland, whereby a number of prisoners of war of thethree belligerent States interned in Switzerland were repatriated. No formal agreement was drawn up, and thenegotiations were conducted by the diplomatic representatives of the belligerents direct with the Swiss Government.
Germany insisted on a distinction between interned aircrews and other prisoners of war so that a certain number ofGerman prisoners of war could be repatriated for every United States airman repatriated. Switzerland as a neutral
State refused to permit repatriation except on a basis agreeable to all the belligerents concerned. Agreement wasreached and repatriation was carried out on the basis of the German demand.”).
846

LIEBER CODE art. 109 (“The exchange of prisoners of war is an act of convenience to both belligerents. If nogeneral cartel has been concluded, it can not be demanded by either of them. No belligerent is obliged to exchange
prisoners of war.”).
847

1956 FM 27-10 (Change No. 1 1976) ¶197 (“Exchange of prisoners of war, other than those whose repatriation isrequired by GPW, may be effected by agreement between the belligerents. No belligerent is obliged to exchange
prisoners of war, except if a general cartel requiring such exchange has been concluded. The conditions forexchange are as prescribed by the parties thereto, and exchanges need not necessarily be on the basis of number for
number or rank for rank.”).

647

9.35.2 Release and Repatriation of POWs Not on the Basis of Exchange. Even when not
required by the GPW or done on the basis of an exchange, a Detaining Power may release andrepatriate POWs during hostilities to the Power to which they belong. 848
Such release and repatriation of POWs during hostilities may be accomplished between
governments through agreements. In any case, POWs subject to release and repatriation should
be interviewed by representatives of the Protecting Power or the ICRC to ensure that their return
is voluntary. 849
9.36 DIRECT REPATRIATION AND ACCOMMODATION IN NEUTRAL COUNTRIES DURING HOSTILITIESThe GPW provides for the direct repatriation or accommodation in neutral countries ofcertain wounded and sick POWs during hostilities.
POWs who meet with accidents shall, unless the injury is self-inflicted, have the benefitof the provisions of the GPW as regards repatriation or accommodation in a neutral country. 850
States may also conclude agreements with a view to the direct repatriation or internment
in a neutral country of able-bodied POWs who have undergone a long period of captivity. 851
9.36.1 Direct Repatriation of Seriously Wounded, Injured, or Sick POWs. Parties to aconflict have an obligation to send back to their own country, regardless of number or rank,certain seriously wounded and seriously sick POWs, after having cared for them until they are fit
enough to travel. 852 Before the 1929 GPW, such repatriations occurred in accordance withspecific agreements. 853 Under the GPW, such repatriations have been conducted as part of848

For example, SYLVIE-STOYANKA JUNOD, INTERNATIONAL COMMITTEE OF THE RED CROSS, PROTECTION OF THE
VICTIMS OF ARMED CONFLICT FALKLAND-MALVINAS ISLANDS: INTERNATIONAL HUMANITARIAN LAW AND
HUMANITARIAN ACTION (1982) 31 (1984) (“The Falkland-Malvinas Islands’ conflict provides a rare example ofprisoners being released even before the end of active hostilities. The British soldiers and the group of civilians
captured by the Argentine forces when they landed on the island of South Georgia and on the Falkland-Malvinas
archipelago were released almost immediately, via Montevideo, without the ICRC’s participation. In May and June,the ICRC took part in several release operations: … . At the end of the hostilities, i.e. after 14 June 1982, a great
number of prisoners were released in several groups over one month.”).
849

Compare § 9.37.4.2 (POWs Who Resist Repatriation).

850

GPW art. 114 (“Prisoners of war who meet with accidents shall, unless the injury is self-inflicted, have thebenefit of the provisions of this Convention as regards repatriation or accommodation in a neutral country.”).
851

GPW art. 109 (“They may, in addition, conclude agreements with a view to the direct repatriation or internment
in a neutral country of able-bodies prisoners of war who have undergone a long period of captivity.”).
852

GPW art. 109 (“Subject to the provisions of the third paragraph of this Article, Parties to the conflict are bound tosend back to their own country, regardless of number or rank, seriously wounded and seriously sick prisoners ofwar, after having cared for them until they are fit to travel, in accordance with the first paragraph of the following
Article.”).
853

For example, 1958 UK MANUAL ¶255 note 1 (“In June, 1918, an agreement for the repatriation of prisoners of
war on a large scale was concluded between Lord Cave’s mission and a German military mission. During theSecond World War repatriation of the sick and wounded was carried out by the belligerents in western Europe inaccordance with the provisions of the 1929 Convention. There was no repatriation of sick and wounded between
Germany and the U.S.S.R., or between Japan and the Allies.”).

648

exchanges or on a unilateral basis. 854
No sick or injured POW who is eligible for repatriation under the first paragraph of
Article 109 of the GPW may be repatriated against his or her will during hostilities. 855
9.36.1.1 Categories of POWs Eligible for Direct Repatriation. The following
categories of POWs shall be repatriated directly:•

incurably wounded and sick whose mental or physical fitness seems to have been gravely
diminished;•wounded and sick who, according to medical opinion, are not likely to recover within one
year, whose condition requires treatment, and whose mental or physical fitness seems tohave been gravely diminished; and•wounded and sick who have recovered, but whose mental or physical fitness seems tohave been gravely and permanently diminished. 856

9.36.2 Accommodation in Neutral Countries. Throughout the duration of hostilities,
parties to the conflict shall endeavor, with the cooperation of the neutral Powers concerned, tomake arrangements for the accommodation in neutral countries of certain sick and wounded
POWs as discussed below. 857 This provision of the GPW reflected prior State practice. 858

854

For example, LEVIE, POWS, 409-10 (“Subsequent to 1949 a number of occasions arose warranting theimplementation of the provisions of the first paragraph of Article 109. In February 1953 the United Nations
Command in Korea proposed the exchange of seriously wounded and seriously sick prisoners of war pursuant to that
Article, a proposal which the North Koreans and Chinese Communists accepted. During April and May 1953, some
6,640 North Korean and Chinese prisoners of war who had been found to be seriously wounded or seriously sickwithin the meaning of those terms as used in the Convention were exchanged for 684 members of the armed forcescomposing the United Nations Command. During the 1956 Middle East conflict, Israel repatriated a number ofseriously wounded Egyptian prisoners of war in the course of the hostilities. During the 1962 Sino-Indian conflict,the People's Republic of China repatriated a number of seriously wounded or seriously sick Indian prisoners ofwar.”).
855

GPW art. 109 (“No sick or injured prisoner of war who is eligible for repatriation under the first paragraph of this
Article, may be repatriated against his will during hostilities.”).
856

GPW art. 110 (“The following shall be repatriated direct: (1) Incurably wounded and sick whose mental or
physical fitness seems to have been gravely diminished. (2) Wounded and sick who, according to medical opinion,
are not likely to recover within one year, whose condition requires treatment and whose mental or physical fitness
seems to have been gravely diminished. (3) Wounded and sick who have recovered, but whose mental or physicalfitness seems to have been gravely and permanently diminished.”).
857

GPW art. 109 (“Throughout the duration of hostilities, Parties to the conflict shall endeavour, with thecooperation of the neutral Powers concerned, to make arrangements for the accommodation in neutral countries ofthe sick and wounded prisoners of war referred to in the second paragraph of the following Article.”).
858

For example, 1958 UK MANUAL ¶255 note 1 (“During the First World War agreements were arrived at between
the Allies and Germany early in 1916 whereby all wounded prisoners of war held by their respective Governments,
as well as those suffering from any one of twenty specified diseases or infirmities, were to be transferred to
Switzerland. Later, agreements were arrived at whereby those who had been in captivity for not less than eighteenmonths and who fulfilled certain conditions as regards age and citizenship were to be repatriated or interned in aneutral country. Some 16,000 British and German prisoners of war were interned in Holland. In March, 1918, it

649

9.36.2.1 Categories of Wounded, Injured, or Sick to Be Accommodated in a
Neutral State. The following categories of POWs may be accommodated in a neutral country:•

wounded, injured, or sick whose recovery may be expected within one year of the date of
the wound or the beginning of the illness, if treatment in a neutral country might increase
the prospects of a more certain and speedy recovery; and•POWs whose mental or physical health, according to medical opinion, is seriously
threatened by continued captivity, but whose accommodation in a neutral country mightremove such a threat. 859

9.36.3 Agreements to Intern POWs in Neutral Territory. The Detaining Power, thePower on which the POWs depend, and a neutral Power agreed upon by these two Powers, shallendeavor to conclude agreements that will enable POWs to be interned in the territory of thatneutral Power until the close of hostilities. 860 For example, if the Detaining Power were unable
to comply with the minimum standards in the GPW for the treatment of POWs, then it would
seek to negotiate such agreements with the Power on which the POWs depend and a neutral
Power. 861
9.36.3.1 Repatriation From a Neutral State. The conditions that POWs
accommodated in a neutral country must fulfill in order to permit their repatriation shall be fixed,
as shall likewise their status, by agreement between the Powers concerned. 862 In general, POWs
who have been accommodated in a neutral country, and who belong to the following categories,
should be repatriated:•

those whose health has deteriorated so far as to fulfill the conditions for direct

was stated that 26,000 prisoners of war of the several belligerents were being cared for in Switzerland. Of these,
16,000 were British, French and Belgian, while 10,000 were German; besides these, some 500,000 invalid and sickprisoners of war of various nationalities had been exchanged and repatriated through Switzerland since thebeginning of the war.”).
859

GPW art. 110 (“The following may be accommodated in a neutral country: (1) Wounded and sick whose
recovery may be expected within one year of the date of the wound or the beginning of the illness, if treatment in aneutral country might increase the prospects of a more certain and speedy recovery. (2) Prisoners of war whose
mental or physical health, according to medical opinion, is seriously threatened by continued captivity, but whose
accommodation in a neutral country might remove such a threat.”).
860

GPW art. 111 (“The Detaining Power, the Power on which the prisoners of war depend, and a neutral Poweragreed upon by these two Powers, shall endeavour to conclude agreements which will enable prisoners of war to beinterned in the territory of the said neutral Power until the close of hostilities.”).
861

See II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 365 (“The Committee consideredthat it was necessary to insert a new Article between Articles 101 and 102, in order to provide for the possibility ofagreements between the Detaining Power, the Power on which the prisoners of war depend, and a neutral Power,
permitting the internment of prisoners of war on neutral territory. This decision, which arose out of a proposal by
the Canadian Delegation, aims at ensuring a reasonable standard of living for all prisoners of war, in the event of the
Detaining Power being unable, for any reason, to comply with the minimum standards regarding the treatment ofprisoners of war laid down in the Convention.”).

862

GPW art. 110 (“The conditions which prisoners of war accommodated in a neutral country must fulfil in order topermit their repatriation shall be fixed, as shall likewise their status, by agreement between the Powers concerned.”).

650

repatriation; 863 and•those whose mental or physical powers remain, even after treatment, considerably
impaired. 864

9.36.4 Lack of Special Agreements to Determine Cases of Disablement or Sickness
Entailing Direct Repatriation or Accommodation in a Neutral Country. If no special agreements
are concluded between the parties to the conflict concerned to determine the cases of disablement
or sickness entailing direct repatriation or accommodation in a neutral country, such cases shallbe settled in accordance with the principles laid down in the Model Agreement concerning direct
repatriation and accommodation in neutral countries of wounded and sick POWs and in theRegulations concerning Mixed Medical Commissions annexed to the GPW (GPW Annex II). 865
9.36.5 Mixed Medical Commissions. Upon the outbreak of hostilities, Mixed Medical
Commissions shall be appointed to examine sick and wounded POWs, and to make allappropriate decisions regarding them. 866 The appointment, duties, and functioning of theseCommissions shall be in conformity with the provisions of the Regulations annexed to the GPW(GPW Annex II). 867
9.36.5.1 Examination Not Necessary for Manifestly Seriously Injured or Sick
POWs. POWs who, in the opinion of the medical authorities of the Detaining Power, aremanifestly seriously injured or seriously sick may be repatriated without having to be examinedby a Mixed Medical Commission. 868
9.36.5.2 POWs Entitled to Present Themselves for Examination Before theCommission. Besides those who are designated by the medical authorities of the Detaining
Power, wounded or sick POWs belonging to the categories listed below shall be entitled topresent themselves for examination by the Mixed Medical Commissions provided for in Article
112 of the GPW:
863

Refer to § 9.36.1.1 (Categories of POWs Eligible for Direct Repatriation).

864

GPW art. 110 (“In general, prisoners of war who have been accommodated in a neutral country, and who belong
to the following categories, should be repatriated: (1) those whose state of health has deteriorated so as to fulfil theconditions laid down for direct repatriation; (2) those whose mental or physical powers remain, even after treatment,
considerably impaired.”).
865

GPW art. 110 (“If no special agreements are concluded between the Parties to the conflict concerned, todetermine the cases of disablement or sickness entailing direct repatriation or accommodation in a neutral country,
such cases shall be settled in accordance with the principles laid down in the Model Agreement concerning direct
repatriation and accommodation in neutral countries of wounded and sick prisoners of war and in the Regulations
concerning Mixed Medical Commissions annexed to the present Convention.”).
866

GPW art. 112 (“Upon the outbreak of hostilities, Mixed Medical Commissions shall be appointed to examine
sick and wounded prisoners of war, and to make all appropriate decisions regarding them.”).
867

GPW art. 112 (“The appointment, duties and functioning of these Commissions shall be in conformity with theprovisions of the Regulations annexed to the present Convention.”).
868
GPW art. 112 (“However, prisoners of war who, in the opinion of the medical authorities of the Detaining Power,
are manifestly seriously injured or seriously sick, may be repatriated without having to be examined by a Mixed
Medical Commission.”).

651

•

Wounded and sick proposed by a physician or surgeon who is of the same nationality, ora national of a party to the conflict allied with the Power on which these POWs depend,
and who exercises his or her functions in the camp;•

Wounded and sick proposed by their POW Representative; and•Wounded and sick proposed by the Power on which they depend, or by an organization
duly recognized by this Power and giving assistance to the POWs. 869

POWs who do not belong to one of the three foregoing categories may neverthelesspresent themselves for examination by Mixed Medical Commissions, but shall be examined only
after those belonging to the three foregoing categories. 870
9.36.5.3 Observers at the Examination. The physician or surgeon of the samenationality as the POWs who present themselves for examination by the Mixed Medical
Commission, and the POW Representative of these POWs, shall have permission to be present at
the examination. 871
9.36.6 Costs of Repatriation or Transportation to a Neutral Country During Hostilities.
The costs of repatriating POWs or of transporting them to a neutral country are borne, from thefrontiers of the Detaining Power, by the Power on which the POWs depend. 872
9.36.7 Employment of Persons Who Have Been Repatriated. No repatriated person may
be employed on active military service. 873
9.36.7.1 No Repatriated Person. The rule against employment on active military
service only applies to POWs repatriated by the Detaining Power pursuant to Articles 109 and110 of the GPW. 874 For example, able-bodied POWs who are voluntarily repatriated by the869

GPW art. 113 (“Besides those who are designated by the medical authorities of the Detaining Power, wounded orsick prisoners of war belonging to the categories listed below shall be entitled to present themselves for examinationby the Mixed Medical Commissions provided for in the foregoing Article: (1) Wounded and sick proposed by aphysician or surgeon who is of the same nationality, or a national of a Party to the conflict allied with the Power onwhich the said prisoners depend, and who exercises his functions in the camp. (2) Wounded and sick proposed bytheir prisoners’ representative. (3) Wounded and sick proposed by the Power on which they depend, or by anorganization duly recognized by the said Power and giving assistance to the prisoners.”).
870

GPW art. 113 (“Prisoners of war who do not belong to one of the three foregoing categories may neverthelesspresent themselves for examination by Mixed Medical Commissions, but shall be examined only after thosebelonging to the said categories.”).
871

GPW art. 113 (“The physician or surgeon of the same nationality as the prisoners who present themselves for
examination by the Mixed Medical Commission, likewise the prisoners' representative of the said prisoners, shallhave permission to be present at the examination.”).
872

GPW art. 116 (“The cost of repatriating prisoners of war or of transporting them to a neutral country shall beborne, from the frontiers of the Detaining Power, by the Power on which the said prisoners depend.”).
873

GPW art. 117 (“No repatriated person may be employed on active military service.”).

874

See 1958 UK MANUAL ¶262 note 1 (“This article repeats the provisions of the 1929 Convention, Art. 74, which
was considered to apply only to prisoners who were repatriated sick or wounded and not to exchanges byagreements made outside the Convention. This would also seem to be the proper scope of Art. 117.”); GPW

652

unilateral decision of the Detaining Power during hostilities may be employed on active military
service. 875
9.36.7.2 Active Military Service. Not all military service is “active military
service.” Repatriated persons may remain employed on military service. 876 What “active
military service” they may engage in after repatriation may be the subject of agreements pursuant
to Articles 109 and 110 of the GPW. Absent such agreements, active military service may beunderstood as broadly covering any participation, whether direct or indirect, in armed operations
against the former Detaining Power or its allies, but to exclude medical work or strictly
administrative duties. 877
9.37 RELEASE AND REPATRIATION AFTER HOSTILITIESPOWs shall be released and repatriated without delay after the cessation of active
hostilities. 878
9.37.1 Agreements on POW Release and Repatriation. The release and repatriation of
POWs generally have been addressed by peace treaties or other agreements among belligerents

COMMENTARY 538 (“The Article covers prisoners of war repatriated by the Detaining Power pursuant to Articles
109 and 110, that is to say seriously wounded or seriously sick prisoners of war whom the Detaining Power isrequired to repatriate regardless of number or rank (Article 109, paragraph 1), prisoners of war accommodated in aneutral country and subsequently repatriated following an agreement between the Powers concerned (Article 110,
paragraph 2), and lastly, able-bodied prisoners of war who have undergone a long period of captivity and are
repatriated by agreement between the Powers concerned (Article 109, paragraph 2).”).
875

2004 UK MANUAL ¶8.155.1 footnote 417 (“Despite its apparent general application, Art 117 is taken to apply
only to PW repatriated under the special rules laid down in Arts 109-110 (see Pictet, Commentary, vol III, 538). It
does not apply to able-bodied PW who are voluntarily repatriated by the unilateral decision of the detaining power
during hostilities. The UK sent members of the Royal Marine garrison of the Falkland Islands, who had been
captured and then repatriated by Argentina, back into combat with the Task Force that re-took the Islands in 1982.”).

876

See II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 573 (“Articles 106 (Costs) and107 (Activity after repatriation) reproduce the corresponding provisions of the 1929 Convention. It may bementioned, however, that the word ‘active’ in the expression ‘active military service’ in Article 107 gave rise to long
discussion. Some Delegations wished to see it deleted; others were in favour of keeping it because it is usual formany repatriated prisoners of war to depend on the administrative service of armies. Finally, the proposal to delete
the word was rejected by the Committee by a small majority.”).

877

See GPW COMMENTARY 539 (“In interpreting this phrase, the spirit of the Convention rather than national
legislation should serve as a guide. It is, of course, difficult to give a precise definition, but the expression may beconsidered as broadly covering any participation, whether direct or indirect, in armed operations against the former
Detaining Power or its allies. In effect, Article 117 forbids any repatriated person to serve in units which form partof the armed forces but does not prevent their enrolment in unarmed military units engaged solely in auxiliary,complementary or similar work. In concluding agreements pursuant to Articles 109 and 110, the Parties concerned
are at liberty to stipulate what is meant by ‘active’ service in the particular case concerned.”); 1956 FM 27-10(Change No. 1 1976) ¶196b (“Although it is not possible to frame any comprehensive rule concerning what
constitutes ‘active military service,’ Article 117 does not preclude a repatriated person from performing medical or
strictly administrative duties but does foreclose service in combat against the power formerly detaining theindividual or an ally thereof.”).
878

GPW art. 118 (“Prisoners of war shall be released and repatriated without delay after the cessation of active
hostilities.”).

653

at the end of the war. 879 For example, agreements may address the apportionment of costs orcommissions to search for dispersed POWs. 880
In the absence of stipulations to the above effect in any agreement concluded between theparties to the conflict with a view to the cessation of hostilities, or failing any such agreement,each of the Detaining Powers shall itself establish and execute without delay a plan ofrepatriation in conformity with the principle laid down in paragraph 1 of the Article 118 of the
GPW. 881 Thus, once active hostilities have ceased, the Detaining Powers must release andrepatriate POWs, even if there is no specific agreement regarding the release and repatriation of
POWs, or even if a formal peace agreement ending the war has not yet been concluded. 882
During the process of releasing and repatriating POWs, it is proper to expect that eachparty’s conduct with respect to the repatriation of POWs will be reasonable and broadlycommensurate with the conduct of the other. 883 For example, it would not be reasonable toexpect that a State would release all of the POWs it holds without assurance that its own

879

For example, FINAL REPORT ON THE PERSIAN GULF WAR 586 (“In March [of 1991], Coalition forces and Iraq
signed a memorandum of understanding detailing administrative procedures for the repatriation of the remaining
EPW, under ICRC auspices. On 4 March, Iraq released the first group of 10 Coalition POWs, six of whom were
American. On 6 March, the US reciprocated by releasing 294 EPWs to the ICRC for repatriation to Iraq.”);Agreement between the Commander-in-Chief, United Nations Command, on the one hand, and the Supreme
Commander of the Korean People’s Army and the Commander of the Chinese People’s Volunteers, on the other
hand, Concerning a Military Armistice in Korea art. 51, Jul. 27, 1953, 29 DEPARTMENT OF STATE BULLETIN 132,
137 (Aug. 3, 1953) (“The release and repatriation of all prisoners of war held in the custody of each side at the time
this armistice agreement becomes effective shall be effected in conformity with the following provisions agreed
upon by both sides prior to the signing of this Armistice Agreement.”).
880

Refer to § 9.37.6 (Costs of Repatriation at the Close of Hostilities); § 9.37.5 (Commissions to Search for
Dispersed POWs).
881

GPW art. 118 (“In the absence of stipulations to the above effect in any agreement concluded between the Parties
to the conflict with a view to the cessation of hostilities, or failing any such agreement, each of the Detaining Powers
shall itself establish and execute without delay a plan of repatriation in conformity with the principle laid down in
the foregoing paragraph.”).
882

LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 613 (§275) (“That provision [of Article 118 of the GPW]
was inspired by the experience of the situation as it developed after the Second World War when, following upon
the unconditional surrender of Italy, Germany, and Japan, no treaty of peace was concluded between the principal
belligerents for some years and when public opinion in many countries viewed with disapproval the continued
detention of prisoners of war at a time when there was no longer any reasonable possibility that hostilities might beresumed.”).

883

Eritrea Ethiopia Claims Commission, Partial Award: Prisoners of War, Eritrea’s Claim 17, ¶149 (Jul. 1, 2003)(“The Commission finds that, given the character of the repatriation obligation and state practice, it is appropriate toconsider the behavior of both Parties in assessing whether or when Ethiopia failed to meet its obligations under
Article 118. In the Commission’s view, Article 118 does not require precisely equivalent behavior by each Party.
However, it is proper to expect that each Party’s conduct with respect to the repatriation of POWs will be reasonable
and broadly commensurate with the conduct of the other. Moreover, both Parties must continue to strive to ensurecompliance with the basic objective of Article 118 – the release and repatriation of POWs as promptly as possible
following the cessation of active hostilities. Neither Party may unilaterally abandon the release and repatriation
process or refuse to work in good faith with the ICRC to resolve any impediments.”).

654

personnel held by the enemy will also be released. 884
9.37.2 Cessation of Active Hostilities. According to Lauterpacht, the phrase “cessationof active hostilities” probably does not refer to a situation that leaves open the possibility of a
resumption of struggle, but to a situation in which it is out of the question for hostilities toresume. 885 It is the complete end of the fighting with clearly no probability of resumption of
hostilities in the near future. 886 The cessation of active hostilities may also be understood as
describing the point in time when belligerents feel sufficiently at ease about the future that they
are willing to release and repatriate all POWs. 887 The cessation of active hostilities may result
from a capitulation or agreement, but such an agreement is not required if there is no prospectthat hostilities will resume.
9.37.3 Without Delay. The GPW provides that release and repatriation take place
without delay. This requirement, however, does not affect the practical arrangements that must
be made to ensure that repatriation takes place in a safe and orderly manner in accordance withthe requirements of the GPW. 888

884

Eritrea Ethiopia Claims Commission, Partial Award: Prisoners of War, Eritrea’s Claim 17, ¶148 (Jul. 1, 2003)(“There is also a fundamental question whether and to what extent each Party’s obligation to repatriate depends
upon the other’s compliance with its repatriation obligations. The language of Article 118 is absolute.
Nevertheless, as a practical matter, and as indicated by state practice, any state that has not been totally defeated isunlikely to release all the POWs it holds without assurance that its own personnel held by its enemy will also be
released, and it is unreasonable to expect otherwise. At the hearing, distinguished counsel for Eritrea suggested thatthe obligation to repatriate should be seen as unconditional but acknowledged the difficulty of the question and thecontrary arguments under general law.”).
885

LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 613 (§275) (“Probably the phrase ‘cessation of active
hostilities’ in the sense of Article 118 [of the GPW] refers not to suspension of hostilities in pursuance of an
ordinary armistice which leaves open the possibility of a resumption of the struggle, but to a cessation of hostilities
as the result of total surrender or of such circumstances or conditions of an armistice as render it out of the question
for the defeated party to resume hostilities.”).

886

CHRISTIANE SHIELDS DELESSERT, RELEASE AND REPATRIATION OF PRISONERS OF WAR AT THE END OF ACTIVE
HOSTILITIES: A STUDY OF ARTICLE 118, PARAGRAPH 1 OF THE THIRD GENEVA CONVENTION RELATIVE TO THE
TREATMENT OF PRISONERS OF WAR 71-72 (1977) (“Is the phrase ‘end of active hostilities’ to be interpreted as
referring to situations where it is clear that active hostilities have definitely stopped and will not be resumed, forexample, as the result of surrender, or can it be interpreted in a more flexible way so as to take account of situations
where the pattern has been an alternation of military operations and peaceful periods? If, once again, one refers to
the Second World War which directly influenced the specific wording of Article 118, it would seem that what wasenvisaged was a situation of complete end of the war, if not in a legal sense, at least in a material one with clearly no
probability of resumption of hostilities in a near future. The end of war for the purpose of the application of Article
118, meant the end of military operations. In the light of the history of Article 118, this would seem to be the properinterpretation to be given to it.”).
887

Edward R. Cummings, Acting Assistant Legal Adviser for African Affairs, Memorandum of Law to Chester A.
Crocker, Assistant Secretary of State for African Affairs, Sept. 21, 1984, III CUMULATIVE DIGEST OF UNITED STATESPRACTICE IN INTERNATIONAL LAW 1981-1988, 3471, 3474 (Under the GPW, “the ‘cessation’ concept describes thepoint in time that belligerents feel sufficiently … [at ease] about the future that they are willing to release all
prisoners of war and civilian internees.”) (alterations to the quote in original).
888

GPW COMMENTARY 550 (“The text as finally adopted states that the repatriation must take place ‘without delay
after the cessation of active hostilities’. This requirement does not, of course, affect the practical arrangements
which must be made so that repatriation may take place in conditions consistent with humanitarian rules and the655For example, the availability of manpower and transportation to conduct the repatriation,
continuing military operations in other theaters, or the ability of countries to receive POWs inlarge numbers, may all increase the time required to conduct the release and repatriation. 889 The
security situation in the country in which POWs are to be released may also be an importantfactor. 890 In addition, time may be needed based on the medical condition of the POWs or inorder to conduct interviews to ensure that repatriation is voluntary.
9.37.4 POWs Whom the Detaining Power Is Not Required to Repatriate.
9.37.4.1 Persons Illegally Enrolled in Enemy Forces and Deserters. The
obligation to repatriate does not apply to persons who have been illegally enrolled in the armed
forces of the enemy (for example, the inhabitants of occupied territories who have been forced toenlist in the military of the Occupying Power), or to persons who have deserted to the otherside. 891
9.37.4.2 POWs Who Resist Repatriation. The Detaining Power is not required torepatriate forcibly POWs who do not wish to be repatriated.
Although the GPW provides that POWs may not renounce the rights secured to them by
the GPW, 892 this principle is not violated by the POW rejecting repatriation and requesting
asylum, if it is established in a satisfactory manner that the POW is making an informed,

requirements of the Convention, as defined in Article 119, paragraph 1, below, which refers to Articles 46 to 48(relating to transfer).”).
889

For example, FINAL REPORT ON THE PERSIAN GULF WAR 586 (“After the cease fire, expeditious repatriation of
EPWs was a high priority and Coalition officials promptly began talks with Iraqi representatives on EPW
exchanges. Iraq said it was anxious to return Coalition POWs, but was unwilling to accept large numbers of EPWs
in return, saying it was not prepared to receive them.”); Martin Tollefson, Enemy Prisoners of War, 32 IOWA LAWREVIEW 51, 74 (1946) (“Because of manpower and transportation shortages, because the war was still being fought
against Japan, and because of the inability on the part of the European and Mediterranean theaters to receive
prisoners of war from the United States in large numbers, the prisoner-of-war repatriation program did not assume
large proportions until after V-J Day.”).
890

For example, EARL F. ZIEMKE, THE U.S. ARMY IN THE OCCUPATION OF GERMANY, 1944-1946, 293 (1975)(“SHAEF could not authorize a ‘blanket release’ of German forces, Eisenhower replied, because their discharge had
to be ‘strictly controlled in order to prevent widespread disorder, or other conditions which military government
agencies will be unable to cope with’; the release of the categories already approved (see below) would ‘tax theadministrative machinery for a considerable time . . . . Until such time as indigenous resources can meet the needs,’
he concluded, 12th Army Group could use imported military government food for the disarmed forces.”) (ellipsis inoriginal).
891

GPW COMMENTARY 549 (“Enemy military personnel who have been illegally enrolled in the armed forces
cannot be treated on the same basis as other prisoners of war, nor can those who go over to the other side. Althoughmany countries, for instance Great Britain, treated the latter as prisoners of war, this does not mean that they areentitled to that status. The Detaining Power is under no obligation to repatriate persons who have deserted to theother side. Similarly, their names are not usually notified to their country of origin. It should, however, be notedthat the status of a deserter who has gone over to the other side must be determined by the way in which hesurrendered or by his statements during initial questioning. A prisoner of war does not become a deserter merely
because he makes a statement in the course of captivity.”).

892

Refer to § 9.3.7 (Non-Renunciation of Rights Secured by the GPW).

656

voluntary, and personal choice. 893 Thus, the GPW does not itself change accepted principles ofinternational law under which asylum is applicable to POWs, and the Detaining Power may, but
is not required to, grant asylum. 894 The policy of the United States has been not to conduct
forcible repatriation of POWs and, in particular, not to transfer any person when torture is more
likely than not to result. 895
The voluntariness of POWs’ decisions may be established through interviews by an
impartial intermediary, such as a neutral State or the ICRC. 896
9.37.4.3 POWs Undergoing Criminal Proceedings for an Indictable Offense. The
repatriation of a POW may not be delayed on the basis that the POW has not undergone

893

LEVIE, POWS 93 (“The question of the extent of the coverage of Article 7 was directly raised during the armisticenegotiations in Korea in connection with the problem of repatriation under Article 118. Is it a violation of Article 7
to permit a prisoner of war to reject repatriation and to seek asylum either in the territory of the Detaining Power, orelsewhere, when hostilities cease? The decision ultimately reached in that controversy, one that had the support of alarge majority of the United Nations General Assembly as then composed, was that Article 7 was not violated if it
could be established in a satisfactory manner that the prisoner of war was actually making an informed, voluntary,and personal choice.”).
894

SENATE EXECUTIVE REPORT 84-9, Geneva Conventions for the Protection of War Victims: Report of theCommittee on Foreign Relations on Executives D, E, F, and G, 82nd Congress, First Session, 5 (Jun. 27, 1955)(“Members of the committee, exploring the problem of involuntary repatriation with the executive branch, were
informed at the hearing that the United States official position continues to be that maintained in Korea andoverwhelmingly supported in the resolution of the General Assembly, and that article 118 does nothing to change
accepted principles of international law under which asylum is applicable to prisoners of war. The committee
unqualifiedly concurs. It finds nothing in the Geneva conventions of 1949 which will compel the United States
forcibly to repatriate prisoners of war who fear political persecution, personal injury, or death should they return totheir homeland. That article, being intended for the benefit and the well-being of prisoners, will permit the UnitedStates to continue the policy of nonforceable repatriation, while at the same time leaving it free, where necessary, torefuse requests for asylum. The interpretation which has thus prevailed gives due weight to the word ‘release’ inarticle 118, is faithful to precedent and legislative history, and is fully consistent with the great humanitarian
purposes which underlie all four of the conventions.”).
895

Refer to § 8.14.4.1 (U.S. Policy Prohibiting Transfers in Cases in Which Detainees Would Likely Be Tortured).

896

For example, FINAL REPORT ON THE PERSIAN GULF WAR 587 (“By international convention, no EPW was
forcibly repatriated. Coalition forces identified to the ICRC Iraqi EPW not desiring repatriation. When an Iraqi
reached the exchange site, the ICRC reconfirmed willingness to be repatriated. Those who indicated they no longer
desired to return to Iraq were returned to the custody of Saudi Arabia. … On 2 May 1991, the last EPW in US
custody was transferred to the Saudi Arabian government. The Coalition repatriation began on 6 March and ended
on 22 August. A total of 13,418 EPWs refused repatriation (13,227 remain at Camp Al-Artawiyah and 191 officer
EPWs remain at Camp Tabuk).”); R. R. Baxter, Asylum to Prisoners of War, 30 BRITISH YEAR BOOK OF
INTERNATIONAL LAW 489, 489-90 (1953) (“After hostilities had ended in Korea and those prisoners of war who
desired to be repatriated had been restored to the forces of which they were members, there remained over 22,000
prisoners of war in the custody of the United Nations Command and several hundreds in the hands of the Commandof the Korean People’s Army and Chinese People’s Volunteers who had not elected to return. In accordance with
the Resolution of the United Nations General Assembly of 3 December 1952, the Terms of Reference for the
Neutral Nations Repatriation Commission annexed to the Korean Armistice Agreement provided that prisoners who
had not ‘exercised their right to be repatriated’ should be placed in the custody of a Neutral Nations Repatriation
Commission (N.N.R.C.), composed of members appointed by Sweden, Switzerland, Poland, Czechoslovakia, andIndia. … Commissions with neutral representation had in a number of previous instances been employed tosupervise the repatriation of prisoners.”).

657

disciplinary proceedings or punishment. 897
POWs against whom criminal proceedings for an indictable offense are pending may bedetained until the end of such proceedings, and, if necessary, until the completion of thepunishment. 898 The same shall apply to POWs already convicted for an indictable offense. 899
In fact, in most instances, as the Supreme Court has observed, the practical administrationof the system of military justice under the law of war would fail if such authority were thought toend with the cessation of hostilities because only after their cessation could the greater number ofoffenders and the principal ones be apprehended and tried. 900
Parties to the conflict shall communicate to each other the names of any POWs who aredetained until the end of the proceedings or until punishment has been completed. 901
The GPW does not prohibit the extradition of POWs to other Parties to the GPW to facecriminal charges. 902
POWs held after the cessation of active hostilities on this basis, even if they have been
convicted, remain entitled to the benefits of the GPW until they are released and repatriated. 903
9.37.5 Commissions to Search for Dispersed POWs. By agreement between the parties
to the conflict, commissions shall be established for the purpose of searching for dispersed
POWs and of ensuring their repatriation with the least possible delay. 904
9.37.6 Costs of Repatriation at the Close of Hostilities. The costs of repatriation of
897

Compare § 9.27.7 (Disciplinary Punishment and Repatriation or Accommodation in a Neutral Country).

898

GPW art. 119 (“Prisoners of war against whom criminal proceedings for an indictable offence are pending may
be detained until the end of such proceedings, and, if necessary, until the completion of the punishment.”).
899

GPW art. 119 (“The same shall apply to prisoners of war already convicted for an indictable offence.”).

900

See In re Yamashita, 327 U.S. 1, 12 (1946) (“We cannot say that there is no authority to convene a commission
after hostilities have ended to try violations of the law of war committed before their cessation, at least until peace
has been officially recognized by treaty or proclamation of the political branch of the Government. In fact, in most
instances the practical administration of the system of military justice under the law of war would fail if such
authority were thought to end with the cessation of hostilities. For only after their cessation could the greaternumber of offenders and the principal ones be apprehended and subjected to trial.”).
901

GPW art. 119 (“Parties to the conflict shall communicate to each other the names of any prisoners of war who aredetained until the end of the proceedings or until punishment has been completed.”).
902

See Noriega v. Pastrana, 564 F.3d 1290, 1298 (11th Cir. Fla. 2009) (“As a result of Noriega’s conviction in the
United States, article 119 authorized the United States to prolong his detention for the duration of his sentence—
beyond the cessation of hostilities between the United States and Panama. Nowhere, however, is it suggested that a
prisoner of war may not be extradited from one party to the Convention to face criminal charges in another. Nor do
the stated purposes of articles 118 and 119, as reflected by their commentary, preclude detention in thesecircumstances: article 118 is intended to prohibit ‘prolong[ed] war captivity,’ while article 119 unambiguously
reflects the intention of the drafters to permit detention of prisoners of war subject to criminal proceedings.”).

903

Refer to § 9.3.6 (Commencement and Duration of POW Status and Treatment).

904

GPW art. 119 (“By agreement between the Parties to the conflict, commissions shall be established for the
purpose of searching for dispersed prisoners of war and of assuring their repatriation with the least possible delay.”).

658

POWs shall in all cases be equitably apportioned between the Detaining Power and the Power onwhich the POWs depend. 905
If the two Powers are contiguous, then the Power on which the POWs depend shall bear
the costs of repatriation from the frontiers of the Detaining Power. 906
If the two Powers are not contiguous, the Detaining Power shall bear the costs oftransport of POWs over its own territory as far as its frontier or its port of embarkation nearest to
the territory of the Power on which the POWs depend. 907 The Parties concerned shall agree
between themselves on the equitable apportionment of the remaining costs of the repatriation,
but the conclusion of such agreement shall in no circumstances justify any delay in therepatriation of the POWs. 908
9.38 PROCEDURE ON RELEASE AND REPATRIATION AFTER HOSTILITIES
9.38.1 Conditions During Release and Repatriation. Repatriation shall be effected in
conditions similar to those laid down in Articles 46 through 48 of the GPW for the transfer ofPOWs, having regard to the provisions of Article 118 of the GPW and to those of Article 119 of
the GPW. 909
9.38.1.1 Conditions of Movement. The conditions of repatriation must be humane
and not less favorable than those under which the forces of the Detaining Power aretransferred. 910 Adequate precautions must be taken for the health and safety of POWs, including
provision of sufficient food, drinking water, clothing, shelter, and medical attention. 911
9.38.2 Notification of Repatriation Plan and Departure. POWs should be informed of theplan for their repatriation. 912 For example, this may take place through notices posted in thecamps and provided to the POW Representatives, or a public announcement. 913
905

GPW art. 118 (“The costs of repatriation of prisoners of war shall in all cases be equitably apportioned between
the Detaining Power and the Power on which the prisoners depend.”).
906

GPW art. 118 (“If the two Powers are continguous, the Power on which the prisoners of war depend shall bear
the costs of repatriation from the frontiers of the Detaining Power.”).
907

GPW art. 118 (“If the two Powers are not contiguous, the Detaining Power shall bear the costs of transport ofprisoners of war over its own territory as far as its frontier or its port of embarkation nearest to the territory of thePower on which the prisoners of war depend.”).
908

GPW art. 118 (“The parties concerned shall agree between themselves as to the equitable apportionment of theremaining costs of the repatriation. The conclusion of this agreement shall in no circumstances justify any delay inthe repatriation of the prisoners of war.”).
909

GPW art. 119 (“Repatriation shall be effected in conditions similar to those laid down in Articles 46 to 48
inclusive of the present Convention for the transfer of prisoners of war, having regard to the provisions of Article
118 and to those of the following paragraphs.”).
910

Refer to § 9.29.2 (Conditions for the Transfer of POWs).

911

Refer to § 9.29.2 (Conditions for the Transfer of POWs).

912

GPW art. 118 (“In either case, the measures adopted shall be brought to the knowledge of the prisoners of war.”).

913

Refer to § 9.22.5 (Posting of Convention and Camp Orders).

659

POWs who are to be moved must be identified and listed before departure, and both the
National POW Information Bureau and the POWs themselves officially notified in advance, sothat they can pack their baggage and inform their next of kin. 914
9.38.3 Personal Property. On repatriation, any articles of value impounded from POWs
under Article 18 of the GPW, 915 and any foreign currency that has not been converted into thecurrency of the Detaining Power, shall be restored to them. 916 Articles of value and foreign
currency that, for any reason whatever, are not restored to POWs on repatriation, shall be sent to
the National POW Information Bureau set up under Article 122 of the GPW. 917
POWs shall be allowed to take with them their personal effects and any correspondence
and parcels that have arrived for them. 918 The weight of such baggage may be limited, if theconditions of repatriation so require, to what each POW can reasonably carry. 919 Each POW
shall in all cases be authorized to carry at least 25 kilograms (approximately 55 pounds). 920 The
other personal effects of the repatriated POW shall be left in the charge of the Detaining Power,
which shall have them forwarded to him or her as soon as it has concluded an agreement to thiseffect, regulating the conditions of transport and the payment of the costs involved, with thePower on which the POW depends. 921
9.38.4 POW Accounts and Financial Matters. POW accounts should be addressed inaccordance with Article 66 of the GPW. 922
In addition, the Powers concerned should make arrangements concerning advances ofpay, compensation payments, and remittances. 923
9.38.5 Canteen Profits. The profits of the canteen should be disposed of in accordance
914

Refer to § 9.29.3.1 (Notification of Transfer).

915

Refer to § 9.7.4 (Money and Articles of Value).

916

GPW art. 119 (“On repatriation, any articles of value impounded from prisoners of war under Article 18, and any
foreign currency which has not been converted into the currency of the Detaining Power, shall be restored tothem.”).
917

GPW art. 119 (“Articles of value and foreign currency which, for any reason whatever, are not restored toprisoners of war on repatriation, shall be despatched to the Information Bureau set up under Article 122.”).
918

GPW art. 119 (“Prisoners of war shall be allowed to take with them their personal effects, and any
correspondence and parcels which have arrived for them.”).
919

GPW art. 119 (“The weight of such baggage may be limited, if the conditions of repatriation so require, to what
each prisoner can reasonably carry.”).
920

GPW art. 119 (“Each prisoner shall in all cases be authorized to carry at least twenty-five kilograms.”).

921

GPW art. 119 (“The other personal effects of the repatriated prisoner shall be left in the charge of the Detaining
Power which shall have them forwarded to him as soon as it has concluded an agreement to this effect, regulating
the conditions of transport and the payment of the costs involved, with the Power on which the prisoner depends.”).

922

Refer to § 9.18.6.4 (Statements of Credit Balance on Termination of Captivity).

923
GPW art. 67 (“Such advances of pay, as well as all payments made by the said Power under Article 63, thirdparagraph, and Article 68, shall form the subject of arrangements between the Powers concerned, at the close of
hostilities.”).

660

with Article 28 of the GPW. 924
9.39 CODE OF CONDUCT FOR U.S. ARMED FORCESThe Code of Conduct is a moral code designed to provide U.S. military personnel with astandard of conduct. 925 Although designed for situations in which members of the U.S. armed
forces may be held as POWs, the spirit and intent of the Code apply to service members
subjected to other types of hostile detention, such as hostage scenarios. 926
9.39.1 Text of the Code of Conduct and Discussion. The Code of Conduct was written to
be consistent with the requirements imposed by the GPW. Violations of the Code of Conduct
are not criminally punishable as such, but conduct that violates the Code of Conduct may also
violate the Uniform Code of Military Justice.
9.39.1.1 Code of Conduct – Article I.
I am an American, fighting in the forces which guard my country and our way oflife. I am prepared to give my life in their defense.
9.39.1.2 Code of Conduct – Article II.
I will never surrender of my own free will. If in command, I will never surrender
the members of my command while they still have the means to resist.
Under Article II of the Code of Conduct, the responsibility and authority of a commander
never extends to the surrender of command, even if isolated, cut off, or surrounded, while theunit has a reasonable power to resist, break out, or evade to rejoin friendly forces. 927
Under the Uniform Code of Military Justice, a U.S. commander who shamefully
surrenders to the enemy any command or place that is his or her duty to defend is subject to924

Refer to § 9.17.3.2 (Disposition of Canteen Profits Upon Camp Closure).

925

See Executive Order 10631, Code of Conduct for Members of the Armed Forces of the United States, 20
FEDERAL REGISTER 6057 (Aug. 17, 1955), as amended by Executive Order 12017, Amending the Code of Conduct
for Members of the Armed Forces of the United States, 42 FEDERAL REGISTER 57941 (Nov. 3, 1977), and as
amended by Executive Order 12633, Amending the Code of Conduct for Members of the Armed Forces of the UnitedStates, 53 FEDERAL REGISTER 10355 (Mar. 28, 1988).
926

See, e.g., DOD INSTRUCTION 1300.21, Code of Conduct (CoC) Training and Education, ¶E2.1.1 (Jan. 8, 2001)(“Although designed for evasion and prisoner of war (POW) situations, the spirit and intent of the CoC are
applicable to Service members subjected to other hostile detention, and such Service members should conduct
themselves consistently in a manner that avoids discrediting themselves and their country.”); Joint Chiefs of Staff
Memorandum 290-81, Code of Military in Hostage Situations (Aug. 5, 1981) (“a. All U.S. military personnel are
subject to being taken hostage under circumstances short of war. In such situations, the conduct of military
personnel will be guided by the Code of Conduct.”).
927
DOD INSTRUCTION 1300.21, Code of Conduct (CoC) Training and Education, ¶ E2.2.2.1.2 (Jan. 8, 2001) (“Theresponsibility and authority of a commander never extends to the surrender of command, even if isolated, cut off, orsurrounded, while the unit has a reasonable power to resist, break out, or evade to rejoin friendly forces.”).

661

punishment. 928 In addition, any person subject to the Uniform Code of Military Justice whocompels or attempts to compel a commander of any place, vessel, aircraft, or other militaryproperty, or of any body of members of the armed forces, to give it up to an enemy or to abandon
it, or who strikes the colors or flag to an enemy without proper authority, is subject topunishment. 929
Article II of the Code of Conduct is consistent with the authority of commanders under
the law of war to conclude capitulation agreements for the surrender of forces under theircommand. 930
9.39.1.3 Code of Conduct – Article III.
If I am captured I will continue to resist by all means available. I will make every
effort to escape and to aid others to escape. I will accept neither parole nor
special favors from the enemy.
By limiting the punishment of POWs with respect to an unsuccessful escape, the GPW
acknowledges that POWs may have a duty to seek to escape, as reflected in Article III of theCode of Conduct. 931
Although the GPW contemplates that POWs may accept parole, 932 U.S. policy, as
reflected in Article III of the Code of Conduct, prohibits accepting parole.
9.39.1.4 Code of Conduct – Article IV.
If I become a prisoner of war, I will keep faith with my fellow prisoners. I will
give no information [n]or take part in any action which might be harmful to mycomrades. If I am senior, I will take command. If not, I will obey the lawfulorders of those appointed over me and will back them up in every way.
Article IV of the Code of Conduct exemplifies the spirit of comradeship that many POWs
have exhibited in past conflicts. 933 It reflects a higher standard of conduct than that punishable
928

10 U.S.C. § 899 (“Any member of the armed forces who before or in the presence of the enemy— … (2)shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his duty
to defend; … shall be punished by death or such other punishment as a court-martial may direct.”).
929

10 U.S.C. § 900 (“Any person subject to this chapter who compels or attempts to compel the commander of any
place, vessel, aircraft, or other military property, or of any body of members of the armed forces, to give it up to an
enemy or to abandon it, or who strikes the colors or flag to an enemy without proper authority, shall be punished bydeath or such other punishment as a court-martial may direct.”).
930

Refer to § 12.8.2 (Authority of Commanders to Conclude Capitulation Agreements).

931

Refer to § 9.25 (POW Escapes).

932

Refer to § 9.11.2 (Parole of POWs).

933

For example, The Secretary of Defense’s Advisory Committee on Prisoners of War, POW The Fight Continues
After The Battle: The Report of the Secretary of Defense’s Advisory Committee on Prisoners of War, 14 (Aug.
1955) (“Many servicemen exhibited pride in themselves and their units. This was particularly pronounced where
they had belonged to the same unit for years. They stood by one another like that ‘band of brothers’ inspired by
Nelson. If a soldier were sick, his fellow soldiers took care of him. They washed his clothes, bathed him, and662

under Article 105 of the Uniform Code of Military Justice regarding misconduct towards fellow
POWs. 934 The senior POW in command is not necessarily the POW Representative. 935 In POW
camps containing only enlisted personnel, the POW Representative is elected. 936
9.39.1.5 Code of Conduct – Article V.
When questioned, should I become a prisoner of war, I am required to give name,rank, service number and date of birth. I will evade answering further questions
to the utmost of my ability. I will make no oral or written statements disloyal to
my country and its allies or harmful to their cause.
Article V of the Code of Conduct reflects the obligations of the POW to provide
accountability information. 937 The Detaining Power may have further obligations to collectadditional accountability information relating to POWs. 938
Article V of the Code of Conduct also underscores one aspect of Article 104 of the
Uniform Code of Military Justice regarding aiding the enemy by specifically forbidding oral or
written statements disloyal to the United States or harmful to its cause. 939
9.39.1.6 Code of Conduct – Article VI.
I will never forget that I am an American, fighting for freedom, responsible formy actions, and dedicated to the principles which made my country free. I willtrust in my God and in the United States of America.

pulled him through. They exhibited true fraternal spirit comradeship, military pride. These soldiers did not let eachother down. Nor could the Korean Reds win much cooperation from them.”).
934

See DEPARTMENT OF THE ARMY PAMPHLET 27-161-2, II International Law, 99-100 (Oct. 23, 1962) (“Theprovisions of the Code of Conduct are not as restrictive in their application as in Article 105(1), U.C.M.J. There is
no requirement that the act be motivated by the desire to secure favorable treatment or that an actual detriment beinflicted on the other PWs as a direct result of the act.”).
935

See DOD INSTRUCTION 1300.21, Code of Conduct (CoC) Training and Education, ¶E2.2.4.1.6 (Jan. 8, 2001)(“U.S. policy on POW camp organization requires that the senior military POW assume command. The Geneva
Convention on POWs (reference (g)) provides additional guidance to the effect that in POW camps containing only
enlisted personnel, a prisoners’ representative shall be elected. POWs should understand that such an elected
representative is regarded by U.S. policy as only a spokesperson for the senior POW. The prisoners’ representative
does not have command, unless the POWs elect the senior POW to be the prisoners’ representative. The senior
POW shall assume and retain actual command, covertly if necessary.”).
936

Refer to § 9.24.2.3 (Places Without Officer POWs).

937

Refer to § 9.8.4 (Accountability Information That POWs Are Bound to Provide Upon Questioning).

938

Refer to § 9.31.1.1 (Difference Between the Accountability Information the Detaining Power Must Seek and theInformation the POW Must Provide).
939

DEPARTMENT OF THE ARMY PAMPHLET 27-161-2, II International Law, 99 (Oct. 23, 1962) (“The Uniform Codecontinues to apply to an American serviceman after his capture by the enemy. A prisoner of war is often in a better
position then before capture to ‘aid the enemy.’ The Code of Conduct underscores one aspect of Article 104
U.C.M.J. by specifically forbidding oral or written statements disloyal to the U.S. or harmful to its cause. Suchstatements may materially aid the enemy in its propaganda efforts.”).

663

9.39.2 Background on the U.S. Code of Conduct. Although misconduct by POWs was
not unique to the Korean War, the Code of Conduct was introduced after public awareness of
instances of misconduct by U.S. servicemembers during their captivity as POWs during the
Korean War. The Secretary of Defense established a committee that recommended that a unified
and purposeful standard of conduct for Americans who become POWs be promulgated. 940
President Dwight D. Eisenhower promulgated the Code of Conduct on August 17, 1955. 941 A
review of the Code of Conduct after the return of U.S. POWs from the Vietnam War confirmed
the value of the Code of Conduct. 942

940

The Secretary of Defense’s Advisory Committee on Prisoners of War, POW The Fight Continues After The
Battle: The Report of the Secretary of Defense's Advisory Committee on Prisoners of War, vii (Aug. 1955) (“[T]heCommittee unanimously agreed that Americans require a unified and purposeful standard of conduct for our
prisoners of war backed up by a first class training program. This position is also wholeheartedly supported by theconcensus [sic] of opinion of all those who consulted with the Committee. From no one did we receive stronger
recommendations on this point than from the former American prisoners of war in Korea-officers and enlisted
men.”).
941

Executive Order 10631, Code of Conduct for Members of the Armed Forces of the United States, 20 FEDERALREGISTER 163 (Aug. 20, 1955).
942

DoD, Report of the Defense Review Committee for the Code of Conduct 6-7 (1976) (“There was consistentagreement throughout Committee proceedings that the Code of Conduct has served as a useful guide to theAmerican Serviceman through a wide spectrum of circumstances during normal service, on the battlefield and in
captivity. It represents the high standard of behavior which is expected of the individual and which he may expect
of all other members of the Armed Forces. There was never any question that the Code is needed, and some POW
returnees attributed their very survival to the inspiration provided by the Code of Conduct.”).

664

X – Civilians in the Hands of a Party to the Conflict
Chapter Contents
10.1 Introduction
10.2 National-Level GC Implementation Measures
10.3 Protected Person Status10.4 Derogation for Security Reasons
10.5 Humane Treatment and Other Basic Protections for Protected Persons
10.6 Measures of Control and Security
10.7 General Treatment of Protected Persons in a Belligerent’s Home Territory
10.8 Expulsion From Areas Within a Belligerent’s Home Territory and Departureand Transfers of Protected Persons From a Belligerent’s Home Territory
10.9 Internment
10.10 Segregation of Internees
10.11 Safety, Hygiene, and Living Conditions in Places of Internment
10.12 Canteens for Internees
10.13 Food, Water, Tobacco, and Clothing for Internees
10.14 Medical Attention for Internees
10.15 Religious Exercise by Internees
10.16 Intellectual, Physical, and Recreational Activities
10.17 Internee Labor
10.18 Internees’ Articles of Personal Use
10.19 Financial Resources of Internees
10.20 Administration of Places of Internment and Discipline
10.21 Internee Petitions, Complaints, and Reports About Conditions ofInternment
10.22 Internee Committees
10.23 Internee Correspondence and Relief Shipments
10.24 Private Legal Matters of Internees
10.25 Internees and Visits of Family and Friends
10.26 Internee Escapes
10.27 General Provisions Applicable to Both Judicial and Disciplinary Sanctions
Regarding Internees
10.28 Disciplinary Proceedings and Punishment
10.29 Judicial Proceedings Regarding Protected Persons in Occupied Territory orInternees in a Belligerent’s Home Territory
10.30 Transfers of Internees From the Place of Internment
10.31 National Accounting for Protected Persons in Its Power10.32 Role of the Protecting Power in the GC
10.33 Access to Internees by Protecting Powers, ICRC, and Other Relief
Organizations
10.34 Death of Internees
10.35 Release, Return, Repatriation of Internees After the Close of Hostilities665

10.1 INTRODUCTION
This Chapter addresses protection of civilians in the hands of a party to an internationalarmed conflict. In particular, the Chapter addresses civilians who are interned in the hometerritory of a belligerent or occupied territory.
Rules for the protection of civilians in the conduct of hostilities are addressed in Chapter
V. Rules for the protection of civilians that are specific to occupied territory are addressed in
Chapter XI, while rules that apply to both civilians in occupied territory and civilians in abelligerent’s home territory are addressed in this Chapter.
10.1.1 Interpretation and Application of the GC. The GC underlies most of theinternational law rules applicable to the United States for the treatment of civilians in the handsof a party to the conflict.
As with the GPW, the GC’s provisions should be interpreted in light of the principles that
underlie the treatment of civilians and, in particular, in light of the goal of advancing the humane
treatment of protected persons. 1 The subsequent practice of States in applying the GC could also
assist in interpreting its provisions because States’ decades of experience in applying the GC
may be very helpful in understanding its requirements. 2
10.1.1.1 GC – Notes on Terminology. In the GC, protected persons does not
simply refer to persons who are “civilians” in the sense of not being members of the military;rather, protected persons refers to persons who are protected by the GC in connection withinternational armed conflict or occupation. 3
In the GC, internees refers to protected persons who are interned.
In the GC, the Detaining Power refers to the State that holds the internee.
In the GC, the Protecting Power refers to a neutral State that helps implement the GC. 4
10.1.1.2 Special Agreements Under the GC. Under the GC, States may conclude
a variety of special agreements during international armed conflict to facilitate the protection ofcivilians. The GC specifically provides for agreements:•

to entrust to an effective and impartial organization the duties of the Protecting Powers; 5•

to establish and recognize civilian hospital zones and localities; 61Refer to § 9.1.2 (Interpretation and Application of the GPW).

2

Refer to § 1.7.4 (Use of Certain Subsequent Practice in Treaty Interpretation).

3

Refer to § 10.3.1 (Protected Person – Notes on Terminology).

4

Refer to § 18.15.1.1 (Protecting Power Under the 1949 Geneva Conventions).

5

Refer to § 18.15.2.1 (Agreement for an Impartial and Effective Organization to Perform Protecting Power Duties
Under the 1949 Geneva Conventions).

666

•

to establish and determine the conditions of neutralized zones; 7•

for the removal of wounded, sick, infirm, and aged persons, children, and maternity
cases, from besieged or encircled areas or for the passage of medical and religious
personnel on their way to such areas; 8•

to settle practical details regarding the departure of protected persons from a belligerent’s
home territory; 9•

to establish the conditions for the sending of individual parcels and collective relief
shipments; 10•

for the release, repatriation, the return to places of residence or the accommodation in aneutral country of certain classes of internees, in particular children, pregnant women andmothers with infants and young children, wounded and sick, and internees who have beendetained for a long time; 11 and•on the procedure, or to select an umpire who will decide the procedure, to be followed for
an inquiry concerning any alleged violation of the GC. 12

In addition to the agreements expressly provided for in Articles 11, 14, 15, 17, 36, 108,
109, 132, 133, and 149 of the GC, Parties to the GC may conclude other special agreements for
all matters concerning which they may deem it suitable to make separate provision. 13 No special
agreement shall adversely affect the situation of protected persons, as defined by the GC, nor
restrict the rights that it confers upon them. 14
Protected persons shall continue to have the benefit of such agreements as long as the GC
is applicable to them, except where express provisions to the contrary are contained in these
agreements or in subsequent agreements, or where more favorable measures have been taken

6

Refer to § 5.14.3.1 (Civilian Hospital and Safety Zones and Localities).

7

Refer to § 5.14.3.3 (Neutralized Zones).

8

Refer to § 5.19.2 (Removal and Passage of Certain Personnel – Vulnerable Civilians, Diplomatic and Consular
Personnel, the Wounded and Sick, and Medical Personnel).
9

Refer to § 10.8.2 (Departures of Protected Persons From a Belligerent’s Home Territory).

10

Refer to § 10.23.3.3 (Special Agreements Concerning Relief Shipments).

11

Refer to § 10.9.6 (Agreements for the Release, Return, or Accommodation in a Neutral Country of Certain Classes
of Internees).
12

Refer to § 18.14.1 (Inquiry Procedure in the 1949 Geneva Conventions).

13

GC art. 7 (“In addition to the agreements expressly provided for in Articles 11, 14, 15, 17, 36, 108, 109, 132, 133
and 149, the High Contracting Parties may conclude other special agreements for all matters concerning which they
may deem it suitable to make separate provision.”).
14

GC art. 7 (“No special agreement shall adversely affect the situation of protected persons, as defined by thepresent Convention, nor restrict the rights which it confers upon them.”).

667

with regard to them by one or other of the parties to the conflict. 15
10.1.2 DoD Policies and Regulations for the Treatment of Internees. DoD policies andregulations regarding the treatment of internees provide authoritative guidance for DoD
personnel and fill an important role in implementing the complex requirements of the GC. 16
Practitioners are advised to consult all applicable policies and regulations, as these, in manycases, exceed the requirements of the GC, U.S. statutes, and Executive Orders.
10.2 NATIONAL-LEVEL GC IMPLEMENTATION MEASURESThe GC requires a number of measures at the national level to facilitate protection forprotected persons.
10.2.1 Appointment or Establishment of Entities. The GC provides for certain bodies orentities to be appointed or established.
10.2.1.1 Appointment of a Protecting Power. The GC contemplates that a
Protecting Power has been appointed to assist in the implementation of the GC. 17 A Protecting
Power has a variety of roles under the GC related to the protection of protected persons. 18
10.2.1.2 Establishment of a National Protected Person Information Bureau. A
National Protected Person Information Bureau shall be established by each of the parties to theconflict. 19
10.2.1.3 Establishment of a Central Information Agency for Protected Persons. A
Central Information Agency for protected persons shall be established in a neutral country. 20
10.2.2 Notification of Certain Laws or Policies Between Belligerents. Parties to aconflict must notify opposing belligerents or the Protecting Power of certain matters relating toprotected persons.
10.2.2.1 Location and Marking of Places of Internment Camps. The Detaining
Power shall provide the Powers concerned useful information regarding the geographic locationof places of internment, and agreements on their markings may be reached. 21
15

GC art. 7 (“Protected persons shall continue to have the benefit of such agreements as long as the Convention isapplicable to them, except where express provisions to the contrary are contained in the aforesaid or in subsequent
agreements, or where more favourable measures have been taken with regard to them by one or other of the Parties
to the conflict.”).
16

Refer to § 18.7 (Instructions, Regulations, and Procedures to Implement and Enforce the Law of War).

17

Refer to § 18.15.1.1 (Protecting Power Under the 1949 Geneva Conventions).

18

Refer to § 10.32 (Role of the Protecting Power in the GC).

19

Refer to § 10.31.2 (National Protected Person Information Bureau).

20

Refer to § 10.31.3 (Central Information Agency for Protected Persons).

21

Refer to § 10.11.1.2 (Sharing Information on the Location of Places of Internment); § 10.11.1.3 (Marking ofInternment Camps).

668

10.2.2.2 Notification of Measures Taken for Implementing GC Provisions That
Address Relations Between Internees and the Exterior. Immediately upon interning protected
persons, the Detaining Power shall inform them, the Power to which they owe allegiance, andtheir Protecting Power of the measures taken for executing the provisions of Chapter VIII of
Section IV of the GC, which address the relations between internees and the exterior (e.g.,correspondence, relief shipments, family visits). 22 The Detaining Power shall likewise informthe Parties concerned of any subsequent modifications of such measures. 23
10.3 PROTECTED PERSON STATUS
In general, the GC uses the concept of protected person to define the individuals who areentitled to receive its protections. Principally, protected persons include persons of enemy
nationality living in the territory of a belligerent State and the inhabitants of occupied
territories. 24 Even if persons are not protected persons under the GC, other rules may be
applicable to them. For example, certain baseline rules apply to the treatment of all detainees,
including those who are not protected persons or POWs. 25
10.3.1 Protected Person – Notes on Terminology. Protected persons is used in the GC asa term to refer to persons who are protected by the GC in connection with international armed
conflict or occupation.
Protected persons is often understood as a term that is specific to the GC. In a few
places, however, the GPW, the GWS, and the GWS-Sea also refer to “protected persons” or“persons protected.” 26 In such cases, “protected persons” and “persons protected” refer topersons protected by that respective convention, as opposed to protected persons for purposes of
the GC.
Although the GC addresses the protection of civilians, protected persons may include
certain unprivileged belligerents. Certain rights and privileges that protected persons who are

22

GC art. 105 (“Immediately upon interning protected persons, the Detaining Powers shall inform them, the Powerto which they owe allegiance and their Protecting Power of the measures taken for executing the provisions of thepresent Chapter.”).
23

GC art. 105 (“The Detaining Powers shall likewise inform the Parties concerned of any subsequent modificationsof such measures.”).
24

GC COMMENTARY 45 (“When work was begun on the preparation of the texts, it became clear—as early as thetime of the Tokyo Draft—that there were two main classes of civilian to whom protection against arbitrary action on
the part of the enemy was essential in time of war—on the one hand, persons of enemy nationality living in the
territory of a belligerent State, and on the other, the inhabitants of occupied territories. The idea that the Convention
should cover these two categories was accepted from the first and has never really been disputed. Any discussions
which have taken place on the subject have been concerned with points of detail which we shall consider later. This
Article [4 of the GC] is, in a sense, the key to the Convention; for it defines the people to whom it refers.”).

25

Refer to § 8.1.1 (Overview of Detention Rules in This Manual and the Scope of Chapter VIII).

26

See, e.g., GPW art. 11 (“In cases where they deem it advisable in the interest of protected persons, particularly incases of disagreement between the Parties to the conflict as to the application or interpretation of the provisions of
the present Convention, the Protecting Powers shall lend their good offices with a view to settling thedisagreement.”).

669

unprivileged belligerents receive, however, are subject to derogation for security reasons. 27
10.3.2 Persons Who Receive Protected Person Status Under the GC. Subject to certain
exceptions addressed below, persons protected by the GC are those who, at a given moment andin any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of aparty to the conflict or Occupying Power of which they are not nationals. 28
Because the definition of protected person is framed negatively in terms of persons whoare in the hands of a State of which they are not nationals, the definition of protected person
allows for the possibility that persons without any nationality may be protected persons. 29
10.3.2.1 “Find Themselves”. The persons must “find themselves” in the hands ofa party to the conflict or Occupying Power, which suggests an element of happenstance or
coincidence. 30 For example, nationals of a neutral or non-belligerent State who travel to an
occupied State to fight the Occupying Power cannot be said to have “found themselves” withinthat occupied territory within the meaning of Article 4 of the GC.
10.3.2.2 In Occupied Territory or the Home Territory of a Party to the Conflict.
To be entitled to the protections provided under the GC for “protected persons,” a person must
be located in either (1) occupied territory or (2) the home territory of a party to the conflict. 31
The references in the GC that limit the scope of protections for protected persons to those “in the
territory of a Party to the conflict” refer to the home territory of the party to the conflict in whose
27

Refer to § 10.4 (Derogation for Security Reasons).

28

GC art. 4 (“Persons protected by the Convention are those who, at a given moment and in any manner whatsoever,find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power ofwhich they are not nationals.”).
29

GC COMMENTARY 47 (“It will be observed that owing to its negative form the definition covers persons without
any nationality. The Rapporteur to Committee III pointed out that it thus complied with the recommendation madeto the Diplomatic Conference by the representative of the International Refugee Organization. In the actual courseof the discussions, however, certain speakers observed that the term ‘nationals’ (ressortissants, in the French
version) did not cover all cases, in particular cases where men and women had fled from their homeland and nolonger considered themselves, or were no longer considered, to be nationals of that country. Such cases exist, it istrue, but it will be for the Power in whose hands they are to decide whether the persons concerned should or should
not be regarded as citizens of the country from which they have fled. The problem presents so many varied aspects
that it was difficult to deal with it fully in the Convention.”).
30

Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under the Fourth
Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 51 (“Alternatively, thephrase “find themselves” [in Article 4 of the GC] can be read more narrowly to suggest an element of happenstanceor coincidence, and to connote a lack of deliberate action relating to the circumstances that leave the persons inquestion in the hands of an occupying power.”).
31

See Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under the
Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 41 (“To receive theprotections provided for ‘protected persons,’ one must be located in either (1) ‘occupied territory,’ or (2) the‘territory of a party to the conflict.’ This limitation does not emerge from article 4 itself, but rather from otherprovisions in GC.”); GC COMMENTARY 46 (“Nevertheless, disregarding points of detail, it will be seen that there are
two main classes of protected person: (1) enemy nationals within the national territory of each of the Parties to theconflict and (2) the whole population of occupied territories (excluding nationals of the Occupying Power). The
other distinctions and, exceptions extend or restrict these limits, but not to any appreciable extent.”).

670

hands the protected person finds himself or herself. 32 For example, Section II of Part III of theGC, which applies to “Aliens in the Territory of a Party to the Conflict,” addresses the protectionof aliens present on the home territory of a party to the conflict in relation to that State.
10.3.2.3 Not Protected by the GWS, GWS-Sea, or the GPW. Persons protected by
the GWS, the GWS-Sea, or the GPW shall not be considered as protected persons within themeaning of the GC. 33 For example, persons who receive POW status under the GPW are notconsidered as protected persons within the meaning of the GC. 34
10.3.2.4 Unprivileged Belligerents Not Per Se Excluded From Protected Person
Status. The fact that a person has engaged in hostile or belligerent conduct does not per se
exclude that person from protected person status under the GC. 35
Certain rights and privileges of the GC that a protected person who has engaged in suchconduct would otherwise receive are, however, subject to derogation for security reasons. 36
10.3.3 Categories of Nationals Specifically Excluded From the Definition of Protected
Person Under the GC. As discussed in this subsection, the GC specifically excludes certain
32

Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under the Fourth
Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 41 (“The meaning of thephrase ‘territory of a Party to the conflict,’ considered in isolation, is not self-evident. At first glance, one might
think that the phrase includes occupied territory, because the occupied power (to whom the territory belongs) is aparty to the conflict. But in the context of the entire Convention, the phrase clearly refers to the home territory of
the party to the conflict in whose hands the ‘protected person’ finds himself. This is evident from several provisionsin GC4.”).
33

GC art. 4 (“Persons protected by the Geneva Convention for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field of August 12, 1949, or by the Geneva Convention for the Amelioration of theCondition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949, or by the
Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949, shall not be considered asprotected persons within the meaning of the present Convention.”).

34

Refer to § 9.3.2 (Persons Entitled to POW Status).

35

See Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under the
Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 48 (“GC4’s fulltitle—‘Geneva Convention Relative to the Protection of Civilian Persons in Time of War,’ (emphasis added)—suggests that ‘[t]he main object of the Convention is to protect a strictly defined category of civilians.’ 4 Pictet,
Commentary at 10 (emphasis added). Consistent with this title, article 4(4) of GC expressly excludes lawful
combatants who enjoy POW status from ‘protected person’ status. These factors, combined with the fact thatunlawful combatants generally receive less favorable treatment than lawful combatants under the Geneva
Convention system, see, e.g., Memorandum for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee,
Assistant Attorney General, Re: Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949
at 1-7 (Feb. 7, 2002) (concluding that GPW withholds protections from persons who engage in hostilities but fail tosatisfy criteria for lawful combatancy), might lead one to assume that unlawful combatants are categorically
excluded from ‘protected person’ status under GC. GC’s text, however, contemplates that persons who ‘findthemselves’ in occupied territory within the meaning of article 4 may engage in at least some forms of unlawful
belligerency without forfeiting all of the benefits of ‘protected person’ status.”); 1956 FM 27-10 (Change No. 1
1976) ¶247b (“Subject to qualifications set forth in paragraph 248 [relating to derogations], those protected by GC
also include all persons who have engaged in hostile or belligerent conduct but who are not entitled to treatment as
prisoners of war.”).
36

Refer to § 10.4 (Derogation for Security Reasons).

671

classes of persons from the definition of protected person. 37
The provisions of Part II of the GC, which address the general protection of populations
against certain consequences of war, are, however, wider in application, as defined in Article 13of the GC. 38 These provisions cover the whole of the populations in conflict without any adverse
distinction based, in particular, on race, nationality, religion, or political opinion, and areintended to alleviate the sufferings caused by war. 39 Thus, persons excluded by reason of theirnationality from the definition of protected person may nonetheless receive the protections ofPart II of the GC.
10.3.3.1 A State’s Own Nationals. In general, a State’s own nationals who are inits hands are not protected persons under the GC. 40 This exclusion from the definition of“protected person” in the GC is consistent with a traditional principle of international law—the
GC “does not interfere in a State’s relations with its own nationals.” 41 However, the GC does
limit the arrest, prosecution, conviction, or deportation of nationals of any Occupying Power
who, before the outbreak of hostilities, have sought refuge in the territory of the occupied State. 42
10.3.3.2 Nationals of a State That Is Not Bound by the GC. Nationals of a State
that is not bound by the GC are not protected by it. 43 This provision of the GC reflects a legal
principle underlying the GC: a State must accept the burdens of the GC in order to receive its
benefits. 44
37

Compare § 4.4.4 (Nationality and Combatant Status).

38

See GC art. 4 (“The provisions of Part II are, however, wider in application, as defined in Article 13.”).

39

GC art. 13 (“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 toalleviate the sufferings caused by war.”).
40

GC art. 4 (“Persons protected by the Convention are those who, at a given moment and in any manner whatsoever,find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power ofwhich they are not nationals.”) (emphasis added).
41

GC COMMENTARY 46 (“The definition has been put in a negative form; as it is intended to cover anyone who is
not a national of the Party to the conflict or Occupying Power in whose hands he is. The Convention thus remains
faithful to a recognized principle of international law: it does not interfere in a State’s relations with its own
nationals. The only exception to this rule is the second paragraph of Article 70, which refers to nationals of the
Occupying Power who sought refuge in the territory of the occupied State before the outbreak of hostilities. This isa very special case, based on the position such people have taken up with regard to their own country.”).
42

Refer to § 11.11.7 (Limitation on Criminal Jurisdiction With Respect to Pre-Occupation Acts).

43

GC art. 4 (“Nationals of a State which is not bound by the Convention are not protected by it.”).

44

Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under the Fourth
Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 54 (“The benefits-burdens
principle also finds expression in article 4(2), which provides: ‘Nationals of a State which is not bound by theConvention are not protected by it.’ The ICRC’s Official Commentary states that article 4(2)’s exception to thedefinition of “protected person” in article 4(1) is a ‘truism’ and an ‘unnecessary addition’ that follows naturally fromarticle 2(1) even in the absence of article 4(2). See 4 Pictet, Commentary at 48. Whether or not this is true, article
4(2) makes this much clear: persons in occupied territory, including those who commit hostile acts there, are not‘protected persons’ under GC if the State that represents them has not formally accepted the Convention’s
burdens.”).

672

10.3.3.3 Nationals of a Neutral State or Co-Belligerent State While Normal
Diplomatic Representation Exists. Nationals of a neutral State who find themselves in the
territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded asprotected persons while the State of which they are nationals has normal diplomatic
representation in the State in whose hands they are. 45
These persons were omitted from the GC’s definition of “protected person” in order toavoid creating complications or inconsistencies in procedures should both the GC and the law
applicable to normal diplomatic representation apply. 46
Nationals of a neutral State in occupied territory, however, are regarded as protected
persons under the GC. 47
10.3.4 Commencement and Duration of Protected Person Status. As with the generalapplication of the GC, protected persons shall receive their protections from the outset of any
conflict or occupation mentioned in Article 2 of the GC. 48 In general, the application ofprotected person status also ceases when the GC ceases to apply.
In the territory of parties to the conflict, the application of the GC shall cease on thegeneral close of military operations. 49 In most cases, the general close of military operations willbe the final end of all fighting between all those concerned. 50

45

GC art. 4 (“Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals ofa co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has
normal diplomatic representation in the State in whose hands they are.”).
46

See II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 814 (“At the first reading several
Delegates argued that the Convention should merely regulate the relations between a belligerent State and thenationals of an enemy State, and that it should not include relations between the State and nationals of a neutral
country. Other delegates, however, argued that stateless persons should be borne in mind and that, moreover, there
might be, in the territory of a belligerent State, nationals of foreign States who did not benefit by any diplomatic
representation either because their home country had broken off diplomatic relations with the country where they
were or because they had themselves broken away from their country of origin. Our Committee gave the mostcareful consideration to this problem and the majority recognized the weight of the reasons put forward by States
sheltering a large number of aliens: the superposition of normal diplomatic representation and of the protection
ensured by the Convention, would lead to complications and would be indefensible from the point of view ofconsistency of procedure.”).
47

Refer to § 15.6.4.1 (Protected Person Status of Neutral Persons in Occupied Territory).

48

GC art. 6 (“The present Convention shall apply from the outset of any conflict or occupation mentioned in Article
2.”).
49

GC art. 6 (“In the territory of Parties to the conflict, the application of the present Convention shall cease on thegeneral close of military operations.”).
50

GC COMMENTARY 62 (“What should be understood by the words ‘general close of military operations’? In theopinion of the Rapporteur of Committee III, the general close of military operations was ‘when the last shot has
been fired’. There are, however, a certain number of other factors to be taken into account. When the struggle takes
place between two States the date of the close of hostilities is fairly easy to decide: it will depend either on anarmistice, a capitulation or simply on debellatio. On the other hand, when there are several States on one or both of
the sides, the question is harder to settle. It must be agreed that in most cases the general close of military
operations will be the final end of all fighting between all those concerned.”).

673

In the case of occupied territory, the application of the GC shall cease one year after thegeneral close of military operations; however, the Occupying Power shall be bound, for theduration of the occupation, to the extent that such Power exercises the functions of government
in such territory, by the provisions of the following Articles of the GC: 1 through 12, 27, 29
through 34, 47, 49, 51, 52, 53, 59, 61 through 77, and 143. 51
Protected persons whose release, repatriation, or re-establishment may take place after
such dates shall meanwhile continue to benefit from the protection of the GC. 52 “Reestablishment” refers to protected persons who cannot be repatriated because, for example, theywould be liable to persecution in their own country or because their homes have been
destroyed. 53
10.3.5 State Responsibility for Its Agents’ Treatment of Protected Persons. A party to theconflict is responsible for the treatment accorded to protected persons by its agents, irrespectiveof any individual responsibility that may be incurred. 54
10.3.6 Non-Renunciation of Rights Secured by the GC. Protected persons may in nocircumstances renounce in part or in entirety the rights secured to them by the GC or by special
agreements, if any, referred to in Article 7 of the GC. 55 A similar provision of the GPW applies
to POWs, and similar provisions of the GWS and GWS-Sea apply to the wounded, sick,shipwrecked, and military medical and religious personnel. 56
10.4 DEROGATION FOR SECURITY REASONS
Certain rights and privileges of the GC that protected persons receive are subject toderogation for security reasons.
51

Refer to § 11.3.2 (Duration of GC Obligations in the Case of Occupied Territory).

52

GC art. 6 (“Protected persons whose release, repatriation or re-establishment may take place after such dates shallmeanwhile continue to benefit by the present Convention.”).
53

1956 FM 27-10 (Change No. 1 1976) ¶249b (“Reestablishment of Protected Persons. The word
‘reestablishment,’ as used in a, refers to protected persons who cannot be repatriated because, for example, theywould be liable to persecution in their own country, or because their homes have been destroyed.”). See also GC
COMMENTARY 64 (“The time when the Convention as a whole ceases to apply, both in the territory of the Parties tothe conflict and in occupied territory, may quite conceivably come before the protected persons have been able toresume a normal existence, especially if they have to be repatriated or assisted to resettle. … The word‘resettlement’ is used in regard to protected persons who cannot be repatriated for one reason or another and are notallowed to settle permanently in the country where they are living. In such cases another country must be foundwhere they will be received and allowed to settle. It was in particular the experience gained at the end of the Second
World War which led to the adoption of this clause.”).
54

GC art. 29 (“The Party to the conflict in whose hands protected persons may be, is responsible for the treatment
accorded to them by its agents, irrespective of any individual responsibility which may be incurred.”). Refer to§ 18.9.1 (State Responsibility for Violations of the Law of War by Its Armed Forces).
55

GC art. 8 (“Protected persons may in no circumstances renounce in part or in entirety the rights secured to themby the present Convention, and by the special agreements referred to in the foregoing Article, if such there be.”).
Refer to § 10.1.1.2 (Special Agreements Under the GC).
56

Refer to § 7.2.2 (Non-Renunciation of Rights Secured by the GWS or GWS-Sea); § 9.3.7 (Non-Renunciation of
Rights Secured by the GPW).

674

10.4.1 Derogation in Home Territory. Where, in the territory of a party to the conflict,the latter is satisfied that an individual protected person is definitely suspected of or engaged in
activities hostile to the security of the State, such individual person shall not be entitled to claim
such rights and privileges under the GC as would, if exercised in the favor of such individual
person, be prejudicial to the security of such State. 57
10.4.2 Derogation in Occupied Territory. Where in occupied territory an individual
protected person is detained as a spy or saboteur, or as a person under definite suspicion ofactivity hostile to the security of the Occupying Power, such person shall, in those cases where
absolute military security so requires, be regarded as having forfeited rights of communication
under the GC. 58 For example, it may be necessary to keep the fact of detention secrettemporarily so as not to compromise an ongoing operation against a conspiracy or network ofspies. 59
The derogation provisions relating to the home territory of a belligerent are not applicablein occupied territory, even though the occupied territory may arguably be characterized as thehome territory of the opposing belligerent (i.e., the country being occupied).
10.4.3 Derogation in Other Areas. To the extent that the rights and privileges ofprotected persons afforded by the GC are applied outside the home territory of a party to theconflict or outside occupied territory, it would be reasonable for such rights and privileges
similarly to be subject to derogation. Thus, if a party to the conflict is satisfied that an individual
protected person is definitely suspected of or engaged in activities hostile to the security of theState in other contexts, such individual person similarly could be deemed not entitled to claim
such rights and privileges under the GC as would, if exercised in favor of such individual person,
be prejudicial to the security of such State. 60
10.4.4 Limits on Derogation. In each case, such persons shall nevertheless be treatedwith humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial
prescribed by the GC. 61 No derogation from the provision of humane treatment and the rights of
57

GC art. 5 (“Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected
person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person
shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in thefavour of such individual person, be prejudicial to the security of such State.”).
58

GC art. 5 (“Where in occupied territory an individual protected person is detained as a spy or saboteur, or as aperson under definite suspicion of activity hostile to the security of the Occupying Power, such person, shall, in
those cases where absolute military security so requires, be regarded as having forfeited rights of communication
under the present Convention.”).
59

GC COMMENTARY 53 (“There may of course be occasions when it is desirable to keep the fact of an arrest secretin the hope of capturing a whole organization or spy ring.”).
60

1956 FM 27-10 (Change No. 1 1976) ¶248b (“Where, in territories other than those mentioned in a above, a Party
to the conflict is satisfied that an individual protected person is definitely suspected of or engaged in activities
hostile to the security of the State, such individual person is similarly not entitled to claim such rights and privileges
under GC as would, if exercised in favor of such individual person, be prejudicial to the security of such State.”).
61

GC art. 5 (“In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be
deprived of the rights of fair and regular trial prescribed by the present Convention.”).

675

fair and regular trial is permitted. 62
Such persons shall also be granted the full rights and privileges of a protected person
under the GC at the earliest date consistent with the security of the State or Occupying Power, as
the case may be. 63
10.5 HUMANE TREATMENT AND OTHER BASIC PROTECTIONS FOR PROTECTED PERSONS
Protected persons are entitled, in all circumstances, to respect for their persons, theirhonor, their family rights, their religious convictions and practices, and their manners andcustoms. They shall at all times be humanely treated, and shall be protected especially against
all acts of violence or threats of violence, and against insults and public curiosity. 64
10.5.1 Protection Against Violence or Threats. Protected persons must at all times beprotected, particularly against acts or threats of violence. For example, the murder of protected
persons is forbidden.
Protected persons should be protected not only against unlawful acts by the agents of the
Detaining Power, but also against violence from other protected persons, such as during
internment or, in the case of protected persons in a belligerent’s home territory, violence frommembers of the civilian population.
10.5.1.1 Measures of Physical Suffering, Extermination, or Other Brutality. The
Parties to the GC specifically agree that each of them is prohibited from taking any measure ofsuch a character as to cause the physical suffering or extermination of protected persons in theirhands. 65 This prohibition applies not only to murder, torture, corporal punishment, mutilation,and medical or scientific experiments not necessitated by the medical treatment of a protected
person, but also to any other measures of brutality whether applied by civilian or military62

Refer to § 10.5 (Humane Treatment and Other Basic Protections for Protected Persons); § 10.29 (Judicial
Proceedings Regarding Protected Persons in Occupied Territory or Internees).
63

GC art. 5 (“They shall also be granted the full rights and privileges of a protected person under the present
Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.”).
64

GC art. 27 (“Protected persons are entitled, in all circumstances, to respect for their persons, their honour, theirfamily rights, their religious convictions and practices, and their manners and customs. They shall at all times behumanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults
and public curiosity.”). See also GC COMMENTARY 199-200 (“Article 27, placed at the head of Part III, occupies a
key position among the Articles of the Convention. It is the basis of the Convention, proclaiming as it does theprinciples on which the whole of ‘Geneva Law’ is founded. It proclaims the principle of respect for the humanperson and the inviolable character of the basic rights of individual men and women. The statement of theseprinciples in an international convention gives them the character of legal obligations and marks an essential stage inthe history of international law -- in particular international humanitarian law, which is concerned above all with
man as man.”).
65
GC art. 32 (“The High Contracting Parties specifically agree that each of them is prohibited from taking any
measure of such a character as to cause the physical suffering or extermination of protected persons in theirhands.”).

676

agents. 66
10.5.1.2 Protection for Women Against Rape or Other Indecent Assault. Women
shall be especially protected against any attack on their honor, in particular against rape,
enforced prostitution, or any form of indecent assault. 67
Although the GC provides special protection for women against these offenses, allindividuals, including children and men, should also be protected against these offenses.
Indecent assault is generally referred to today as sexual assault.
10.5.1.3 Presence May Not Be Used to Render Places Immune From Military
Operations. The presence of a protected person may not be used to render certain points or areas
immune from military operations. 68
10.5.1.4 Taking of Hostages. The taking of hostages is prohibited. 69
10.5.2 Protection Against Insults and Public Curiosity. Internees must at all times beprotected against insults and public curiosity. For example, displaying internees in a humiliatingfashion on television or on the internet would be prohibited. 70 For this reason and others, DoD
policy has prohibited the taking of photographs of detainees except for authorized purposes. 71
10.5.3 Other Prohibited Measures.
10.5.3.1 No Physical or Moral Coercion. No physical or moral coercion shall be
exercised against protected persons, in particular to obtain information from them or from third
parties. 72 For example, protected persons in occupied territory may not be compelled to provide
information about their State’s military defenses. 73 Other requirements, including therequirements of U.S. law and policy, would apply to the interrogation of protected persons. 74
The GC’s prohibition against the use of coercion does not apply to those measures
66

GC art. 32 (“This prohibition applies not only to murder, torture, corporal punishment, mutilation and medical orscientific experiments not necessitated by the medical treatment of a protected person, but also to any othermeasures of brutality whether applied by civilian or military agents.”).
67

GC art. 27 (“Women shall be especially protected against any attack on their honour, in particular against rape,
enforced prostitution, or any form of indecent assault.”).
68

GC art. 28 (“The presence of a protected person may not be used to render certain points or areas immune frommilitary operations.”).
69

GC art. 34 (“The taking of hostages is prohibited.”).

70

Compare § 9.5.3 (Protection Against Insults and Public Curiosity).

71

Refer to § 8.2.2.3 (DoD Practice of Generally Prohibiting Taking Photographs Without Authorization).

72

GC art. 31 (“No physical or moral coercion shall be exercised against protected persons, in particular to obtain
information from them or from third parties.”).
73

Refer to § 11.20.1.4 (Prohibition Against Forcing Inhabitants to Provide Information About the Opposing Army or
Its Means of Defense).
74

Refer to § 10.6.2 (Interrogation of Protected Persons).

677

implicitly or explicitly authorized by the GC (such as the use of force to prevent one internee
from harming another) or other lawful measures that are otherwise consistent with the GC (suchas the use of force to prevent internees from escaping internment). 75
10.5.3.2 Collective Penalties and Measures of Intimidation or Terrorism. No
protected person may be punished for an offense he or she has not personally committed. 76
Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. 77
Collective penalties are prohibited as a general matter. 78
10.5.3.3 Pillage Against Protected Persons. Pillage is prohibited. 79 In addition tothis specific prohibition in the GC, pillage is prohibited as a general matter. 80
10.5.4 Reprisals Against Protected Persons and Their Property. Reprisals against
protected persons and their property are prohibited. 81
10.5.5 No Adverse Distinction Based on Race, Religion, or Political Opinion. Without
prejudice to the provisions of the GC relating to their state of health, age, and sex, all protected
persons shall be treated with the same consideration by the party to the conflict in whose power
they are, without any adverse distinction based, in particular, on race, religion, or politicalopinion. 82
Distinctions are permitted, and in some cases required, for humanitarian reasons. 83 For
75

GC COMMENTARY 220 (“The general nature of the new provision marks an important step forward ininternational law. For its exact significance to be appreciated, it should not be considered in isolation but rather inthe light of the other provisions of the Convention. It will then be seen that there is no question of absoluteprohibition, as might be thought at first sight. The prohibition only applies in so far as the other provisions of theConvention do not implicitly or explicitly authorize a resort to coercion. Thus, Article 31 is subject to the unspoken
reservation that force is permitted whenever it is necessary to use it in the application of measures taken under theConvention. This power is embodied and expressed particularly in penal legislation and in the control and security
regulations enacted by the belligerents and to which protected persons are subject.”).
76

GC art. 33 (“No protected person may be punished for an offence he or she has not personally committed.”).

77

GC art. 33 (“Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.”).
Consider AP I art. 51(2) (“Acts or threats of violence the primary purpose of which is to spread terror among thecivilian population are prohibited.”).
78

Refer to § 8.16.2.1 (Individual Penal Responsibility and No Collective Punishment).

79

GC art. 33 (“Pillage is prohibited.”).

80

Refer to § 5.17.4 (Pillage Prohibited).

81

Refer to § 18.18.3.2 (Reprisals Prohibited by the 1949 Geneva Conventions).

82

GC art. 27 (“Without prejudice to the provisions relating to their state of health, age and sex, all protected persons
shall be treated with the same consideration by the Party to the conflict in whose power they are, without any
adverse distinction based, in particular, on race, religion or political opinion.”).
83

GC COMMENTARY 426 (“All discrimination contrary to Article 27 is prohibited. On the other hand implicit
authority is given for the discrimination permitted by that Article for humanitarian reasons, in order to favour classesof people who are in particular need of help (the infirm, the sick, pregnant women, etc.). All this is an example of
the application of the principle of non-discrimination, as understood in humanitarian law--that is to say the rule678

example, the GC provides for special treatment for children during internment. 84
Distinction based on religion, political opinion, or other similar criteria may also be madeso long as it is not adverse and it is made to advance legitimate interests, such as maintaining
order in a place of internment. 85
10.5.6 Facility for Applying to the Protecting Powers and Assistance Organizations Suchas the ICRC. Protected persons shall have every facility for making application to the Protecting
Powers, the ICRC, the National Red Cross (Red Crescent, Red Lion and Sun) Society of thecountry where they may be, as well as to any organization that might assist them. 86
These several organizations shall be granted all facilities for that purpose by theauthorities, within the bounds set by military or security considerations. 87
Apart from the visits of the delegates of the Protecting Powers and of the ICRC, provided
for by Article 143 of the GC, the Detaining or Occupying Powers shall facilitate as much as
possible visits to protected persons by the representatives of other organizations whose object is
to give spiritual aid or material relief to such persons. 88
10.6 MEASURES OF CONTROL AND SECURITY
The parties to the conflict may take such measures of control and security in regard toprotected persons as may be necessary as a result of the war. 89 For example, in a belligerent’s
which forbids all differentiation based on race, political opinions, religion or social class, but at the same time
demands that the different degrees of suffering should be alleviated by different degrees of assistance.”).
84

Refer to § 4.20.4 (Protection for Children in the Context of Internment Under the GC).

85

Compare § 9.5.5 (No Adverse Distinction Based on Race, Nationality, Religion, or Political Belief).

86

GC art. 30 (“Protected persons shall have every facility for making application to the Protecting Powers, theInternational Committee of the Red Cross, the National Red Cross (Red Crescent, Red Lion and Sun) Society of thecountry where they may be, as well as to any organization that might assist them.”).
87

GC art. 30 (“These several organizations shall be granted all facilities for that purpose by the authorities, within
the bounds set by military or security considerations.”). See also GC COMMENTARY 218 (“The Convention requires
the Parties to the conflict to grant all facilities to the Protecting Powers and relief organizations. That means that it
will not be enough merely to authorize them to carry out their work; their task must be facilitated and promoted. It
is the duty of the authorities to take all necessary steps to allow approved organizations to take rapid and effective
action wherever they are asked to give assistance. Among examples of such measures can be mentioned theprovision of facilities for delegates to move about and carry on correspondence, to have free access to all places
where protected persons are living, transport facilities and facilities for distributing relief, etc. The obligation tofacilitate this work is limited however by military or security considerations, as stated in the reservation at the end of
the paragraph. It is essential, however, that the belligerents, who will be sole judges o [sic] the validity of thereasons put forward, should show moderation in the use they make of this reservation and only apply it in cases ofreal necessity”).
88

GC art. 30 (“Apart from the visits of the delegates of the Protecting Powers and of the International Committee of
the Red Cross, provided for by Article 143, the Detaining or Occupying Powers shall facilitate as much as possible
visits to protected persons by the representatives of other organizations whose object is to give spiritual aid ormaterial relief to such persons.”).
89

GC art. 27 (“However, the Parties to the conflict may take such measures of control and security in regard toprotected persons as may be necessary as a result of the war.”).

679

home territory, measures of control are normally taken with respect to, at the very least, persons
known to be active or reserve members of a hostile army, persons who would be liable to service
in the enemy forces, and persons who it is expected would furnish information or other aid to ahostile State. 90
These measures may include, for example, requiring protected persons: (1) to registerwith and report periodically to the police authorities; (2) to carry identity cards or special papers;(3) to refrain from carrying weapons; (4) to refrain from changing their place of residence
without permission; (5) to refrain from accessing certain areas; (6) to have an assigned residence;and (7) to be interned. 91
This section addresses searches, interrogation, and general rules for measures of control
and security applied to protected persons, which must be applied consistent with humane
treatment requirements. 92
10.6.1 General Authority of a Belligerent to Search and Secure Protected Persons andTheir Property. The measures of control and security that a belligerent may take in regard toprotected persons include searching and securing protected persons and their property whennecessary as a result of the war (e.g., for security reasons and intelligence purposes). 93
10.6.1.1 Searches of Protected Persons. The dignity and honor of the protected
person being searched should be protected to the greatest degree possible under thecircumstances. 94 The person conducting the search should avoid doing or saying anything likely
to be regarded as indecent. In some circumstances, it may be appropriate for a witness toobserve the search so as to protect both the person being searched from abuse and the person
conducting the search from unfounded accusations of abuse.
10.6.1.2 Search of Female Protected Persons. It is appropriate for female
protected persons to be searched by female personnel, if possible. This practice helps reduce therisk of accusations of indecent behavior.

90

1956 FM 27-10 (Change No. 1 1976) ¶26 (“Measures of control are normally taken with respect to at least
persons known to be active or reserve members of a hostile army, persons who would be liable to service in theenemy forces, and persons who it is expected would furnish information or other aid to a hostile State.”).
91

GC COMMENTARY 207 (“The various security measures which States might take are not specified; the Article
merely lays down a general provision. There are a great many measures, ranging from comparatively mild
restrictions such as the duty of registering with and reporting periodically to the police authorities, the carrying ofidentity cards or special papers, or a ban on the carrying of arms, to harsher provisions such as a prohibition on any
change in place of residence without permission, prohibition of access to certain areas, restrictions of movement, oreven assigned residence and internment (which, according to Article 41, are the two most severe measures abelligerent may inflict on protected persons). A great deal is thus left to the discretion of the Parties to the conflictas regards the choice of means. What is essential is that the measures of constraint they adopt should not affect thefundamental rights of the persons concerned.”).

92

Refer to § 10.5 (Humane Treatment and Other Basic Protections for Protected Persons).

93

Compare § 9.6 (Security Measures With Respect to POWs).

94

Refer to § 10.5 (Humane Treatment and Other Basic Protections for Protected Persons).

680

A woman internee shall not be searched except by a woman. 95
10.6.1.3 Securing Protected Persons With Handcuffs and Other Security Devices.
When necessary for security reasons, protected persons may be secured temporarily withhandcuffs, flex cuffs, blindfolds, or other security devices. 96
10.6.1.4 Search of the Property of Protected Persons. When necessary as a resultof the war, items in the possession of protected persons may be removed and searched, butproperty should be returned as soon as possible, absent a legal basis for the seizure of theproperty. 97
10.6.2 Interrogation of Protected Persons. The law of war does not prohibit interrogationof protected persons, but specifies conditions and limitations for conducting interrogation.
10.6.2.1 Humane Treatment During Interrogation. Interrogation must be carriedout in a manner consistent with the requirements for humane treatment, including the prohibition
against acts of violence or intimidation, and insults. 98
No physical or moral coercion shall be exercised against protected persons to obtain
information from them or from third parties. 99
10.6.2.2 Additional U.S. Law and Policy on Interrogation. U.S. law and policy
impose additional requirements on the interrogation of protected persons. 100
10.6.3 No Measures of Control More Severe Than Assigned Residence or Internment. If
the measures of control mentioned in the GC for protected persons are considered to beinadequate by the Power imposing them, that Power may not have recourse to any other measureof control more severe than that of assigned residence or internment, in accordance with theprovisions of Articles 42 and 43 of the GC. 101
Similarly, if the Occupying Power considers it necessary, for imperative reasons of
security, to take safety measures concerning protected persons, it may, at the most, subject themto assigned residence or to internment. 102
95

GC art. 97 (“A woman internee shall not be searched except by a woman.”).

96

Compare § 9.6.2 (Securing POWs With Handcuffs and Other Security Devices).

97

Refer to § 5.17 (Seizure and Destruction of Enemy Property).

98

Refer to § 10.5 (Humane Treatment and Other Basic Protections for Protected Persons).

99

Refer to § 10.5.3.1 (No Physical or Moral Coercion).

100

Refer to, e.g., § 8.4.2 (Additional U.S. Law and Policy on Interrogation).

101

GC art. 41 (“Should the Power in whose hands protected persons may be consider the measures of control
mentioned in the present Convention to be inadequate, it may not have recourse to any other measure of control
more severe than that of assigned residence or internment, in accordance with the provisions of Articles 42 and43.”).
102

GC art. 78 (“If the Occupying Power considers it necessary, for imperative reasons of security, to take safetymeasures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.”).

681

10.6.4 Support to Persons Who Are Assigned Residence Should Be Guided byInternment Standards. In applying the provisions of the second paragraph of Article 39 of the
GC to the cases of persons required to leave their usual places of residence by virtue of adecision placing them in assigned residence elsewhere, the Detaining Power shall be guided as
closely as possible by the standards of welfare set forth in Part III, Section IV of the GC. 103 In
other words, if the State assigns residence to a protected person in its home territory that resultsin the protected person being unable to support himself or herself and his or her dependents, theState shall provide support to that protected person and his or her dependents, being guided as
closely as possible by the standards of welfare set forth in Part III, Section IV of the GC, which
provides regulations for the treatment of internees.
Similarly, in occupied territory, protected persons made subject to assigned residence andthus required to leave their homes shall enjoy the full benefit of Article 39 of the GC. 104 For
example, the internment standards in the GC should also be a guide for support to protected
persons and their dependents who are subject to assigned residence in occupied territory.
10.6.5 Refugees Who Do Not Enjoy the Protection of Any Government. In applying themeasures of control mentioned in the GC to protected persons in its home territory, the Detaining
Power shall not treat as enemy aliens exclusively on the basis of their nationality de jure of an
enemy State, refugees who do not, in fact, enjoy the protection of any government. 105 For
example, a refugee who is not actually protected by his or her government should not be
automatically subject to control measures simply on the basis of enemy nationality, but may besubject to any other recognized control measure if there are additional reasons for such action. 106
10.7 GENERAL TREATMENT OF PROTECTED PERSONS IN A BELLIGERENT’S HOME TERRITORY
10.7.1 Regulation of the Situation of Protected Persons, in Principle, by Provisions
Applicable to Aliens in Time of Peace. With the exception of special measures authorized by theGC, in particular by Articles 27 and 41 of the GC (i.e., measures of control and security, such as
internment), the situation of protected persons shall continue to be regulated, in principle, by the103
GC art. 41 (“In applying the provisions of Article 39, second paragraph, to the cases of persons required to leave
their usual places of residence by virtue of a decision placing them in assigned residence elsewhere, the Detaining
Power shall be guided as closely as possible by the standards of welfare set forth in Part III, Section IV of thisConvention.”).
104

GC art. 78 (“Protected persons made subject to assigned residence and thus required to leave their homes shallenjoy the full benefit of Article 39 of the present Convention.”).
105

GC art. 44 (“In applying the measures of control mentioned in the present Convention, the Detaining Power shallnot treat as enemy aliens exclusively on the basis of their nationality de jure of an enemy State, refugees who do not,in fact, enjoy the protection of any government.”).
106

See 1956 FM 27-10 (Change No. 1 1976) ¶283b (“The purpose of the foregoing article [37 of the GC] is to insurethat refugees who may only technically remain enemy aliens are not on that basis automatically subject to control
measures, notwithstanding the fact they actually are not protected by their government. However, the quoted
provision does not in any way deny the right of a State to intern any such person or subject him to any otherrecognized measure of control when there is any additional reason that renders necessary the taking of such action as
may be required for the security of the State in a moment of national crisis.”).

682

provisions concerning aliens in time of peace. 107 In any case, the following rights shall be
granted to them:•

They shall be enabled to receive the individual or collective relief that may be sent tothem (e.g., by their home country or national or international relief organizations, such as
the ICRC).

•

They shall, if their state of health so requires, receive medical attention and hospitaltreatment to the same extent as the nationals of the State concerned.

•

They shall be allowed to practice their religion and to receive spiritual assistance fromministers of their faith.

•

If they reside in an area particularly exposed to the dangers of war, they shall beauthorized to move from that area to the same extent as the nationals of the State
concerned.

•

Children under fifteen years, pregnant women, and mothers of children under seven years
shall benefit from any preferential treatment to the same extent as the nationals of theState concerned. 108

10.7.2 Opportunity for Employment and Other Support. Protected persons who, as aresult of the war, have lost their gainful employment, shall be granted the opportunity to findpaid employment. 109 That opportunity shall, subject to security considerations and to theprovisions of Article 40, be equal to that enjoyed by the nationals of the Power in whose territory
they are. 110
10.7.2.1 Support When Measures of Control Are Applied. Where a party to theconflict applies to a protected person methods of control that result in that person being unable tosupport himself or herself, and especially if such a person is prevented for reasons of security
from finding paid employment on reasonable conditions, that party shall ensure his or her

107
GC art. 38 (“With the exception of special measures authorized by the present Convention, in particular by
Articles 27 and 41 thereof, the situation of protected persons shall continue to be regulated, in principle, by theprovisions concerning aliens in time of peace.”).
108

GC art. 38 (“In any case, the following rights shall be granted to them: (1) They shall be enabled to receive theindividual or collective relief that may be sent to them. (2) They shall, if their state of health so requires, receive
medical attention and hospital treatment to the same extent as the nationals of the State concerned. (3) They shall beallowed to practise their religion and to receive spiritual assistance from ministers of their faith. (4) If they reside in
an area particularly exposed to the dangers of war, they shall be authorized to move from that area to the same
extent as the nationals of the State concerned. (5) Children under fifteen years, pregnant women and mothers ofchildren under seven years shall benefit by any preferential treatment to the same extent as the nationals of the State
concerned.”).

109

GC art. 39 (“Protected persons who, as a result of the war, have lost their gainful employment, shall be granted
the opportunity to find paid employment.”).
110

GC art. 39 (“That opportunity shall, subject to security considerations and to the provisions of Article 40, be
equal to that enjoyed by the nationals of the Power in whose territory they are.”).

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support and that of his or her dependents. 111
10.7.2.2 Receipt of Allowances. Protected persons may in any case receive
allowances from their home country, the Protecting Power, or the relief societies referred to in
Article 30 of the GC (e.g., the ICRC). 112
10.7.3 Compulsory Work for Protected Persons in a Belligerent’s Home Territory.
Protected persons may be compelled to work only to the same extent as nationals of the party to
the conflict in whose territory they are. 113
If protected persons are of enemy nationality, they may only be compelled to do workthat is normally necessary to ensure the feeding, sheltering, clothing, transport, and health ofhuman beings and that is not directly related to the conduct of military operations. 114
In the cases mentioned in the two preceding paragraphs, protected persons compelled towork shall have the benefit of the same working conditions and of the same safeguards asnational workers, in particular as regards wages, hours of labor, clothing and equipment,
previous training, and compensation for occupational accidents and diseases. 115
If the above provisions are infringed, protected persons shall be allowed to exercise theirright of complaint in accordance with Article 30 of the GC. 116
10.7.4 Cancellation of Restrictive Measures After Hostilities. In so far as they have notbeen previously withdrawn, restrictive measures taken regarding protected persons shall becancelled as soon as possible after the close of hostilities. 117 Restrictive measures affecting theirproperty shall be cancelled, in accordance with the law of the Detaining Power, as soon as

111

GC art. 39 (“Where a Party to the conflict applies to a protected person methods of control which result in his
being unable to support himself, and especially if such a person is prevented for reasons of security from finding
paid employment on reasonable conditions, the said Party shall ensure his support and that of his dependents.”).
112

GC art. 39 (“Protected persons may in any case receive allowances from their home country, the Protecting
Power, or the relief societies referred to in Article 30.”).
113

GC art. 40 (“Protected persons may be compelled to work only to the same extent as nationals of the Party to theconflict in whose territory they are.”).
114

GC art. 40 (“If protected persons are of enemy nationality, they may only be compelled to do work which isnormally necessary to ensure the feeding, sheltering, clothing, transport and health of human beings and which is notdirectly related to the conduct of military operations.”).
115

GC art. 40 (“In the cases mentioned in the two preceding paragraphs, protected persons compelled to work shallhave the benefit of the same working conditions and of the same safeguards as national workers, in particular as
regards wages, hours of labour, clothing and equipment, previous training and compensation for occupational
accidents and diseases.”).
116

GC art. 40 (“If the above provisions are infringed, protected persons shall be allowed to exercise their right ofcomplaint in accordance with Article 30.”). Refer to § 10.5.6 (Facility for Applying to the Protecting Powers andAssistance Organizations Such as the ICRC).
117

GC art. 46 (“In so far as they have not been previously withdrawn, restrictive measures taken regarding protected
persons shall be cancelled as soon as possible after the close of hostilities.”).

684

possible after the close of hostilities. 118
10.8 EXPULSION FROM AREAS WITHIN A BELLIGERENT’S HOME TERRITORY AND DEPARTURE AND
TRANSFERS OF PROTECTED PERSONS FROM A BELLIGERENT’S HOME TERRITORY
10.8.1 Expulsion From Areas Within a Belligerent’s Home Territory. At the outbreak ofhostilities, a State may expel or bar the citizens or subjects of the enemy State from its seaports,
the area surrounding airbases, airports, and fortified places, areas of possible attack, and theactual or contemplated theaters of operation.
When such expulsion is decreed, the persons expelled should be given such reasonable
notice, consistent with public safety, as will enable them to arrange for the collection, disposal,
and removal of their goods and property, and for the settlement of their personal affairs. 119
Although such expulsion must be implemented in a humane manner, the provisions of the
GC addressing a State’s internment or assigned residence of civilians of an enemy State in its
home territory (Articles 41-45), including the transfer of internees to other countries, do not
apply to such expulsion. 120
10.8.2 Departures of Protected Persons From a Belligerent’s Home Territory. Allprotected persons who may desire to leave the territory at the outset of or during a conflict shallbe entitled to do so, unless their departure is contrary to the national interests of the State. 121 The
applications of such persons to leave shall be decided in accordance with regularly establishedprocedures, and the decision shall be taken as rapidly as possible. 122 Those persons permitted toleave may provide themselves with the necessary funds for their journey and take with them areasonable amount of their effects and articles of personal use. 123
118

GC art. 46 (“Restrictive measures affecting their property shall be cancelled, in accordance with the law of the
Detaining Power, as soon as possible after the close of hostilities.”).
119

See 1956 FM 27-10 (Change No. 1 1976) ¶27 (“In modern practice at the outbreak of hostilities the expulsion of
the citizens or subjects of the enemy is generally decreed from seaports, the area surrounding airbases, airports, andfortified places, areas of possible attack, and the actual or contemplated theaters of operation. When expulsion isdecreed, the persons expelled should be given such reasonable notice, consistent with public safety, as will enable
them to arrange for the collection, disposal, and removal of their goods and property and for the settlement of theirpersonal affairs. Such persons do not, however, benefit from the provisions of Articles 41 through 45, GC (pars.
280-284).”).
120

See II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 826 (“The internment procedurelaid down in Article 40 is similar to that provided for in Article 32 with regard to the authorization to leave theterritory. Article 40 also empowers a court or administrative board, to be selected by the Detaining Power, to takedecisions in cases of appeal against internment or assigned residence. The term ‘assigned residence’ obviously
denotes a measure applicable to one person or one family, not the prohibition to enter or reside in a specified zone
imposed upon an anonymous body of people such as all the nationals of a certain State.”).

121

GC art. 35 (“All protected persons who may desire to leave the territory at the outset of, or during a conflict, shallbe entitled to do so, unless their departure is contrary to the national interests of the State.”).
122

GC art. 35 (“The applications of such persons to leave shall be decided in accordance with regularly establishedprocedures and the decision shall be taken as rapidly as possible.”).
123

GC art. 35 (“Those persons permitted to leave may provide themselves with the necessary funds for their journey
and take with them a reasonable amount of their effects and articles of personal use.”).

685

If any such person is refused permission to leave the territory, he or she shall be entitledto have such refusal reconsidered as soon as possible by an appropriate court or administrative
board designated by the Detaining Power for that purpose. 124
Upon request, representatives of the Protecting Power shall, unless reasons of security
prevent it, or the persons concerned object, be furnished with the reasons for refusal of any
request for permission to leave the territory and be given, as expeditiously as possible, the namesof all persons who have been denied permission to leave. 125
Departures permitted under Article 35 of the GC shall be carried out in satisfactory
conditions as regards safety, hygiene, sanitation, and food. 126 All costs in connection therewith,from the point of exit in the territory of the Detaining Power, shall be borne by the country ofdestination or, in the case of accommodation in a neutral country, by the Power whose nationals
are benefited. 127 The practical details of such movements may, if necessary, be settled by special
agreements between the Powers concerned. 128
The foregoing shall not prejudice such special agreements as may be concluded between
parties to the conflict concerning the exchange and repatriation of their nationals in enemy
hands. 129
Protected persons who are confined pending proceedings or serving a sentence involving
loss of liberty shall be treated humanely during their confinement. 130 As soon as they are
released, they may ask to leave the territory in conformity with Articles 35 and 36 of the GC. 131
10.8.3 Transfers of Protected Persons From a Belligerent’s Home Territory.

124

GC art. 35 (“If any such person is refused permission to leave the territory, he shall be entitled to have such
refusal reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining
Power for that purpose.”).
125

GC art. 35 (“Upon request, representatives of the Protecting Power shall, unless reasons of security prevent it, or
the persons concerned object, be furnished with the reasons for refusal of any request for permission to leave theterritory and be given, as expeditiously as possible, the names of all persons who have been denied permission toleave.”).
126

GC art. 36 (“Departures permitted under the foregoing Article shall be carried out in satisfactory conditions as
regards safety, hygiene, sanitation and food.”).
127

GC art. 36 (“All costs in connection therewith, from the point of exit in the territory of the Detaining Power, shallbe borne by the country of destination, or, in the case of accommodation in a neutral country, by the Power whose
nationals are benefited.”).
128

GC art. 36 (“The practical details of such movements may, if necessary, be settled by special agreements between
the Powers concerned.”).

129

GC art. 36 (“The foregoing shall not prejudice such special agreements as may be concluded between Parties tothe conflict concerning the exchange and repatriation of their nationals in enemy hands.”).
130

GC art. 37 (“Protected persons who are confined pending proceedings or serving a sentence involving loss ofliberty, shall during their confinement be humanely treated.”).
131

GC art. 37 (“As soon as they are released, they may ask to leave the territory in conformity with the foregoing
Articles.”).

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10.8.3.1 Requirements for Transfer. Protected persons shall not be transferred toa Power that is not a Party to the GC. 132 This provision shall in no way constitute an obstacle to
the repatriation of protected persons, or to their return to their country of residence after the
cessation of hostilities. 133
Protected persons may be transferred by the Detaining Power only to a Power that is a
Party to the GC and after the Detaining Power has satisfied itself of the willingness and ability ofsuch receiving Power to apply the GC. 134
In no circumstances shall a protected person be transferred to a country where he or she
may have reason to fear persecution for his or her political opinions or religious beliefs. 135 In
addition, U.S. policy provides that no detainee shall be transferred to another State if it is more
likely than not that the detainee would be tortured in the receiving country. 136
The provisions of Article 45 of the GC do not constitute an obstacle to the extradition,
under extradition treaties concluded before the outbreak of hostilities, of protected persons
accused of offenses against ordinary criminal law. 137
10.8.3.2 Responsibility Upon Transfer. If protected persons are transferred undersuch circumstances, responsibility for the application of the GC rests on the Power accepting
them, while they are in its custody. 138 Nevertheless, if that Power fails to carry out theprovisions of the GC in any important respect, the Power by which the protected persons weretransferred shall, upon being so notified by the Protecting Power, take effective measures tocorrect the situation or shall request the return of the protected persons. 139 Such request must becomplied with. 140

132

GC art. 45 (“Protected persons shall not be transferred to a Power which is not a party to the Convention.”).

133

GC art. 45 (“This provision shall in no way constitute an obstacle to the repatriation of protected persons, or totheir return to their country of residence after the cessation of hostilities.”).
134

GC art. 45 (“Protected persons may be transferred by the Detaining Power only to a Power which is a party to thepresent Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee
Power to apply the present Convention.”).
135

GC art. 45 (“In no circumstances shall a protected person be transferred to a country where he or she may havereason to fear persecution for his or her political opinions or religious beliefs.”).
136

Refer to § 8.14.4.1 (U.S. Policy Prohibiting Transfers in Cases in Which Detainees Would Likely Be Tortured).

137

GC art. 45 (“The provisions of this Article do not constitute an obstacle to the extradition, in pursuance of
extradition treaties concluded before the outbreak of hostilities, of protected persons accused of offences against
ordinary criminal law.”).
138

GC art. 45 (“If protected persons are transferred under such circumstances, responsibility for the application of
the present Convention rests on the Power accepting them, while they are in its custody.”).
139

GC art. 45 (“Nevertheless, if that Power fails to carry out the provisions of the present Convention in any
important respect, the Power by which the protected persons were transferred shall, upon being so notified by theProtecting Power, take effective measures to correct the situation or shall request the return of the protected
persons.”).
140

GC art. 45 (“Such request must be complied with.”).

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10.9 INTERNMENT
The parties to the conflict shall not intern protected persons, except in accordance withthe provisions of Articles 41, 42, 43, 68, and 78 of the GC. 141
10.9.1 Principles Underlying the Internment of Protected Persons Compared to Those
Underlying POW Internment. In some respects, the principles underlying the internment ofprotected persons are similar to the principles underlying the internment of POWs. 142 For
example, the internment of protected persons is non-punitive, the Detaining Power is responsible
for the treatment of internees in its custody, and humane treatment is required.
However, the GC recognizes that the internment of protected persons is quite different incharacter from that of POWs by requiring the separation of internees from POWs. 143 Protected
persons interned for security reasons, in theory, have not participated in hostilities. 144 Thus, theirinternment shall cease when the reasons that have necessitated it have ceased, which may occur
before the end of the conflict. 145 In practice, however, internment for security reasons may
involve persons who have participated in hostilities, and such persons’ continued detention forthe duration of the conflict may be justified in order to prevent their further participation in theconflict.
On the other hand, internees are not members of the armed forces and, thus, in certain
respects, have not earned the special privileges that POWs have earned. 146 For example,
although internees receive allowances, internees do not receive specified advances of pay like
POWs. 147 Similarly, internees who have successfully escaped do not benefit from the immunityfrom punishment applicable to POWs who have successfully escaped. 148
10.9.2 Procedure for Internment or Assigned Residence on Home Territory.
10.9.2.1 Internment or Assigned Residence Only if Absolutely Necessary. Theinternment or placing in assigned residence of protected persons may be ordered only if the141
GC art. 79 (“The Parties to the conflict shall not intern protected persons, except in accordance with theprovisions of Articles 41, 42, 43, 68 and 78.”).
142

Refer to § 9.2 (General Principles Applicable to the Treatment of POWs).

143

Refer to § 10.10.1 (Segregation From Other Types of Detainees).

144

GC COMMENTARY 368 (“The persons subjected to these measures [of assigned residence or internment inaccordance with Article 78 of the GC] are not, in theory, involved in the struggle. The precautions taken with regard
to them cannot, therefore, be in the nature of a punishment.”).
145

Refer to § 10.9.5 (Release As Soon As Reasons for Internment No Longer Exist).

146

See, e.g., II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 681 (“Mr. WERSHOF(Canada) suggested that the first paragraph should be deleted. He failed to see why the Detaining Power shouldmake an allowance of any kind to enemy aliens whom it considered dangerous. He was of the opinion that theanalogy between internees and prisoners of war had been carried too far. Prisoners of war had earned a standard oftreatment which had not been earned by internees.”).

147

Refer to § 10.19.2 (Internee Allowances); § 9.18.3 (Advance of Pay).

148

Refer to § 10.26 (Internee Escapes); § 9.25.1 (No Punishment for Successful Escape).

688

security of the Detaining Power makes it absolutely necessary. 149
10.9.2.2 Voluntary Internment. If any person, acting through the representativesof the Protecting Power, voluntarily demands internment, and if his or her situation renders thisstep necessary, he or she shall be interned by the Power in whose hands he or she may be. 150
10.9.2.3 Reconsideration and Periodic Review. Any protected person who has
been interned or placed in assigned residence shall be entitled to have such action reconsidered
as soon as possible by an appropriate court or administrative board designated by the Detaining
Power for that purpose. 151 If the internment or placing in assigned residence is maintained, thecourt or administrative board shall periodically, and at least twice yearly, give consideration tohis or her case, with a view to the favorable amendment of the initial decision, if circumstances
permit. 152
10.9.2.4 Notification to the Protecting Power. Unless the protected persons
concerned object, the Detaining Power shall, as rapidly as possible, give the Protecting Powerthe names of any protected persons who have been interned or subjected to assigned residence,or who have been released from internment or assigned residence. 153 The decisions of the courts
or boards mentioned in the first paragraph of Article 43 of the GC shall also, subject to the same
conditions, be notified as rapidly as possible to the Protecting Power. 154
10.9.3 Procedure for Internment or Assigned Residence in Occupied Territory. The
requirements in the GC for the procedure for assigned residence or internment of protected
persons in occupied territory are not as elaborate as those applicable in a belligerent’s hometerritory because of concerns that it would not be practicable to implement the requirements
applicable in a belligerent’s home territory in view of the disorder that might prevail in occupied
territory. 155
149

GC art. 42 (“The internment or placing in assigned residence of protected persons may be ordered only if the
security of the Detaining Power makes it absolutely necessary.”).
150

GC art. 42 (“If any person, acting through the representatives of the Protecting Power, voluntarily demands
internment, and if his situation renders this step necessary, he shall be interned by the Power in whose hands he maybe.”).
151

GC art. 43 (“Any protected person who has been interned or placed in assigned residence shall be entitled to havesuch action reconsidered as soon as possible by an appropriate court or administrative board designated by the
Detaining Power for that purpose.”).
152

GC art. 43 (“If the internment or placing in assigned residence is maintained, the court or administrative board
shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable
amendment of the initial decision, if circumstances permit.”).
153

GC art. 43 (“Unless the protected persons concerned object, the Detaining Power shall, as rapidly as possible,
give the Protecting Power the names of any protected persons who have been interned or subjected to assigned
residence, or who have been released from internment or assigned residence.”).
154

GC art. 43 (“The decisions of the courts or boards mentioned in the first paragraph of the present Article shallalso, subject to the same conditions, be notified as rapidly as possible to the Protecting Power.”).
155

See II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 773 (“[T]he Drafting Committee
had felt that in view of the disorder which might prevail in occupied territory, it would not be practicable to lay
down an elaborate procedure for internement, similar to that provided for the territory of a Party to the conflict.

689

10.9.3.1 Internment or Assigned Residence for Imperative Reasons of Security. If
the Occupying Power considers it necessary, for imperative reasons of security, to take safetymeasures concerning protected persons, it may, at the most, subject them to assigned residenceor to internment. 156
Decisions regarding such assigned residence or internment shall be made according to aregular procedure to be prescribed by the Occupying Power in accordance with the provisions of
the GC. 157 This procedure shall include the right of appeal for the parties concerned. 158 Appeals
shall be decided with the least possible delay. 159 In the event of the decision being upheld, it
shall be subject to periodic review, if possible every six months, by a competent body set up by
the Occupying Power. 160 “Competent bodies” to review the internment or assigned residence ofprotected persons may be created with advisory functions only, leaving the final decision to ahigh official of the Government. 161
10.9.3.2 Internment for Minor Offenses Directed Against the Occupying Power.
Protected persons who commit an offense that is solely intended to harm the Occupying Power,
but that does not constitute an attempt on the life or limb of members of the occupying forces oradministration, nor a grave collective danger, nor seriously damage the property of theoccupying forces or administration or the installations used by them, shall be liable to internment
or simple imprisonment, provided the duration of such internment or imprisonment is
proportionate to the offense committed. 162 Furthermore, internment or imprisonment shall, for

They had felt that it would be wiser to content themselves with making the Occupying Power responsible forestablishing a regular and systematic procedure to suit the circumstances. The Occupying Power would then haveno excuse for making arbitrary decisions regarding internment.”).
156

GC art. 78 (“If the Occupying Power considers it necessary, for imperative reasons of security, to take safetymeasures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.”).
157

GC art. 78 (“Decisions regarding such assigned residence or internment shall be made according to a regularprocedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention.”).
158

GC art. 78 (“This procedure shall include the right of appeal for the parties concerned.”).

159

GC art. 78 (“Appeals shall be decided with the least possible delay.”).

160

GC art. 78 (“In the event of the decision being upheld, it shall be subject to periodical review, if possible every
six months, by a competent body set up by the said Power.”).
161

1956 FM 27-10 (Change No. 1 1976) ¶433b (“‘Competent bodies’ to review the internment or assigned residenceof protected persons may be created with advisory functions only, leaving the final decision to a high official of theGovernment.”); SENATE EXECUTIVE REPORT 84-9, Geneva Conventions for the Protection of War Victims: Reportof the Committee on Foreign Relations on Executives D, E, F, and G, 82nd Congress, First Session, 22 (Jun. 27,
1955) (“In article 78 it is likewise provided that persons who have been placed in internment or assigned residencein occupied territory, shall be entitled to review or reconsideration by a ‘competent body.’ From information
furnished to the committee by the executive branch it appears that the administrative boards and the competentbodies contemplated by the three articles to reconsider decisions in these cases may be created with advisory
functions only, leaving the final decision to a high official or officer of the government. This understanding of theprovisions appears to be a reasonable one to the committee.”).
162

Refer to § 11.11.4 (Limitations on Penalties for Certain, Non-Serious Offenses Solely Intended to Harm the
Occupying Power).

690

such offenses, be the only measure adopted for depriving protected persons of liberty. 163 The
courts provided for under Article 66 of the GC may at their discretion convert a sentence ofimprisonment to one of internment for the same period. 164
10.9.4 Maintenance of Internees. Parties to the conflict who intern protected persons
shall be bound to provide free of charge for their maintenance, and to grant them also the
medical attention required by their state of health. 165 No deduction from the allowances,salaries, or credits due to the internees shall be made for the repayment of these costs. 166 The
Detaining Power shall provide for the support of those dependent on the internees, if suchdependents are without adequate means of support or are unable to earn a living. 167
10.9.5 Release As Soon As Reasons for Internment No Longer Exist. Each interned
person shall be released by the Detaining Power as soon as the reasons that necessitated his or
her internment no longer exist. 168
10.9.6 Agreements for the Release, Return, or Accommodation in a Neutral Country of
Certain Classes of Internees. The parties to the conflict shall endeavor during the course of
hostilities to conclude agreements for the release, the repatriation, the return to places ofresidence, or the accommodation in a neutral country of certain classes of internees, in particularchildren, pregnant women, and mothers with infants and young children, wounded and sick, andinternees who have been detained for a long time. 169
10.10 SEGREGATION OF INTERNEES
10.10.1 Segregation From Other Types of Detainees. Internees shall be accommodated
and administered separately from POWs and from persons deprived of liberty for any otherreason. 170 This rule reflects the difference in character between the internment of internees from
163

Refer to § 11.11.4.1 (Internment or Imprisonment as the Only Measure Adopted for Depriving Protected Personsof Liberty for Such Offenses).
164

Refer to § 11.11.4.2 (Discretion of Non-Political, Military Courts to Convert Sentences of Imprisonment to
Sentences of Internment).
165

GC art. 81 (“Parties to the conflict who intern protected persons shall be bound to provide free of charge for theirmaintenance, and to grant them also the medical attention required by their state of health.”).
166

GC art. 81 (“No deduction from the allowances, salaries or credits due to the internees shall be made for the
repayment of these costs.”).
167

GC art. 81 (“The Detaining Power shall provide for the support of those dependent on the internees, if suchdependents are without adequate means of support or are unable to earn a living.”).
168

GC art. 132 (“Each interned person shall be released by the Detaining Power as soon as the reasons which
necessitated his internment no longer exist.”).
169

GC art. 132 (“The Parties to the conflict shall, moreover, endeavour during the course of hostilities, to conclude
agreements for the release, the repatriation, the return to places of residence or the accommodation in a neutral
country of certain classes of internees, in particular children, pregnant women and mothers with infants and young
children, wounded and sick, and internees who have been detained for a long time.”).
170

GC art. 84 (“Internees shall be accommodated and administered separately from prisoners of war and frompersons deprived of liberty for any other reason.”).

691

other types of detention or confinement. 171
10.10.2 Accommodation According to Nationality, Language, and Customs. The
Detaining Power shall, as far as possible, accommodate the internees according to theirnationality, language, and customs. 172 Unlike the comparable rule in the GPW, this provision
has the qualification “as far as possible” because of the competing interest in leaving internees
near their families and because POWs are generally automatically grouped by nationality as aconsequence of the circumstances of their capture. 173 Internees who are nationals of the same
country shall not be separated merely because they speak different languages. 174
10.10.3 Families Kept Together. Throughout the duration of their internment, membersof the same family, and in particular parents and children, shall be lodged together in the sameplace of internment, except when separation of a temporary nature is necessitated for reasons of
employment or health or for the purposes of enforcement of the provisions of Chapter IX (Penal
and Disciplinary Sanctions) of Section IV of the GC. 175 Keeping families together during
internment is intended to improve the morale and welfare of internees. 176
Internees may request that their children who are left at liberty without parental care shallbe interned with them. 177 For example, two parents who are interned together may request that
171

GC COMMENTARY 384 (“This provision shows once more that the detention of internees is quite different incharacter from that of prisoners of war or common criminals. Internment is simply a precautionary measure andshould not be confused with the penalty of imprisonment.”).

172

GC art. 82 (“The Detaining Power shall, as far as possible, accommodate the internees according to theirnationality, language and customs.”).
173

GC COMMENTARY 380 (“This paragraph corresponds to paragraph 3 of Article 22 of the Convention relative to
the Treatment of Prisoners of War. It states, but in less mandatory form, the principIe that internees should begrouped, adding the words ‘as far as possible’ which do not occur in the Prisoners of War Convention. Indeed,prisoners of war generally fall into groups of the same nationality as a natural consequence of being captured
together and grouping can be organized to a certain extent automatically. The grouping of civilians, on the other
hand, who are taken into custody separately and sometimes coming from places distant from one another, presents
some difficulties. It is better in certain cases to leave the internees near their families rather than to send them to a
distance, in order to reunite them with persons of the same language and nationality. It is for this reason that Article
82 of the Fourth Convention is not mandatory.”). Refer to § 9.12.1 (Assembling According to Nationality,
Language, and Customs).
174

GC art. 82 (“Internees who are nationals of the same country shall not be separated merely because they havedifferent languages.”).
175

GC art. 82 (“Throughout the duration of their internment, members of the same family, and in particular parents
and children, shall be lodged together in the same place of internment, except when separation of a temporary natureis necessitated for reasons of employment or health or for the purposes of enforcement of the provisions of Chapter
IX of the present Section.”).
176

See GC COMMENTARY 380-81 (“The experience of the Second World War showed that internment was far lessdifficult to bear whenever internees could be grouped together in families. In India, Rhodesia, Kenya, Uganda,
Tanganyika, Eritrea and France (at Vittel), such groups were successfully organized and the morale of the internees
was better in those places than in other places of internment. Children benefited from the presence of their parents
and were able to attend the school set up inside the camp. It is to the results of this experience which paragraphs 2
and 3 try to give permanent form in accordance with the recommendations of the experts.”).
177

GC art. 82 (“Internees may request that their children who are left at liberty without parental care shall beinterned with them.”).

692

their children be interned with them, but one of the parents would not be able to request theinternment of a child being cared for by a parent who was not being interned. 178
Wherever possible, interned members of the same family shall be housed in the same
premises and given separate accommodation from other internees, together with facilities forleading a proper family life. 179
10.11 SAFETY, HYGIENE, AND LIVING CONDITIONS IN PLACES OF INTERNMENT
10.11.1 Safety of Places of Internment.
10.11.1.1 Avoidance of Particularly Dangerous Areas. The Detaining Powershall not set up places of internment in areas particularly exposed to the dangers of war. 180
10.11.1.2 Sharing Information on the Location of Places of Internment.
Detaining Powers shall give enemy Powers, through the intermediary of the Protecting Powers,
all useful information regarding the geographic location of places of internment. 181
10.11.1.3 Marking of Internment Camps. Whenever military considerations
permit, internment camps shall be indicated by the letters “IC,” placed so as to be clearly visible
in the daytime from the air. 182 The Powers concerned may, however, agree upon any othersystem of marking. 183 No place, other than an internment camp, shall be marked as such. 184
The caveat that internment camps need to be marked, as such, only when militaryconsiderations permit was intended to allow for camps not to be marked, e.g., if such
identification would enable an Enemy Power to instigate a revolt in the camp, provide weapons
to the internees, enable escape attempts, etc. 185
178

GC COMMENTARY 381 (“The report of the Third Committee indicates that the addition of the words ‘withoutparental care’ is intended to show that if only one of the parents is interned, he or she would not have the right,
under the Convention, to demand the internment of a child being cared for by the other parent. On the other hand,the father and mother would have the right to demand such internment if they were interned together.”).
179
GC art. 82 (“Wherever possible, interned members of the same family shall be housed in the same premises andgiven separate accommodation from other internees, together with facilities for leading a proper family life.”).
180

GC art. 83 (“The Detaining Power shall not set up places of internment in areas particularly exposed to thedangers of war.”).
181

GC art. 83 (“The Detaining Power shall give the enemy Powers, through the intermediary of the Protecting
Powers, all useful information regarding the geographical location of places of internment.”).
182

GC art. 83 (“Whenever military considerations permit, internment camps shall be indicated by the letters IC,
placed so as to be clearly visible in the daytime from the air.”).
183

GC art. 83 (“The Powers concerned may, however, agree upon any other system of marking.”).

184

GC art. 83 (“No place other than an internment camp shall be marked as such.”).

185

GC COMMENTARY 383 (“At the very beginning of hostilities during the Second World War, the International
Committee of the Red Cross appealed to belligerents to mark their prisoner-of-war camps to protect them against
bombing. Fearing that this would provide landmarks for the enemy air force, the Powers rejected the appeal.
However, prisoners adopted the habit of displaying markings during the day consisting of large panels bearing theletters PG or PW. This method was approved by the Diplomatic Conference. It is, however, subject to an important693

10.11.1.4 Air-Raid Shelters and Protective Measures for Internees. In all placesof internment exposed to air raids and other hazards of war, shelters adequate in number andstructure to ensure the necessary protection shall be installed. 186 In case of alarms, the internees
shall be free to enter such shelters as quickly as possible, excepting those who remain for theprotection of their quarters against these hazards. 187 Any protective measures taken in favor of
the population shall also apply to the internees. 188
10.11.1.5 Fire Precautions. All due precautions must be taken in places ofinternment against the danger of fire. 189
10.11.2 Hygiene of Places of Internment. In no case shall permanent places ofinternment be situated in unhealthy areas, or in districts the climate of which is injurious to theinternees. 190 In all cases where the district in which a protected person is temporarily interned isin an unhealthy area, or has a climate that is harmful to his or her health, he or she shall be
removed to a more suitable place of internment as rapidly as circumstances permit. 191
10.11.2.1 Sanitary Conveniences (e.g., latrines, bathrooms). Internees shall havefor their use, day and night, sanitary conveniences that conform to the rules of hygiene and are
constantly maintained in a state of cleanliness. 192 The term “sanitary conveniences” should betaken to mean primarily the latrines. 193 Access to the latrines at night is specified in the 1949
Geneva Conventions because this was a frequent problem in POW camps in World War II. 194

reservation drafted in the same way in the case of prisoners of war and of civilian internees: ‘whenever militaryconsiderations permit’. This means that in the case of civilian internment camps, the daytime marking by means of
the letters IC could be discontinued if the Detaining Power feared, for example, a parachute drop of arms to help theinternees to revolt.”).
186

GC art. 88 (“In all places of internment exposed to air raids and other hazards of war, shelters adequate innumber and structure to ensure the necessary protection shall be installed.”).
187

GC art. 88 (“In case of alarms, the internees shall be free to enter such shelters as quickly as possible, excepting
those who remain for the protection of their quarters against the aforesaid hazards.”).
188

GC art. 88 (“Any protective measures taken in favour of the population shall also apply to them.”).

189

GC art. 88 (“All due precautions must be taken in places of internment against the danger of fire.”).

190

GC art. 85 (“In no case shall permanent places of internment be situated in unhealthy areas, or in districts theclimate of which is injurious to the internees.”).
191

GC art. 85 (“In all cases where the district, in which a protected person is temporarily interned, is in an unhealthy
area or has a climate which is harmful to his health, he shall be removed to a more suitable place of internment as
rapidly as circumstances permit.”).
192

GC art. 85 (“Internees shall have for their use, day and night, sanitary conveniences which conform to the rulesof hygiene and are constantly maintained in a state of cleanliness.”).
193

GC COMMENTARY 387 (“The term ‘sanitary conveniences’ should be taken to mean primarily the latrines, inconformity with the similar provision contained in paragraph 2 of Article 29 of the Third Convention. These
conveniences should be so constructed as to preserve decency and cleanliness and must be sufficiently numerous.
They should be inspected periodically by the health authorities.”).
194

See GC COMMENTARY 387 (“During the Second World War prisoners of war were sometimes forbidden to leave
their quarters during the night. The Convention relative to the Protection of Civilian Persons in Time of War, like694

In certain circumstances, women internees shall be provided separate sanitaryconveniences for their use. 195
10.11.2.2 Showers, Baths, Personal Toilet, and Laundry. Internees shall be
provided with sufficient water and soap for their daily personal toilet and for washing theirpersonal laundry; installations and facilities necessary for this purpose shall be granted tothem. 196
Showers or baths shall also be available. 197 The necessary time shall be set aside forwashing and for cleaning. 198 Although the frequency of baths or showers is not specified in theGC, a reasonable opportunity (e.g., considering the available resources, the internees’ cultural
practices, the activities in which they are engaged) should be afforded. 199
10.11.3 Conditions of Buildings and Quarters. The Detaining Power is bound to take allnecessary and possible measures to ensure that protected persons shall, from the outset of theirinternment, be accommodated in buildings or quarters that afford every possible safeguard inregard to hygiene and health, and provide efficient protection against the rigors of the climate
and the effects of the war. 200
The premises shall be fully protected from dampness and adequately heated and lighted,
in particular between dusk and lights out. 201 The sleeping quarters shall be sufficiently spacious
and well ventilated, and the internees shall have suitable bedding and sufficient blankets, withaccount being taken of the climate and of the age, sex, and state of health of the internees. 202
10.11.3.1 Separate Sleeping Quarters and Latrines for Women. Whenever it isnecessary, as an exceptional and temporary measure, to accommodate women internees who are
not members of a family unit in the same place of internment as men, women internees shall be
the Prisoners of War Convention, stipulates that internees should have sanitary conveniences for their use day andnight.”). Refer to § 9.11.5.2 (Sanitary Conveniences (e.g., latrines, bathrooms)).
195

Refer to § 10.11.3.1 (Separate Sleeping Quarters and Latrines for Women).

196

GC art. 85 (“They shall be provided with sufficient water and soap for their daily personal toilet and for washing
their personal laundry; installations and facilities necessary for this purpose shall be granted to them.”).
197

GC art. 85 (“Showers or baths shall also be available.”).

198

GC art. 85 (“The necessary time shall be set aside for washing and for cleaning.”).

199

GC COMMENTARY 387 (“The Government Experts had wished to lay down definitely the frequency with whichbaths could be taken. This idea was not accepted, but one bath or shower per week can be considered reasonable.”).
200

GC art. 85 (“The Detaining Power is bound to take all necessary and possible measures to ensure that protected
persons shall, from the outset of their internment, be accommodated in buildings or quarters which afford every
possible safeguard as regards hygiene and health, and provide efficient protection against the rigours of the climate
and the effects of the war.”).
201

GC art. 85 (“The premises shall be fully protected from dampness, adequately heated and lighted, in particularbetween dusk and lights out.”).
202
GC art. 85 (“The sleeping quarters shall be sufficiently spacious and well ventilated, and the internees shall havesuitable bedding and sufficient blankets, account being taken of the climate, and the age, sex, and state of health of
the internees.”).

695

provided separate sleeping quarters and sanitary conveniences for their use. 203
10.12 CANTEENS FOR INTERNEESCanteens shall be installed in every place of internment, except where other suitablefacilities are available. 204 As with canteens for POWs, the purpose of the canteen is to increase
the morale and comfort of the internees. 205
10.12.1 Establishment of the Canteen. Although canteens for POWs are required,canteens for civilian internees are not required if other suitable facilities, such as local shops, areavailable. 206
If other suitable facilities are not available, and before canteens can be established, theneed for a canteen may be mitigated if internees are provided a free “comfort pack.” 207
10.12.2 Canteen Stock and Prices. The purpose of the canteens shall be to enableinternees to make purchases, at prices not higher than local market prices, of foodstuffs andarticles of everyday use, including soap and tobacco, such as would increase their personal wellbeing and comfort. 208
Internees are not entitled to more favorable treatment than the population at large withrespect to canteen facilities, and are equally subject to regulations, such as those pertaining torationing, which are applied to the population generally. 209
10.12.3 Canteen Management and Profits. Canteen profits shall be credited to a welfare
fund to be set up for each place of internment, and administered for the benefit of the internees

203

GC art. 85 (“Whenever it is necessary, as an exceptional and temporary measure, to accommodate womeninternees who are not members of a family unit in the same place of internment as men, the provision of separate
sleeping quarters and sanitary conveniences for the use of such women internees shall be obligatory.”).
204

GC art. 87 (“Canteens shall be installed in every place of internment, except where other suitable facilities areavailable.”).
205

Refer to § 9.17 (Canteens for POWs).

206

GC COMMENTARY 389 (“Whereas the establishment of canteens for prisoners of war is obligatory (Third
Convention, Article 28, paragraph I), civilian internees will only be provided with canteens where other suitablefacilities are not available. Indeed, there could be no question of establishing canteens if, for example, the internees
were permitted to go to local shops to make purchases.”).
207

Compare § 9.17.1.1 (“Comfort Pack” Instead of Canteen and Advance of Pay).

208

GC art. 87 (“Their purpose shall be to enable internees to make purchases, at prices not higher than local market
prices, of foodstuffs and articles of everyday use, including soap and tobacco, such as would increase their personal
well-being and comfort.”).
209

See II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 837 (“The general view was,however, that Article 76 was simply a ‘morale-sustaining’ Article, and that the internee was simply to be given the
chance of purchasing, for example, a particular kind of soap, of his own choice, in substitution for a corresponding
amount of the kind which the Detaining Power would normally provide under Article 75. It would be unreasonable
in any case to contend that the provision of canteens was intended to put the internee in a superior position to the
population at large.”).

696

attached to such place of internment. 210 The Internee Committee shall have the right to checkthe management of the canteen and of the fund. 211
When a place of internment is closed down, the balance of the welfare fund shall betransferred to the welfare fund of a place of internment for internees of the same nationality, or,if such a place does not exist, to a central welfare fund that shall be administered for the benefitof all internees remaining in the custody of the Detaining Power. 212 In case of a general release,the profits shall be kept by the Detaining Power, subject to any agreement to the contrary
between the Powers concerned. 213
10.13 FOOD, WATER, TOBACCO, AND CLOTHING FOR INTERNEES
10.13.1 Food for Internees. Daily food rations for internees shall be sufficient inquantity, quality, and variety to keep internees in a good state of health and prevent thedevelopment of nutritional deficiencies. 214
10.13.1.1 Accounting for the Customary Diet. Account shall also be taken of thecustomary diet of the internees. 215 For example, the internee’s cultural and religious
requirements should be considered in determining and ensuring the appropriate diet.
10.13.1.2 Additional Food for Certain Groups. Internees who work shall receive
additional rations in proportion to the kind of labor that they perform. 216 Expectant and nursing
mothers, and children under fifteen years of age, shall be given additional food, in proportion totheir physiological needs. 217
10.13.1.3 No Disciplinary Reductions in Food Rations. The reduction in food210

GC art. 87 (“Profits made by canteens shall be credited to a welfare fund to be set up for each place ofinternment, and administered for the benefit of the internees attached to such place of internment.”).
211

GC art. 87 (“The Internee Committee provided for in Article 102 shall have the right to check the management of
the canteen and of the said fund.”).
212

GC art. 87 (“When a place of internment is closed down, the balance of the welfare fund shall be transferred to
the welfare fund of a place of internment for internees of the same nationality, or, if such a place does not exist, to acentral welfare fund which shall be administered for the benefit of all internees remaining in the custody of the
Detaining Power.”).
213

GC art. 87 (“In case of a general release, the said profits shall be kept by the Detaining Power, subject to any
agreement to the contrary between the Powers concerned.”).
214

GC art. 89 (“Daily food rations for internees shall be sufficient in quantity, quality and variety to keep internees
in a good state of health and prevent the development of nutritional deficiencies.”).
215

GC art. 89 (“Account shall also be taken of the customary diet of the internees.”).

216

GC art. 89 (“Internees who work shall receive additional rations in proportion to the kind of labour which they
perform.”).
217

GC art. 89 (“Expectant and nursing mothers, and children under fifteen years of age, shall be given additional
food, in proportion to their physiological needs.”).

697

rations as a disciplinary punishment is specifically prohibited. 218
10.13.1.4 Means for Preparing Additional Food. Internees shall be given themeans by which they can prepare for themselves any additional food in their possession. 219
10.13.2 Drinking Water. Sufficient drinking water shall be supplied to internees. 220
10.13.3 Use of Tobacco. The use of tobacco shall be permitted. 221 The Detaining Poweris not required to give tobacco to internees, but should offer it for sale at the canteen, if one isestablished. 222 The Detaining Power may impose reasonable restrictions on smoking to ensurethat the camp is a healthful and safe environment.
10.13.4 Clothing of Internees. When taken into custody, internees shall be given all
facilities to provide themselves with the necessary clothing, footwear, and change of underwear,
and, later on, to procure further supplies, if required. 223 Should any internees not have sufficient
clothing, account being taken of the climate, and be unable to procure any, it shall be provided
free of charge to them by the Detaining Power. 224
10.13.4.1 No Humiliating Clothing. The clothing supplied by the Detaining
Power to internees and the outward markings placed on their own clothes shall not be
ignominious nor expose them to ridicule. 225 For example, clothing provided to them should notresemble convicts’ uniforms or be intended to humiliate them. 226
10.13.4.2 Clothing for Work. Workers shall receive suitable working outfits,

218

Refer to § 10.20.3.2 (Prohibition Against Prolonged Standing, Roll-Calls, Punishment Drill, Military Drill andManuevers, or the Reduction of Food Rations).
219

GC art. 89 (“Internees shall also be given the means by which they can prepare for themselves any additional
food in their possession.”).
220

GC art. 89 (“Sufficient drinking water shall be supplied to internees.”).

221

GC art. 89 (“The use of tobacco shall be permitted.”).

222

Refer to § 10.12.2 (Canteen Stock and Prices).

223

GC art. 90 (“When taken into custody, internees shall be given all facilities to provide themselves with thenecessary clothing, footwear and change of underwear, and later on, to procure further supplies if required.”).
224

GC art. 90 (“Should any internees not have sufficient clothing, account being taken of the climate, and be unable
to procure any, it shall be provided free of charge to them by the Detaining Power.”).
225

GC art. 90 (“The clothing supplied by the Detaining Power to internees and the outward markings placed on theirown clothes shall not be ignominious nor expose them to ridicule.”).
226

See GC COMMENTARY 397 (“These provisos are connected with Articie 27 of the Convention stating that
protected persons are entitled, in all circumstances, to respect for their persons and their honour. It is essential toprevent internees from being forced to wear convicts’ uniforms or other uniforms of a similar nature, as was the casein certain concentration camps of hateful memory. The plenipotentiaries were unanimous in 1949 in disapprovingof such practices and although paragraph 1 had already, as it were, implied that disapproval, they felt that theyshould reaffirm it explicitly at this point. It must, indeed, always be remembered that internment is not apunishment and cannot in any way besmirch anyone's honour.”).

698

including protective clothing, whenever the nature of their work so requires. 227
10.14 MEDICAL ATTENTION FOR INTERNEES
Parties to the conflict who intern protected persons shall be bound to grant them the
medical attention required by their state of health. 228
10.14.1 Access to Medical Attention.
10.14.1.1 Camp Infirmary. Every place of internment shall have an adequate
infirmary, under the direction of a qualified doctor, where internees may have the attention theyrequire, as well as an appropriate diet. 229 Isolation wards shall be set aside for cases ofcontagious or mental diseases. 230
10.14.1.2 Right of Internees to Present Themselves for Examination. Internees
may not be prevented from presenting themselves to the medical authorities for examination. 231
The GC appears to contemplate that the internees would have daily sick call in which they could
present themselves for medical examination, because it provides for internees who areundergoing disciplinary punishment to request to attend this inspection. 232 The right of internees
to present themselves for examination does not mean that the internees must necessarily be
examined every day by a doctor, nor does it preclude disciplinary punishment if internees
abusively (on the basis of the doctor’s report) make groundless requests for medical
examination. 233
10.14.1.3 Monthly Medical Inspections. Medical inspections of internees shall bemade at least once a month. 234 Their purpose shall be, in particular, to supervise the general state
227

GC art. 90 (“Workers shall receive suitable working outfits, including protective clothing, whenever the nature of
their work so requires.”).
228

GC art. 81 (“Parties to the conflict who intern protected persons shall be bound to provide free of charge for theirmaintenance, and to grant them also the medical attention required by their state of health.”).
229

GC art. 91 (“Every place of internment shall have an adequate infirmary, under the direction of a qualified
doctor, where internees may have the attention they require, as well as an appropriate diet.”).
230

GC art. 91 (“Isolation wards shall be set aside for cases of contagious or mental diseases.”).

231

GC art. 91 (“Internees may not be prevented from presenting themselves to the medical authorities for
examination.”).
232

GC COMMENTARY 401 (“Although the fact is not mentioned in this paragraph [4 of Article 91 of the GC], a daily
medical inspection will take place in places of internment. This follows, as will be seen further on, from Article
125. Internees will thus be able to report sick when they are ill, so as to receive medical attention without delay.”).
Refer to § 10.28.6.3 (Attendance at Daily Medical Inspection and Medical Attention).
233

GC COMMENTARY 495-96 (“It was only logical to consider that the Detaining Power should arrange in every
place of internment for a daily medical inspection and this paragraph [paragraph 2 of Article 125 of the GC] makes
this important point quite clear. This does not mean, however, that internees must necessarily be examined every
day by the doctor. The guards will not be entitled to forbid the internees to present themselves for daily medical
examination; if the request to go on sick parade turns out to be groundless and upsets the maintenance of discipline,
the offence may be considered as calling for disciplinary punishment by the commandant of the place of internmenton the basis of the doctor’s report.”).

234

GC art. 92 (“Medical inspections of internees shall be made at least once a month.”).

699

of health, nutrition, and cleanliness of internees, and to detect contagious diseases, especiallytuberculosis, malaria, and venereal diseases. 235 Such inspections shall include, in particular, thechecking of weight of each internee and, at least once a year, radioscopic examination. 236
10.14.2 Compulsory Medical Treatment. Because internees are subject to the laws inforce in the territory in which they are detained, 237 internees may be ordered to undergo medical
treatment to the extent that other persons in that territory may be so ordered.
10.14.3 Medical Treatment for Internees.
10.14.3.1 Persons Requiring Special Treatment. Maternity cases and internees
suffering from serious diseases, or whose condition requires special treatment, a surgicaloperation, or hospital care, must be admitted to any institution where adequate treatment can begiven and shall receive care not inferior to that provided for the general population. 238
10.14.3.2 Treatment by Medical Personnel of Their Own Nationality. Internees
shall, for preference, have the attention of medical personnel of their own nationality. 239
10.14.3.3 Certificate Recording Treatment. The medical authorities of the
Detaining Power shall, upon request, issue to every internee who has undergone treatment an
official certificate showing the nature of his or her illness or injury, and the duration and natureof the treatment given. 240 A duplicate of this certificate shall be forwarded to the Central
Information Agency for protected persons. 241
10.14.3.4 Cost of Medical Treatment. Treatment, including the provision of any
apparatus necessary for the maintenance of internees in good health, particularly dentures andother artificial appliances and spectacles, shall be free of charge to the internee. 242
10.14.4 Receipt of Medical Shipments. Internees may receive individual parcels and235

GC art. 92 (“Their purpose shall be, in particular, to supervise the general state of health, nutrition andcleanliness of internees, and to detect contagious diseases, especially tuberculosis, malaria, and venereal diseases.”).
236

GC art. 92 (“Such inspections shall include, in particular, the checking of weight of each internee and, at least
once a year, radioscopic examination.”).
237

Refer to § 10.27.1 (Applicability of the Laws in Force to Internees).

238

GC art. 91 (“Maternity cases and internees suffering from serious diseases, or whose condition requires special
treatment, a surgical operation or hospital care, must be admitted to any institution where adequate treatment can begiven and shall receive care not inferior to that provided for the general population.”).
239

GC art. 91 (“Internees shall, for preference, have the attention of medical personnel of their own nationality.”).

240

GC art. 91 (“The medical authorities of the Detaining Power shall, upon request, issue to every internee who has
undergone treatment an official certificate showing the nature of his illness or injury, and the duration and nature of
the treatment given.”).
241

GC art. 91 (“A duplicate of this certificate shall be forwarded to the Central Agency provided for in Article
140.”).
242
GC art. 91 (“Treatment, including the provision of any apparatus necessary for the maintenance of internees ingood health, particularly dentures and other artificial appliances and spectacles, shall be free of charge to theinternee.”).

700

collective shipments containing medical supplies. 243 However, medical supplies are generally to
be sent in collective shipments so that they may be properly administered by the camp doctors. 244
10.14.5 Inquiry in Certain Cases of Death or Serious Injury. In certain cases of death orserious injury of an internee, an official inquiry shall be conducted by the Detaining Power. 245
10.15 RELIGIOUS EXERCISE BY INTERNEESInternees shall enjoy complete latitude in the exercise of their religious duties, including
attendance at the services of their faith, on condition that they comply with the disciplinary
routine prescribed by the detaining authorities. 246
10.15.1 Premises for Religious Services for Internees. The Detaining Power shall placeat the disposal of interned persons, of whatever denomination, premises suitable for the holdingof their religious services. 247 The premises where services are held should be sufficiently
spacious and clean, and should provide effective shelter to those attending services, but need not
be set aside exclusively for religious services. 248
10.15.2 Interned Ministers of Religion. Ministers of religion who are interned shall beallowed to minister freely to the members of their community. 249 For this purpose, the Detaining
Power shall ensure their equitable allocation among the various places of internment in which
there are internees speaking the same language and belonging to the same religion. 250 Shouldsuch ministers be too few in number, the Detaining Power shall provide them with the necessary
facilities, including means of transport, for moving from one place to another, and they shall beauthorized to visit any internees who are hospitalized. 251

243

Refer to § 10.23.3 (Receipt of Individual and Collective Relief Shipments for Internees).

244

Refer to § 10.23.3.2 (Medical Supplies in Relief Shipments).

245

Refer to § 10.34.5 (Inquiries Into Death or Serious Injury of Internees in Certain Cases).

246

GC art. 93 (“Internees shall enjoy complete latitude in the exercise of their religious duties, including attendanceat the services of their faith, on condition that they comply with the disciplinary routine prescribed by the detaining
authorities.”).
247

GC art. 86 (“The Detaining Power shall place at the disposal of interned persons, of whatever denomination,
premises suitable for the holding of their religious services.”).
248

GC COMMENTARY 388 (“It does not seem essential that these premises should be set aside exclusively for
religious services. The parallel text in the Prisoners of War Convention (Article 34, paragraph 2) speaks of‘adequate’ premises. In both cases, it should be understood that the premises where services are held should be
sufficiently spacious and clean and so built as to give effective shelter to those attending the services.”).

249

GC art. 93 (“Ministers of religion who are interned shall be allowed to minister freely to the members of theircommunity.”).
250

GC art. 93 (“For this purpose, the Detaining Power shall ensure their equitable allocation amongst the various
places of internment in which there are internees speaking the same language and belonging to the same religion.”).
251
GC art. 93 (“Should such ministers be too few in number, the Detaining Power shall provide them with thenecessary facilities, including means of transport, for moving from one place to another, and they shall be authorized
to visit any internees who are in hospital.”).

701

10.15.2.1 Correspondence by Ministers of Religion. Ministers of religion shall be
at liberty to correspond on matters concerning their ministry with the religious authorities in the
country of detention and, as far as possible, with the international religious organizations of theirfaith. 252 Such correspondence shall not be considered as forming a part of the quota mentioned
in Article 107 of the GC. 253 It shall, however, be subject to the provisions of Article 112 of theGC. 254 In other words, such correspondence may be censored, but such censorship shall be done
as quickly as possible. 255
10.15.3 Appointment of Other Ministers or Qualified Laypersons. When internees do nothave at their disposal the assistance of ministers of their faith, or should these latter be too few innumber, the local religious authorities of the same faith may appoint, in agreement with the
Detaining Power, a minister of the internees’ faith or, if such a course is feasible from adenominational point of view, a minister of a similar religion or a qualified layperson. 256 The
latter shall enjoy the facilities granted to the ministry he or she has assumed. 257 Persons so
appointed shall comply with all regulations laid down by the Detaining Power in the interests of
discipline and security. 258
10.16 INTELLECTUAL, PHYSICAL, AND RECREATIONAL ACTIVITIESThe Detaining Power shall encourage intellectual, educational, and recreational pursuits,
and sports and games among internees, while leaving them free to take part in them or not. 259 It
shall take all practicable measures to ensure the exercise thereof, in particular by providing
suitable premises for such purposes. 260
10.16.1 Voluntariness of the Activities. The Detaining Power should seek to encourage
the internees in engaging in these activities, while leaving them free to take part or not. For
example, it would be prohibited to compel internees to listen to propaganda, such as by252

GC art. 93 (“Ministers of religion shall be at liberty to correspond on matters concerning their ministry with thereligious authorities in the country of detention and, as far as possible, with the international religious organizationsof their faith.”).

253
GC art. 93 (“Such correspondence shall not be considered as forming a part of the quota mentioned in Article
107.”). Refer to § 10.23.2.1 (Internee Correspondence Quota).
254

GC art. 93 (“It shall, however, be subject to the provisions of Article 112.”).

255

Refer to § 10.23.6 (Censorship and Security Review of Internee Correspondence and Shipments).

256

GC art. 93 (“When internees do not have at their disposal the assistance of ministers of their faith, or should theselatter be too few in number, the local religious authorities of the same faith may appoint, in agreement with the
Detaining Power, a minister of the internees’ faith or, if such a course is feasible from a denominational point ofview, a minister of similar religion or a qualified layman.”).
257

GC art. 93 (“The latter shall enjoy the facilities granted to the ministry he has assumed.”).

258

GC art. 93 (“Persons so appointed shall comply with all regulations laid down by the Detaining Power in theinterests of discipline and security.”).
259

GC art. 94 (“The Detaining Power shall encourage intellectual, educational and recreational pursuits, sports andgames amongst internees, whilst leaving them free to take part in them or not.”).
260

GC art. 94 (“It shall take all practicable measures to ensure the exercise thereof, in particular by providing
suitable premises.”).

702

punishing them or giving them harsher conditions of confinement if they do not participate. On
the other hand, censoring educational or intellectual materials for security reasons or to refrainfrom providing internees with anti-democratic political propaganda would be permissible. 261
10.16.2 Education. All possible facilities shall be granted to internees to continue theirstudies or to take up new subjects. 262 The education of children and young people shall beensured; they shall be allowed to attend schools either within the place of internment or
outside. 263
To advance educational opportunities for internees, the Detaining Power may seek ways
to encourage and assist them in teaching one another. 264
10.16.3 Opportunities for Physical Exercise, Sports, and Outdoor Games. Internees shallbe given opportunities for physical exercise, sports, and outdoor games. 265 For this purpose,
sufficient open spaces shall be set aside in all places of internment. 266 Special playgrounds shallbe reserved for children and young people. 267
10.16.4 Contributions by Sources Apart From the Detaining Power. Apart from the
Detaining Power, internees may receive assistance from a variety of sources that allow them toengage in intellectual, physical, and recreational activities.
For example, relief organizations, including the ICRC, may contribute to the ensuringthat internees have opportunities for intellectual, physical, and recreational activities. 268 In
addition, internees may receive shipments that are intended to allow them to engage in these
activities. 269 Lastly, the profits from the canteen may be used in this area. 270
10.17 INTERNEE LABOR
The rules described in this section govern the use of internee labor. Additional rules
apply to the use of the labor of protected persons depending on whether they are present in a

261

Compare § 9.16.1 (Voluntariness of the Activities).

262

GC art. 94 (“All possible facilities shall be granted to internees to continue their studies or to take up new
subjects.”).
263

GC art. 94 (“The education of children and young people shall be ensured; they shall be allowed to attend schools
either within the place of internment or outside.”).
264

Compare § 9.16.2 (Education).

265

GC art. 94 (“Internees shall be given opportunities for physical exercise, sports and outdoor games.”).

266

GC art. 94 (“For this purpose, sufficient open spaces shall be set aside in all places of internment.”).

267

GC art. 94 (“Special playgrounds shall be reserved for children and young people.”).

268

Refer to § 10.33.2 (Access by Relief Societies and Other Organizations).

269

Refer to § 10.23.3 (Receipt of Individual and Collective Relief Shipments for Internees).

270

Refer to § 10.12.3 (Canteen Management and Profits).

703

belligerent’s home territory or in occupied territory. 271
10.17.1 General Rules on Internee Labor. The Detaining Power shall not employ
internees as workers, unless the internees so desire. 272
Employment that, if undertaken under compulsion by a protected person not ininternment, would involve a breach of Articles 40 or 51 of the GC, and employment on work thatis of a degrading or humiliating character, are in any case prohibited. 273
After a working period of six weeks, internees shall be free to give up work at any
moment, subject to eight days’ notice. 274
10.17.2 Compulsory Work for the Benefit of the Internee Community. The first two
paragraphs of Article 95 of the GC constitute no obstacle to the right of the Detaining Power to
employ interned doctors, dentists, and other medical personnel in their professional capacity on
behalf of their fellow internees, or to employ internees for administrative and maintenance workin places of internment and to detail such persons for work in the kitchens or for other domestic
tasks, or to require such persons to undertake duties connected with the protection of internees
against aerial bombardment or other war risks. 275 Thus, although internees generally may not becompelled to work, there is an exception for tasks that benefit the internee community as awhole. 276
No internee may, however, be required to perform tasks for which he or she is, in theopinion of a medical officer, physically unsuited. 277

271

Refer to § 10.7.3 (Compulsory Work for Protected Persons in a Belligerent’s Home Territory); § 11.20 (Labor ofProtected Persons in Occupied Territory).
272

GC art. 95 (“The Detaining Power shall not employ internees as workers, unless they so desire.”).

273

GC art. 95 (“Employment which, if undertaken under compulsion by a protected person not in internment, would
involve a breach of Articles 40 or 51 of the present Convention, and employment on work which is of a degrading or
humiliating character are in any case prohibited.”).
274

GC art. 95 (“After a working period of six weeks, internees shall be free to give up work at any moment, subject
to eight days' notice.”).
275

GC art. 95 (“These provisions constitute no obstacle to the right of the Detaining Power to employ interned
doctors, dentists and other medical personnel in their professional capacity on behalf of their fellow internees, or toemploy internees for administrative and maintenance work in places of internment and to detail such persons forwork in the kitchens or for other domestic tasks, or to require such persons to undertake duties connected with theprotection of internees against aerial bombardment or other war risks.”).
276

GC COMMENTARY 416 (“The commentary on Article 91 showed that internees must for preference be treated by
medical personnel of their own nationality, and Article 88 refers to detained persons taking part in the protection of
their quarters. The fact is that nobody could work more zealously on this task than the internees themselves. Suchtasks represent work of human fellowship which they are bound to carry out on behalf of their companions. If they
sought to avoid it they would be failing in an elementary duty and it would be right to force them to do it. A similarline of argument led to the inclusion of administrative work and domestic tasks (work in the kitchen, cleaning andcamp maintenance) among the duties which internees may be forced to carry out.”).

277

GC art. 95 (“No internee may, however, be required to perform tasks for which he is, in the opinion of a medical
officer, physically unsuited.”).

704

In addition, members of the Internee Committee may not be compelled to do other work,
if the accomplishment of their duties is thereby rendered more difficult. 278
10.17.2.1 Wages and Working Conditions for Internees Permanently Detailed forWork on Behalf of the Internee Community. Internees permanently detailed for categories ofwork mentioned in the third paragraph of Article 95 of the GC shall be paid fair wages by the
Detaining Power. 279 The working conditions and the scale of compensation for occupational
accidents and diseases to internees thus detailed shall not be inferior to those applicable to workof the same nature in the same district. 280
10.17.3 Working Conditions. The Detaining Power shall take entire responsibility for all
working conditions, for medical attention, for the payment of wages, and for ensuring that all
employed internees receive compensation for occupational accidents and diseases. 281 The
standards prescribed for said working conditions and for compensation shall be in accordancewith national laws and regulations, and with existing practice; they shall in no case be inferior tothose obtaining for work of the same nature in the same district. 282
In addition, internees who work shall receive additional rations in proportion to the kindof labor that they perform. 283
10.17.4 Wage Agreement With Internees. Wages for work done shall be determined onan equitable basis by special agreements between the internees, the Detaining Power, and, if thecase arises, employers other than the Detaining Power, due regard being paid to the obligation of
the Detaining Power to provide for free maintenance of internees, and for the medical attention
that their state of health may require. 284
10.17.5 Labor Detachments of Internees. All labor detachments shall remain part of, anddependent upon, a place of internment. 285 The competent authorities of the Detaining Power and
278

Refer to § 10.22.3.1 (Limitations on Other Work Assignments).

279

GC art. 95 (“Internees permanently detailed for categories of work mentioned in the third paragraph of this
Article, shall be paid fair wages by the Detaining Power.”).
280

GC art. 95 (“The working conditions and the scale of compensation for occupational accidents and diseases tointernees thus detailed, shall not be inferior to those applicable to work of the same nature in the same district.”).
281

GC art. 95 (“The Detaining Power shall take entire responsibility for all working conditions, for medical
attention, for the payment of wages, and for ensuring that all employed internees receive compensation foroccupational accidents and diseases.”).
282

GC art. 95 (“The standards prescribed for the said working conditions and for compensation shall be inaccordance with the national laws and regulations, and with the existing practice; they shall in no case be inferior tothose obtaining for work of the same nature in the same district.”).
283

Refer to § 10.13.1.2 (Additional Food for Certain Groups).

284

GC art. 95 (“Wages for work done shall be determined on an equitable basis by special agreements between theinternees, the Detaining Power, and, if the case arises, employers other than the Detaining Power, due regard being
paid to the obligation of the Detaining Power to provide for free maintenance of internees and for the medical
attention which their state of health may require.”).
285

GC art. 96 (“All labour detachments shall remain part of and dependent upon a place of internment.”).

705

the commandant of a place of internment shall be responsible for the observance of theprovisions of the GC in a labor detachment. 286
The commandant shall keep an up-to-date list of the labor detachments subordinate tohim or her, and shall communicate it to the delegates of the Protecting Power, of the ICRC, andof other humanitarian organizations who may visit the places of internment. 287
10.18 INTERNEES’ ARTICLES OF PERSONAL USE
10.18.1 Internees’ Articles of Personal Use. Internees shall be permitted to retain articles
of personal use. 288
Internees, however, are not entitled to retain items that could be put to a use prejudicial to
the legitimate interests of the Detaining Power, such as items that may pose a risk to security(e.g., knives or devices that may be used as weapons) or items that may facilitate escape (e.g.,flares, flare pistols, compasses, maps, radios, or cell phones). 289
10.18.2 Articles of Personal or Sentimental Value. Articles that have “above all” apersonal or sentimental value may not be taken away. 290 Items that may otherwise belegitimately impounded (e.g., for security reasons) are not precluded from being impoundedbecause of their personal or sentimental value to the internee. 291
10.18.3 Family or Identity Documents for Internees. Family or identity documents in thepossession of internees may not be taken away without a receipt being given. 292 At no time shall286

GC art. 96 (“The competent authorities of the Detaining Power and the commandant of a place of internment
shall be responsible for the observance in a labour detachment of the provisions of the present Convention.”).
287

GC art. 96 (“The commandant shall keep an up-to-date list of the labour detachments subordinate to him andshall communicate it to the delegates of the Protecting Power, of the International Committee of the Red Cross andof other humanitarian organizations who may visit the places of internment.”).
288

GC art. 97 (“Internees shall be permitted to retain articles of personal use.”).

289

GC COMMENTARY 420 (“Cameras should no doubt be regarded as an exception [to the permitted articles of
personal use], because of the Detaining Power’s special interest in removing anything which might promoteespionage or perhaps be used for unfavourable propaganda. … The Detaining Power is free, however, to protect
itself against efforts to put the resources retained by the internees—and above all their financial resources—to a use
prejudicial to its interests.”).
290

GC art. 97 (“Articles which have above all a personal or sentimental value may not be taken away.”).

291

GC COMMENTARY 422 (“The essential part of the clause is the words ‘above all’. The clause formulates an
exception to the right of the Detaining Power to take articles of value from internees; that exception applies toarticles which have above all a personal or sentimental value. That means that the importance attached to theirpossession does not depend on their commercial value, but rather on what they represent in the sentimental sphere.
A wedding ring would be one such example --a plain golden ring which costs little; its sale would not furnish theowner with large resources with which to make preparations for an escape or to take part in subversive propaganda.
On the other hand jewels of great commercial value may be taken away, in spite of their sentimental value. It will
be for the Detaining Power to judge in all fairness the appropriate course to take. It must be in accordance with thestipulation of paragraph 1 (in accordance with established procedure and against a receipt).”).

292

GC art. 97 (“Family or identity documents in the possession of internees may not be taken away without a receipt
being given.”).

706

internees be left without identity documents. 293 If they have none, they shall be issued special
documents drawn up by the detaining authorities, which will serve as their identity papers until
the end of their internment. 294
10.19 FINANCIAL RESOURCES OF INTERNEES
10.19.1 Money and Valuables in the Internee’s Possession. Monies, checks, bonds, etc.,
and valuables in the possession of internees may not be taken from them, except in accordancewith established procedure. 295 Detailed receipts shall be given for such valuables. 296
The amounts shall be paid into the account of every internee, as provided for in Article
98 of the GC. 297 Such amounts may not be converted into any other currency unless legislation
in force in the territory in which the owner is interned so requires or the internee gives his or her
consent. 298
10.19.1.1 Pocket Money for Purchases. Internees may keep on their persons acertain amount of money, in cash or in the form of purchase coupons, to enable them to makepurchases. 299 For example, internees could use this money or scrip to purchase items at thecanteen. 300
For security reasons, the amount of money retained by internees generally will besmall. 301
10.19.2 Internee Allowances. All internees shall receive regular allowances, sufficient toenable them to purchase goods and articles, such as tobacco, toilet requisites, etc. 302 Such

293

GC art. 97 (“At no time shall internees be left without identity documents.”).

294

GC art. 97 (“If they have none, they shall be issued with special documents drawn up by the detaining authorities,
which will serve as their identity papers until the end of their internment.”).
295
GC art. 97 (“Monies, cheques, bonds, etc., and valuables in their possession may not be taken from them except
in accordance with established procedure.”).
296

GC art. 97 (“Detailed receipts shall be given therefor.”).

297

GC art. 97 (“The amounts shall be paid into the account of every internee as provided for in Article 98.”).

298

GC art. 97 (“Such amounts may not be converted into any other currency unless legislation in force in the
territory in which the owner is interned so requires or the internee gives his consent.”).
299

GC art. 97 (“Internees may keep on their persons a certain amount of money, in cash or in the shape of purchasecoupons, to enable them to make purchases.”).
300

Refer to § 10.12 (Canteens for Internees).

301

GC COMMENTARY 424 (“It follows that the amount of money in question will be fairly small. If the Detaining
Power considers that it must for security reasons limit very strictly the amount of cash held by the internees, it
should provide them with purchase coupons of sufficient value to enable them to make purchases in the canteens it
runs.”).
302

GC art. 98 (“All internees shall receive regular allowances, sufficient to enable them to purchase goods andarticles, such as tobacco, toilet requisites, etc.”).

707

allowances may take the form of credits or purchase coupons. 303
Furthermore, internees may receive allowances from the Power to which they owe
allegiance, the Protecting Powers, the organizations that may assist them, or their families, aswell as the income on their property in accordance with the law of the Detaining Power. 304
The amount of allowances granted by the Power to which an internee owes allegianceshall be the same for each category of internees (e.g., infirm, sick, pregnant women), but may not
be allocated by that Power or distributed by the Detaining Power on the basis of discrimination
between internees that is prohibited by Article 27 of the GC. 305
10.19.3 Internee Accounts. The Detaining Power shall open a regular account for every
internee, to which shall be credited:•allowances named in Article 98 of the GC;•

wages earned;•

remittances received; and•such sums taken from the internee as may be available under the legislation in force inthe territory in which he or she is interned. 306

10.19.3.1 Drawing Upon Accounts. Internees may draw from their accounts theamounts necessary for their personal expenses, within the limits fixed by the Detaining Power. 307
Internees shall be granted all facilities consistent with the legislation in force in suchterritory to make remittances to their families and to other dependents. 308
10.19.3.2 Account Statement. Internees shall at all times be afforded reasonable303

GC art. 98 (“Such allowances may take the form of credits or purchase coupons.”).

304

GC art. 98 (“Furthermore, internees may receive allowances from the Power to which they owe allegiance, theProtecting Powers, the organizations which may assist them, or their families, as well as the income on theirproperty in accordance with the law of the Detaining Power.”).
305

GC art. 98 (“The amount of allowances granted by the Power to which they owe allegiance shall be the same foreach category of internees (infirm, sick, pregnant women, etc.), but may not be allocated by that Power or
distributed by the Detaining Power on the basis of discriminations between internees which are prohibited by Article
27 of the present Convention.”).
306

GC art. 98 (“The Detaining Power shall open a regular account for every internee, to which shall be credited theallowances named in the present Article, the wages earned and the remittances received, together with such sums
taken from him as may be available under the legislation in force in the territory in which he is interned.”).
307

GC art. 98 (“They may draw from their accounts the amounts necessary for their personal expenses, within thelimits fixed by the Detaining Power.”).
308

GC art. 98 (“Internees shall be granted all facilities consistent with the legislation in force in such territory to
make remittances to their families and to other dependants.”).

708

facilities for consulting and obtaining copies of their accounts. 309 A statement of accounts shallbe furnished to the Protecting Power on request, and shall accompany the internee in case oftransfer. 310
10.19.3.3 Settlement of Account on Release or Repatriation. On release or
repatriation, internees shall be given all articles, monies, or other valuables taken from themduring internment and shall receive in currency the balance of any credit to their accounts kept inaccordance with Article 98 of the GC, with the exception of any articles or amounts withheld by
the Detaining Power by virtue of its legislation in force. 311 If the property of an internee is so
withheld, the owner shall receive a detailed receipt. 312
10.20 ADMINISTRATION OF PLACES OF INTERNMENT AND DISCIPLINE
10.20.1 Responsible Officer and Staff. Every place of internment shall be put under theauthority of a responsible officer, chosen from the regular military forces or the regular civil
administration of the Detaining Power. 313
The officer in charge of the place of internment must have in his or her possession a copyof the GC in the official language, or one of the official languages, of his or her country and shallbe responsible for its application. 314 The staff in control of internees shall be instructed in theprovisions of the GC and of the administrative measures adopted to ensure its application. 315
10.20.2 Posting of Convention and Camp Orders. The text of the GC and the texts ofspecial agreements concluded under the GC shall be posted inside the place of internment, in alanguage that the internees understand, or shall be in the possession of the Internee
Committee. 316

309

GC art. 98 (“They shall at all times be afforded reasonable facilities for consulting and obtaining copies of theiraccounts.”).
310

GC art. 98 (“A statement of accounts shall be furnished to the Protecting Power on request, and shall accompany
the internee in case of transfer.”).
311
GC art. 97 (“On release or repatriation, internees shall be given all articles, monies or other valuables taken fromthem during internment and shall receive in currency the balance of any credit to their accounts kept in accordancewith Article 98, with the exception of any articles or amounts withheld by the Detaining Power by virtue of its
legislation in force.”).
312

GC art. 97 (“If the property of an internee is so withheld, the owner shall receive a detailed receipt.”).

313

GC art. 99 (“Every place of internment shall be put under the authority of a responsible officer, chosen from theregular military forces or the regular civil administration of the Detaining Power.”).
314

GC art. 99 (“The officer in charge of the place of internment must have in his possession a copy of the present
Convention in the official language, or one of the official languages, of his country and shall be responsible for its
application.”).
315

GC art. 99 (“The staff in control of internees shall be instructed in the provisions of the present Convention andof the administrative measures adopted to ensure its application.”).
316
GC art. 99 (“The text of the present Convention and the texts of special agreements concluded under the said
Convention shall be posted inside the place of internment, in a language which the internees understand, or shall bein the possession of the Internee Committee.”).

709

Regulations, orders, notices, and publications of every kind shall be communicated to theinternees and posted inside the places of internment, in a language that the internees
understand. 317
Every order and command addressed to internees individually must likewise be given in alanguage that they understand. 318
10.20.3 Humane Disciplinary Regime. The disciplinary regime in places of internment
shall be consistent with humanitarian principles, and shall in no circumstances include
regulations imposing on internees any physical exertion dangerous to their health or involving
physical or moral victimization. 319
10.20.3.1 Prohibition Against Tattooing or Imprinting Signs or Markings on the
Body. Identification by tattooing or imprinting signs or markings on the body is prohibited. 320
10.20.3.2 Prohibition Against Prolonged Standing, Roll-Calls, Punishment Drill,
Military Drill and Manuevers, or the Reduction of Food Rations. In particular, prolonged
standing and roll-calls, punishment drill, military drill and maneuvers, or the reduction of foodrations are prohibited. 321
10.20.4 Use of Force to Maintain Order and to Prevent Escape. As with POWs, the useof weapons against protected persons, especially against those who are escaping or attempting toescape, shall constitute an extreme measure, which shall always be preceded by warnings
appropriate to the circumstances. 322 For example, internees should not be fired upon if they areapprehended within the camp limits while making preparations to escape, and there is no risk ofescape or harm to anyone.
It should be noted that, although the GC has no provision corresponding to Article 42 of
the GPW, the above principle is equally valid in the internee context.
10.20.4.1 Use of Non-Lethal Weapons (Including Riot Control Agents). Nonlethal weapons may be employed to control rioting protected persons or to prevent their escape.
In particular, the use of riot control agents to control rioting protected persons is not

317

GC art. 99 (“Regulations, orders, notices and publications of every kind shall be communicated to the internees
and posted inside the places of internment, in a language which they understand.”).
318

GC art. 99 (“Every order and command addressed to internees individually, must likewise be given in a language
which they understand.”).
319

GC art. 100 (“The disciplinary regime in places of internment shall be consistent with humanitarian principles,and shall in no circumstances include regulations imposing on internees any physical exertion dangerous to theirhealth or involving physical or moral victimization.”).
320

GC art. 100 (“Identification by tattooing or imprinting signs or markings on the body, is prohibited.”).

321

GC art. 100 (“In particular, prolonged standing and roll-calls, punishment drill, military drill and manoeuvres, or
the reduction of food rations, are prohibited.”).
322

Compare § 9.22.6 (Use of Force to Maintain Order and to Prevent Escape).

710

prohibited. 323
If the use of deadly force is warranted and authorized against protected persons, there is
no legal requirement to employ non-lethal weapons before resort to deadly force. 324
10.21 INTERNEE PETITIONS, COMPLAINTS, AND REPORTS ABOUT CONDITIONS OF INTERNMENT
10.21.1 Internee Right to Present Petitions and Complaints. Internees shall have the rightto present to the authorities in whose power they are, any petition with regard to the conditions ofinternment to which they are subjected. 325 The commandant of an internment facility may issue
regulations that establish procedures about how internees are to exercise this right to petition. 326
Internees shall also have the right to apply without restriction through the Internee
Committee or, if they consider it necessary, directly to the representatives of the Protecting
Power, in order to indicate to them any points on which they may have complaints to make withregard to the conditions of internment. 327
10.21.1.1 Making Requests and Complaints to the ICRC. Such complaints may
also be made to the delegates of the ICRC, who enjoy the same prerogatives of access tointernees as the representatives of the Protecting Power. 328 In the past, the ICRC has been able
to take appropriate measures besides merely forwarding the complaint to the Power on which the
POWs depend, including measures on a confidential basis that help to improve the situation ofinternees. 329
10.21.2 Communication of Petitions and Complaints. Such petitions and complaints
shall be transmitted forthwith and without alteration, and even if the latter are recognized to be
unfounded, they may not occasion any punishment. 330
10.21.2.1 Review and Censorship of Requests and Complaints by the Detaining
323

Refer to § 6.16.2 (Prohibition on Use of Riot Control Agents as a Method of Warfare).

324

Refer to § 6.5.10.5 (No Requirement to Use Non-Lethal Weapons Before Using Lethal Weapons Where Deadly
Force Is Warranted).
325

GC art. 101 (“Internees shall have the right to present to the authorities in whose power they are, any petition
with regard to the conditions of internment to which they are subjected.”).
326

GC COMMENTARY 434 (“The Convention does not state in detail the procedure for submitting petitions, but
obviously it must be compatible with the normal requirements of discipline and the administration of the place ofinternment and petitions must not be used for purposes other than those arising under the Convention. It will be forthe commandant of the place of internment to issue regulations concerning the exercise of this right, and particularly
to say whether petitions can be submitted orally or in writing and in what form.”).

327

GC art. 101 (“They shall also have the right to apply without restriction through the Internee Committee or, if
they consider it necessary, direct to the representatives of the Protecting Power, in order to indicate to them any
points on which they may have complaints to make with regard to the conditions of internment.”).
328

Refer to § 10.33.1.2 (ICRC Delegates Enjoying the Same Prerogatives of Access).

329

Compare § 9.23.1.1 (Making Requests and Complaints to the ICRC).

330

GC art. 101 (“Such petitions and complaints shall be transmitted forthwith and without alteration, and even if thelatter are recognized to be unfounded, they may not occasion any punishment.”).

711

Power. Although petitions and complaints shall be transmitted forthwith and without alteration,
the Detaining Power has the right to examine and censor petitions and complaints for security
reasons. 331 Communications for transmittal may be examined to determine whether they
legitimately contain petitions or complaints. 332 Security review and censorship must be
conducted in accordance with the general rules on censoring internee correspondence. 333
10.21.2.2 No Punishment for Making Complaints. Even if the petitions andcomplaints are recognized to be unfounded, they may not occasion any punishment. 334 In any
event, as in the case of POWs, it could be contrary to internees’ interests to abuse this right bymaking groundless complaints because complaints that are justified might not, as a result,receive the appropriate attention. 335
10.21.3 Periodic Reports by the Internee Committees. Periodic reports on the situation inplaces of internment and as to the needs of the internees may be sent by the Internee Committees
to the representatives of the Protecting Powers. 336 Internee Committees have discretion about
how and when to submit their reports. 337 The Detaining Power may subject these reports tosecurity review and censorship to ensure that these reports are not misused. 338
10.22 INTERNEE COMMITTEES
10.22.1 Election of Internee Committees. In every place of internment, the internees
shall freely elect, by secret ballot every six months, the members of a Committee empowered torepresent them before the Detaining and the Protecting Powers, the ICRC, and any other331

See 1956 FM 27-10 (Change No. 1 1976) ¶308b (“The Detaining Power has the right to examine and censor thecomplaints, petitions, and reports referred to above in the same manner as correspondence addressed to internees ordispatched by them. It may also examine such complaints and reports to the representatives of the Protecting Powerto verify that they are what they purport to be and to delete matter not constituting either a complaint or a report
within the meaning of the foregoing provision.”).
332

GC COMMENTARY 435-36 (“The transmission ‘forthwith’ of complaints and petitions and the absence ofpunishment even when they are not well founded is in conformity with the procedure established with regard to
prisoners of war during the two world wars. The Fourth Convention of 1949 has introduced a particularly importantidea by stating that the transmission shall take place ‘without alteration’. This wording was rejected by the authorsof the Third Geneva Convention in order to respect the Detaining Power’s right of censorship. The discussions at
the Diplomatic Conference concerning the Fourth Convention showed that there was a specific wish to avoid any
suggestion of censorship with regard to civilians. It was nevertheless said that some supervision by the Detaining
Power must be allowed ‘for security reasons’.”).
333

Refer to § 10.23.6 (Censorship and Security Review of Internee Correspondence and Shipments).

334

GC art. 101 (“Such petitions and complaints shall be transmitted forthwith and without alteration, and even if thelatter are recognized to be unfounded, they may not occasion any punishment.”).
335

Compare § 9.23.2.2 (No Punishment for Making Complaints).

336

GC art. 101 (“Periodic reports on the situation in places of internment and as to the needs of the internees, may besent by the Internee Committees to the representatives of the Protecting Powers.”).
337

GC COMMENTARY 436 (“Some of the Government Experts who met in 1947 had envisaged making it obligatory
to transmit periodically to the Protecting Power reports drafted on a model form. This opinion did not prevail in thesense that it was given mandatory form; the idea of periodical reports was retained, but the Convention leaves it to
the Internee Committees to submit their reports when and how they think fit.”).

338

Refer to § 10.23.6 (Censorship and Security Review of Internee Correspondence and Shipments).

712

organization that may assist them. 339 The members of the Committee shall be eligible for reelection. 340
10.22.1.1 Approval of Internee Committee Members by the Detaining Authorities.
Internees so elected shall enter upon their duties after their election has been approved by thedetaining authorities. 341 The reasons for any refusals or dismissals shall be communicated to theProtecting Powers concerned. 342
10.22.2 Duties of Internee Committees. Internee Committees shall further the physical,
spiritual, and intellectual well-being of the internees. 343 Internee Committees have duties similar
to the duties of POW Representatives. 344
The Internee Committee’s general duties imply that the Internee Committee will
undertake a variety of activities to ensure that internees receive proper treatment by the
Detaining Power and to advance their welfare, even activities that are not specified in the GC as
constituting their duties.
10.22.2.1 Internee Committees and Mutual Assistance Among the Internees. In
case the internees decide, in particular, to organize a system of mutual assistance among
themselves, this organization would be within the competence of the Internee Committees, inaddition to the special duties entrusted to them under other provisions of the GC. 345 This
provision of the GC is based on experience during World War II, when camp leaders allowed
POWs to assist one another. 346

339

GC art. 102 (“In every place of internment, the internees shall freely elect by secret ballot every six months, themembers of a Committee empowered to represent them before the Detaining and the Protecting Powers, theInternational Committee of the Red Cross and any other organization which may assist them.”).
340

GC art. 102 (“The members of the Committee shall be eligible for re-election.”).

341

GC art. 102 (“Internees so elected shall enter upon their duties after their election has been approved by thedetaining authorities.”).
342

GC art. 102 (“The reasons for any refusals or dismissals shall be communicated to the Protecting Powers
concerned.”).
343

GC art. 103 (“The Internee Committees shall further the physical, spiritual and intellectual well-being of theinternees.”).
344

GC COMMENTARY 441 (“This general clause could therefore be regarded as giving the Internee Committees theright to take any action likely to further the internees' well-being. In the same way as the camp leader in theprisoner-of-war camp enjoys considerable latitude in assisting his comrades and is allowed to correspond with relief
organizations, subscribe to newspapers, organize concerts and theatricals, initiate study courses, set up a legal advice
bureau, transmit legal documents and suggest the sending to hospital or repatriation of certain men, so the Internee
Committees have the general task of ensuring the application of the Convention on behalf of their fellowinternees.”). Compare § 9.24.3 (Duties of POW Representatives).
345

GC art. 103 (“In case the internees decide, in particular, to organize a system of mutual assistance amongst
themselves, this organization would be within the competence of the Committees in addition to the special duties
entrusted to them under other provisions of the present Convention.”).

346

GC COMMENTARY 441 (“The experience of two world wars has shown that the activities of the camp leaders
have made it possible for the poorest of prisoners of war to be helped by their own comrades. In some cases thecamp leader organized collections and his office became a real social welfare bureau. The second paragraph adapts713

10.22.2.2 Other Specific Duties. In addition to the general duties that the GC
imposes on the Internee Committees, the GC also imposes specific duties on the Internee
Committees in the following matters:•

managing the distribution of collective relief; 347•

assisting in the transport of the internees’ community property and luggage in cases oftransfers of internees; 348•

receiving parcels and remittances of money for internees undergoing disciplinary
punishment, and handing over to the infirmary any perishable goods; 349•

checking on the management of the canteen and its special fund; 350•transmitting complaints and petitions, and making periodic reports on the needs ofinternees; 351•

retaining a copy of the GC and any applicable special agreements under the GC, if a copy
is not publicly posted; 352•

monitoring decisions announced from any disciplinary proceeding against an internee; 353
and•receiving information about all judicial proceedings against internees whom they
represent, and of their result. 354

10.22.3 Prerogatives of Internee Committees. In order to accomplish their duties,
members of Internee Committtees are afforded certain prerogatives.
10.22.3.1 Limitations on Other Work Assignments. Members of Internee
Committees shall not be required to perform any other work, if the accomplishment of their

the results of this experience to the case of internees and in particular gives the Internee Committees the task oforganizing a mutual assistance scheme. In view of the variation in conditions and resources among the internees,such a scheme can be very useful, for among them there will certainly be heads of family who, in losing their normal
work, will have left their dear ones in serious difficulty.”).
347

Refer to § 10.23.3.4 (Collective Relief for Internees).

348

Refer to § 10.30.3.3 (Disposition of Community Property and Remaining Property).

349

Refer to § 10.28.6.4 (Reading, Writing, Correspondence, and Packages).

350

Refer to § 10.12.3 (Canteen Management and Profits).

351

Refer to § 10.21 (Internee Petitions, Complaints).

352

Refer to § 10.20.2 (Posting of Convention and Camp Orders).

353

Refer to § 9.27.3 (Rights of POWs in Disciplinary Proceedings).

354

Refer to § 10.29.1 (Information to Internee Committees).

714

duties is thereby rendered more difficult. 355 Because internees are generally exempted fromcompulsory work, this means that members of Internee Committees are generally exempted frommaintenance work. 356
10.22.3.2 Assistants for the Members of Internee Committtees. Members ofInternee Committees may appoint from among the internees such assistants as they may
require. 357
10.22.3.3 Material Facilities, Including Certain Freedom of Movement. All
material facilities shall be granted to members of Internee Committees, particularly a certain
freedom of movement necessary for the accomplishment of their duties (e.g., visits to labordetachments, receipt of supplies). 358 For example, members of Internee Committees may need to
go to stations or other arrival points where relief supplies are sent. 359
10.22.3.4 Facilities for Communication. All facilities shall likewise be accorded
to members of Internee Committees for communication by post and telegraph with the detaining
authorities, the Protecting Powers, the ICRC and their delegates, and the organizations that giveassistance to internees. 360 Internee Committee members in labor detachments shall enjoy similar
facilities for communication with their Internee Committee in the principal place ofinternment. 361 Such communications shall not be limited nor considered as forming a part of thequota mentioned in Article 107 of the GC. 362
355

GC art. 104 (“Members of Internee Committees shall not be required to perform any other work, if theaccomplishment of their duties is rendered more difficult thereby.”).
356

See GC COMMENTARY 442-43 (“The desire to make this Convention parallel to the Prisoners of War Convention
has led in this paragraph to a somewhat illogical result, which was pointed out during the discussions in Geneva. In
the case of prisoners of war who may be made to work under the provisions of the Convention, it is reasonable thatcamp leaders should be given exemption; but is a similar provision necessary in the case of civilians who arecovered by Article 95 stating that they may not be compelled to work? The reply was that Article 95 also contains aclause exempting maintenance work in the camp, which internees may be compelled to do, so that paragraph 1
would be justified as referring to this.”). Refer to § 10.17 (Internee Labor).
357

GC art. 104 (“Members of Internee Committees may appoint from amongst the internees such assistants as they
may require.”).
358

GC art. 104 (“All material facilities shall be granted to them, particularly a certain freedom of movement
necessary for the accomplishment of their duties (visits to labour detachments, receipt of supplies, etc.).”).
359

GC COMMENTARY 443 (“It should be noted, with regard to the ‘freedom of movement’ which is mentioned, thatthe text says ‘a certain freedom’, not ‘complete freedom’. Article 3 of the Draft Rules concerning Collective Relief
annexed to the Convention in a way provides a commentary on this provision by stating that members of Internee
Committees shall be permitted to go to stations or other arrival points near their place of internment where the relief
supplies are sent.”).

360

GC art. 104 (“All facilities shall likewise be accorded to members of Internee Committees for communication by
post and telegraph with the detaining authorities, the Protecting Powers, the International Committee of the Red
Cross and their delegates, and with the organizations which give assistance to internees.”).
361

GC art. 104 (“Committee members in labour detachments shall enjoy similar facilities for communication with
their Internee Committee in the principal place of internment.”).
362

GC art. 104 (“Such communications shall not be limited, nor considered as forming a part of the quota mentioned
in Article 107.”). Refer to § 10.23.2 (Internees’ Correspondence Rights and Quota).

715

Censorship of communications with the Protecting Powers, ICRC, etc., is not prohibited,
but the Detaining Power should ensure that delays do not occur to the disadvantage of theinternees. 363
10.22.3.5 Turnover for Successor Members of the Internee Committee Upon
Transfer. Members of Internee Committees who are transferred shall be allowed a reasonable
time to acquaint their successors with current affairs. 364
10.23 INTERNEE CORRESPONDENCE AND RELIEF SHIPMENTS
Internees may send and receive mail and relief shipments, subject to security
requirements. In addition, internees benefit from certain postage exemptions.
10.23.1 Internment, Health, or Transfer Card. As soon as he or she is interned, or at thelatest not more than one week after his or her arrival in a place of internment, and likewise incases of sickness or transfer to another place of internment or to a hospital, every internee shallbe enabled to send direct to his or her family, on the one hand, and to the Central Information
Agency for protected persons, on the other, an internment card that is similar, if possible, to themodel annexed to the GC (GC Annex III.I), informing his or her relatives of his or her detention,
address, and state of health. 365
These cards shall be forwarded as rapidly as possible and may not be delayed in any
way.

366

10.23.2 Internees’ Correspondence Rights and Quota. Internees shall be allowed to send
and receive letters and cards. 367
10.23.2.1 Internee Correspondence Quota. If the Detaining Power deems it
necessary to limit the number of letters and cards sent by each internee, this number shall not be
fewer than two letters and four cards monthly; these letters and cards shall be drawn up so as toconform as closely as possible to the models annexed to the GC (GC Annexes III.II & III.III). 368
363

GC COMMENTARY 444 (“It is not stated that these communications are free from censorship. However, thegranting of all facilities lays an obligation on the Detaining Power, if it subjects this correspondence to censorship,
to ensure that delays do not occur to the disadvantage of the internees.”).

364

GC art. 104 (“Members of Internee Committees who are transferred shall be allowed a reasonable time toacquaint their successors with current affairs.”).
365

GC art. 106 (“As soon as he is interned, or at the latest not more than one week after his arrival in a place ofinternment, and likewise in cases of sickness or transfer to another place of internment or to a hospital, every
internee shall be enabled to send direct to his family, on the one hand, and to the Central Agency provided for by
Article 140, on the other, an internment card similar, if possible, to the model annexed to the present Convention,
informing his relatives of his detention, address and state of health.”).
366

GC art. 106 (“The said cards shall be forwarded as rapidly as possible and may not be delayed in any way.”).

367

GC art. 107 (“Internees shall be allowed to send and receive letters and cards.”).

368

GC art. 107 (“If the Detaining Power deems it necessary to limit the number of letters and cards sent by eachinternee, the said number shall not be less than two letters and four cards monthly; these shall be drawn up so as toconform as closely as possible to the models annexed to the present Convention.”).

716

If limitations must be placed on the correspondence addressed to internees, they may beordered only by the Power to which such internees owe allegiance, possibly at the request of the
Detaining Power. 369 If the Detaining Power can censor and transport more than the minimum
stated, in a reasonable time-frame, it should permit more correspondence. 370
10.23.2.2 No Delay in Correspondence for Disciplinary Reasons. Such lettersand cards must be conveyed with reasonable dispatch; they may not be delayed or retained fordisciplinary reasons. 371
10.23.2.3 More Rapid Means of Correspondence in Appropriate Cases. Internees
who have been a long time without news, or who find it impossible to receive news from theirrelatives, or to give them news by the ordinary postal route, as well as those who are at aconsiderable distance from their homes, shall be allowed to send telegrams, the charges being
paid by them in the currency at their disposal. 372 Internees shall likewise benefit from thisprovision in cases that are recognized to be urgent. 373
More modern means of communication, such as email, may be considered for internee
correspondence, as appropriate. 374
10.23.2.4 Language of Internee Correspondence. As a rule, internees’ mail shallbe written in their own language. 375 The parties to the conflict may authorize correspondence inother languages. 376
10.23.3 Receipt of Individual and Collective Relief Shipments for Internees. Internees
shall be allowed to receive, by post or by any other means, individual parcels or collective
shipments containing in particular foodstuffs, clothing, medical supplies, as well as books and369

GC art. 107 (“If limitations must be placed on the correspondence addressed to internees, they may be ordered
only by the Power to which such internees owe allegiance, possibly at the request of the Detaining Power.”).
370

See GC COMMENTARY 449 (“The minimum of two letters and four cards per month laid down by the Convention
seems to be best suited to the possibilities of rapid censorship. This is the minimum which, after representations by
the International Committee of the Red Cross, most of the belligerents had accepted from December 1940 onwards.
It remained the same until the end of hostilities. The results of this experience are embodied in the Convention, but
it goes without saying that these figures represent only a minimum and that if it can be done without overtaxing thenormal capacity of the postal service they can be exceeded.”).
371

GC art. 107 (“Such letters and cards must be conveyed with reasonable despatch; they may not be delayed orretained for disciplinary reasons.”).
372

GC art. 107 (“Internees who have been a long time without news, or who find it impossible to receive news fromtheir relatives, or to give them news by the ordinary postal route, as well as those who are at a considerable distancefrom their homes, shall be allowed to send telegrams, the charges being paid by them in the currency at theirdisposal.”).

373

GC art. 107 (“They shall likewise benefit by this provision in cases which are recognized to be urgent.”).

374

Refer to § 8.10.3 (Communication With Family).

375

GC art. 107 (“As a rule, internees’ mail shall be written in their own language.”).

376

GC art. 107 (“The Parties to the conflict may authorize correspondence in other languages.”).

717

objects of a devotional, educational, or recreational character that may meet their needs. 377 Such
shipments shall in no way free the Detaining Power from the obligations imposed upon it byvirtue of the GC. 378
Should military necessity require the quantity of such shipments to be limited, due notice
thereof shall be given to the Protecting Power and to the ICRC, or to any other organization
giving assistance to the internees and responsible for the forwarding of such shipments. 379 Sucha case of military necessity may be, for example, when military operations could be hinderedthrough the blocking of means of communication by large consignments of relief supplies. 380
10.23.3.1 Separation of Books From Other Relief Supplies. Parcels of clothing
and foodstuffs may not include books. 381 Books should be separated because the time requiredfor censorship of books would likely delay the distribution of other relief supplies. 382
10.23.3.2 Medical Supplies in Relief Shipments. Medical relief supplies shall, as arule, be sent in collective parcels. 383 This rule is meant to ensure that medical supplies can beadministered by the camp doctors and not by the internees themselves without medical advice. 384
However, this rule would not prohibit, in exceptional cases, for example, special medication
being sent from family members to an internee. 385
10.23.3.3 Special Agreements Concerning Relief Shipments. The conditions for377

GC art. 108 (“Internees shall be allowed to receive, by post or by any other means, individual parcels orcollective shipments containing in particular foodstuffs, clothing, medical supplies, as well as books and objects of a
devotional, educational or recreational character which may meet their needs.”).
378

GC art. 108 (“Such shipments shall in no way free the Detaining Power from the obligations imposed upon it byvirtue of the present Convention.”).
379

GC art. 108 (“Should military necessity require the quantity of such shipments to be limited, due notice thereof
shall be given to the Protecting Power and to the International Committee of the Red Cross, or to any otherorganization giving assistance to the internees and responsible for the forwarding of such shipments.”).
380

GC COMMENTARY 454-55 (“The Detaining Power may only limit the quantity of shipments for reasons ofmilitary necessity. This should be understood to mean cases where operations may be hindered through theblocking of means of communication by large consignments of relief supplies. In that case, the Protecting Powerand the relief societies must be notified; the societies must indeed be able to regulate the frequency of consignments
themselves and thus avoid perishable goods being held up. In the case of the Protecting Power, the notification is toenable it to discuss whether the restrictive measures are justified; as the military operations develop, the measures inany case must only be temporary and can be justified only by exceptional strain on transport or communications.”).
381

GC art. 108 (“Parcels of clothing and foodstuffs may not include books.”).

382

See GC COMMENTARY 455 (“Parcels of clothing and foodstuff must not contain books, so that they will not bedelayed for censorship, … .”).
383

GC art. 108 (“Medical relief supplies shall, as a rule, be sent in collective parcels.”).

384

GC COMMENTARY 455 (“[M]edical supplies, as a rule, will only be sent in collective parcels. It would, indeed,
be dangerous to let the internees themselves decide what medicaments to use. For preference they should only be
used on medical advice.”).
385
GC COMMENTARY 455 footnote 2 (“‘As a rule’ was inserted [into the GC] because it was not wished to prohibit,
as an exceptional case, the inclusion in a family parcel of a medicament required because of the state of health of therecipient and which might not be included in collective medical relief.”).

718

the sending of individual parcels and collective shipments shall, if necessary, be the subject ofspecial agreements between the Powers concerned, which may in no case delay the receipt by theinternees of relief supplies. 386
10.23.3.4 Collective Relief for Internees. In the absence of special agreements
between parties to the conflict regarding the conditions for the receipt and distribution ofcollective relief shipments, the regulations concerning collective relief that are annexed to the
GC (GC Annex II) shall be applied. 387
The special agreements provided for above shall in no case restrict the right of Internee
Committees to take possession of collective relief shipments intended for internees, to undertake
their distribution, and to dispose of them in the interests of the recipients. 388
Nor shall such agreements restrict the right of representatives of the Protecting Powers,
the ICRC, or any other organization giving assistance to internees and responsible for theforwarding of collective shipments, to supervise their distribution to the recipients. 389
10.23.4 Exemption From Postal and Shipping Charges for Shipments To and From
Internees. Relief shipments for internees and mail sent by internees or to them benefit fromcertain exemptions in international law.
10.23.4.1 Exemption From Dues for Relief Shipments. All relief shipments forinternees shall be exempt from import, customs, and other dues. 390
10.23.4.2 GC Postal Dues Exemption. Under the GC, all matter sent by mail,including relief parcels sent by parcel post and remittances of money, addressed from othercountries to internees or sent by them through the post office, either directly or through the
National Protected Person Information Bureau and the Central Information Agency for protected
persons, shall be exempt from all postal dues both in the countries of origin and destination, andin intermediate countries. 391

386

GC art. 108 (“The conditions for the sending of individual parcels and collective shipments shall, if necessary, bethe subject of special agreements between the Powers concerned, which may in no case delay the receipt by theinternees of relief supplies.”).

387

GC art. 109 (“In the absence of special agreements between Parties to the conflict regarding the conditions for thereceipt and distribution of collective relief shipments, the regulations concerning collective relief which are annexedto the present Convention shall be applied.”).
388

GC art. 109 (“The special agreements provided for above shall in no case restrict the right of Internee
Committees to take possession of collective relief shipments intended for internees, to undertake their distribution
and to dispose of them in the interests of the recipients.”).
389

GC art. 109 (“Nor shall such agreements restrict the right of representatives of the Protecting Powers, theInternational Committee of the Red Cross, or any other organization giving assistance to internees and responsible
for the forwarding of collective shipments, to supervise their distribution to the recipients.”).
390

GC art. 110 (“All relief shipments for internees shall be exempt from import, customs and other dues.”).

391

GC art. 110 (“All matter sent by mail, including relief parcels sent by parcel post and remittances of money,
addressed from other countries to internees or despatched by them through the post office, either direct or throughthe Information Bureaux provided for in Article 136 and the Central Information Agency provided for in Article719

To this end, in particular, the exemption provided by the Universal Postal Convention of1947 and by the agreements of the Universal Postal Union in favor of civilians of enemy
nationality detained in camps or civilian prisons, shall be extended to the other interned persons
protected by the GC. 392 The countries not signatory to the above-mentioned agreements shall bebound to grant freedom from charges in the same circumstances. 393
10.23.4.3 Exemption From Postal Charges Under the Universal Postal
Convention. Under the Universal Postal Convention, with the exception of air surcharges for
airmail, letter-post items, postal parcels, and monetary articles originating in other countries andaddressed to, or sent by internees, either directly or through the National Protected Person
Information Bureau and the Central Information Agency for protected persons, shall be exempt
from all postal charges. 394
Parcels shall be admitted free of postage up to a weight of 5 kg. 395 The weight limit shallbe increased to 10 kg in the case of parcels the contents of which cannot be split up and ofparcels addressed to a camp or the Internee Committee there for distribution to the internees. 396
Items exempt from postal charges and internee parcels shall bear “Service des internés

140, shall be exempt from all postal dues both in the countries of origin and destination and in intermediate
countries.”).
392

GC art. 110 (“To this end, in particular, the exemption provided by the Universal Postal Convention of 1947 andby the agreements of the Universal Postal Union in favour of civilians of enemy nationality detained in camps orcivilian prisons, shall be extended to the other interned persons protected by the present Convention.”).
393

GC art. 110 (“The countries not signatory to the above-mentioned agreements shall be bound to grant freedom
from charges in the same circumstances.”).
394

See Universal Postal Convention, art. 17(2), Dec. 14, 1989, 1687 UNTS 241, 252 (“Paragraph 1 [of Article 17]
shall apply to letter-post items, postal parcels and monetary articles originating in other countries and addressed toor sent by civilian internees as defined by the Geneva Convention of 12 August 1949 relative to the protection ofcivilian persons in time of war, either direct or through the Information Bureaux and the Central Information
Agency prescribed in articles 136 and 140 respectively of that Convention.”). Consider Universal Postal
Convention, art. 7(2.2), Oct. 11, 2012, reprinted in INTERNATIONAL BUREAU OF THE UNIVERSAL POSTAL UNION,LETTER POST MANUAL, page C.8 (Berne 2013, Update 2 – Jan. 2015) (“The provisions set out under 2.1 shall also
apply to letter-post items, postal parcels and postal payment services items originating in other countries andaddressed to or sent by civilian internees as defined by the Geneva Convention of 12 August 1949 relative to theprotection of civilian persons in time of war, either direct or through the offices mentioned in the Regulations of theConvention and of the Postal Payment Services Agreement.”).
395

Universal Postal Convention, art. 17(4), Dec. 14, 1989, 1687 UNTS 241, 252 (“Parcels shall be admitted free of
postage up to a weight of 5 kg.”). Consider Universal Postal Convention, art. 7(2.4), Oct. 11, 2012, reprinted in
INTERNATIONAL BUREAU OF THE UNIVERSAL POSTAL UNION, LETTER POST MANUAL, page C.8 (Berne 2013, Update
2 – Jan. 2015) (“Parcels shall be admitted free of postage up to a weight of 5 kilogrammes.”).
396

Universal Postal Convention, art. 17(4), Dec. 14, 1989, 1687 UNTS 241, 252 (“The weight limit shall be
increased to 10 kg in the case of parcels the contents of which cannot be split up and of parcels addressed to a campor the prisoners’ representatives there (‘hommes de confiance’) for distribution to the prisoners.”). Consider
Universal Postal Convention, art. 7(2.4), Oct. 11, 2012, reprinted in INTERNATIONAL BUREAU OF THE UNIVERSALPOSTAL UNION, LETTER POST MANUAL, page C.8 (Berne 2013, Update 2 – Jan. 2015) (“The weight limit shall be
increased to 10 kilogrammes in the case of parcels the contents of which cannot be split up and of parcels addressed
to a camp or the prisoners’ representatives there (“hommes de confiance”) for distribution to the prisoners.”).

720

civils” (Civilian internees service) and a translation in another language if appropriate. 397
Postal administrations shall not be liable for the loss of, theft from, or damage to parcels
in the case of internee parcels. 398
10.23.4.4 Costs of Transporting Relief Shipments Outside the Post Office. The
cost of transporting relief shipments that are intended for internees and that, by reason of theirweight or any other cause, cannot be sent through the post office, shall be borne by the Detaining
Power in all the territories under its control. 399 Other Powers that are Parties to the GC shall bear
the cost of transport in their respective territories. 400
Costs connected with the transport of such shipments that are not covered by the above
paragraphs shall be charged to the senders. 401
10.23.4.5 Charges for Telegrams. The Parties to the GC shall endeavor to reduce,
so far as possible, the charges for telegrams sent by internees, or addressed to them. 402
10.23.5 Special Means of Transport of Shipments to Internees. Should military
operations prevent the Powers concerned from fulfilling their obligation to ensure theconveyance of the mail and relief shipments provided for in Articles 106, 107, 108, and 113 of
the GC, the Protecting Powers concerned, the ICRC, or any other organization duly approved by
the parties to the conflict, may undertake the conveyance of such shipments by suitable means(e.g., rail, motor vehicles, vessels, or aircraft). 403 For this purpose, the Parties to the GC shall
397

Consider Letter Post Regulations, Article RL 112 to Article 7 of the Universal Postal Convention of Oct. 11,
2012, reprinted in INTERNATIONAL BUREAU OF THE UNIVERSAL POSTAL UNION, LETTER POST MANUAL, page C.11
(2015) (“Items exempt from postal charges shall bear, on the address side in the top right-hand corner, the following
indications, which may be followed by a translation: ‘Service des prisonniers de guerre’ (Prisoners-of-war service)or ‘Service des internés civils’ (Civilian internees service) for the items mentioned in article 7.2 of the Convention
and article RL 111 and the forms relating to them;”); Parcel Post Regulations, Article RC 112(2) to Article 8 of the
Universal Postal Convention of Oct. 11, 2012, reprinted in INTERNATIONAL BUREAU OF THE UNIVERSAL POSTALUNION, PARCEL POST MANUAL, page D.10 (2015) (“Every prisoner-of-war and civilian internee parcel and its
dispatch note shall bear, the former beside the address, one of the indications ‘Service des prisonniers de guerre’(Prisoner-of-war Service) or ‘Service des internés civils’ (Civilian Internees Service); these indications may befollowed by a translation in another language.”).
398

Postal Parcels Agreement, art. 41(2)(f), Dec. 14, 1989, 1687 UNTS 346, 369 (“Postal administrations shall not beliable for the loss of, theft from or damage to parcels in the case of prisoner-of-war or civilian internee parcels.”).
399

GC art. 110 (“The cost of transporting relief shipments which are intended for internees and which, by reason of
their weight or any other cause, cannot be sent through the post office, shall be borne by the Detaining Power in all
the territories under its control.”).
400

GC art. 110 (“Other Powers which are Parties to the present Convention shall bear the cost of transport in theirrespective territories.”).
401

GC art. 110 (“Costs connected with the transport of such shipments, which are not covered by the above
paragraphs, shall be charged to the senders.”).
402

GC art. 110 (“The High Contracting Parties shall endeavour to reduce, so far as possible, the charges fortelegrams sent by internees, or addressed to them.”).
403

GC art. 111 (“Should military operations prevent the Powers concerned from fulfilling their obligation to ensure
the conveyance of the mail and relief shipments provided for in Articles 106, 107, 108 and 113, the Protecting
Powers concerned, the International Committee of the Red Cross or any other organization duly approved by the721

endeavor to supply them with such transport, and to allow its circulation, especially by granting
the necessary safe-conducts. 404
Such transport may also be used to convey:•

correspondence, lists, and reports exchanged between the Central Information Agency forprotected persons and the National Protected Person Information Bureau; and•correspondence and reports relating to internees that the Protecting Powers, the ICRC, or
any other organization assisting the internees exchange either with their own delegates orwith the parties to the conflict. 405

These provisions in no way detract from the right of any party to the conflict to arrange
other means of transport if it should so prefer, nor preclude the granting of safe-conducts, under
mutually agreed conditions, to such means of transport. 406
The costs occasioned by the use of such means of transport shall be borne, in proportion
to the importance of the shipments, by the parties to the conflict whose nationals are benefited
thereby. 407 Expenses in setting up the special transport system are not specifically addressed by
the GC, and presumably would be addressed by an agreement between the body that takes theinitiative in establishing the system and the Powers concerned. 408
10.23.6 Censorship and Security Review of Internee Correspondence and Shipments.
The Detaining Power may examine and censor all communications sent to or by internees,
including correspondence, telegrams, parcels, newspapers, periodicals, and books, with a view toParties to the conflict may undertake the conveyance of such shipments by suitable means (rail, motor vehicles,
vessels or aircraft, etc.).”).
404

GC art. 111 (“For this purpose, the High Contracting Parties shall endeavour to supply them with such transport,
and to allow its circulation, especially by granting the necessary safe-conducts.”).
405
GC art. 111 (“Such transport may also be used to convey: (a) correspondence, lists and reports exchanged
between the Central Information Agency referred to in Article 140 and the National Bureaux referred to in Article
136; (b) correspondence and reports relating to internees which the Protecting Powers, the International Committeeof the Red Cross or any other organization assisting the internees exchange either with their own delegates or with
the Parties to the conflict.”).
406

GC art. 111 (“These provisions in no way detract from the right of any Party to the conflict to arrange othermeans of transport if it should so prefer, nor preclude the granting of safe-conducts, under mutually agreed
conditions, to such means of transport.”).
407

GC art. 111 (“The costs occasioned by the use of such means of transport shall be borne, in proportion to theimportance of the shipments, by the Parties to the conflict whose nationals are benefited thereby.”).
408

See GC COMMENTARY 468 (“This paragraph deals with the expenditure involved in the use of special transport
but not the expenditure incurred in setting up the special transport system. On this latter point, the Convention says
nothing that is not contained in paragraph 1 of this Article-i.e., that the Contracting Powers will make every effort toprocure the means of transport. It is therefore to be supposed that these expenses will be covered by agreement
between the body which takes the initiative in the matter and the Power concerned.”).

722

deleting or confiscating matter prejudicial to its military security. 409 The Detaining Power’s
general right to conduct censorship is an implicit assumption in the GC. 410 Internees’
complaints, petitions, and reports may be subject to security review and censorship to ensure thatthey are not misused. 411
The censoring of correspondence addressed to internees or sent by them shall be done asquickly as possible. 412
10.23.6.1 Examination of Consignments. The examination of consignments
intended for internees shall not be carried out under conditions that will expose the goods inthem to deterioration. 413 It shall be done in the presence of the addressee, or of a fellow-internee
duly delegated by him or her. 414 This measure is intended to prevent any misappropriation; thefellow-internee would generally be a member of the Internee Committee. 415
The delivery to internees of individual or collective consignments shall not be delayed
under the pretext of difficulties of censorship. 416
10.23.6.2 Limitation on Prohibition of Correspondence. Any prohibition of409

1956 FM 27-10 (Change No. 1 1976) ¶319b (“The Detaining Power may examine and censor all communications
sent to or by internees, including correspondence and telegrams (GC, art. 107; par. 314 herein) and relief shipments(GC, art, 108; par. 315 herein) with a view to deleting matter prejudicial to its military security.”).
410

II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 839-40 (“It was suggested by one
Delegation that it would be desirable specifically to reserve the right of censorship in this Article, particularly inview of the insertion at Stockholm of the words ‘and without alteration’. The view of the Committee generally wasthat to state a reservation on one Article might make it necessary to state a reserve on several others, since the first
insertion would have created doubt as to the general right of censorship which otherwise is implicit in theConvention. It was generally accepted that a duty to transmit requests and complaints necessarily implied a right toread the documents in question to see whether they were in fact requests and complaints. Moreover, since there wasno obligation to transmit without alteration a matter which was not a complaint and not a request, there could be nobreach of the Convention if such matter were deleted from communications to representatives, for example, of theProtecting Power.”).
411

Refer to § 10.21.2.1 (Review and Censorship of Requests and Complaints by the Detaining Power); § 10.21.3(Periodic Reports by the Internee Committees).
412

GC art. 112 (“The censoring of correspondence addressed to internees or despatched by them shall be done asquickly as possible.”).
413

GC art. 112 (“The examination of consignments intended for internees shall not be carried out under conditions
that will expose the goods contained in them to deterioration.”).
414

GC art. 112 (“It shall be done in the presence of the addressee, or of a fellow-internee duly delegated by him.”).

415

GC COMMENTARY 470 (“Parcels which cannot be examined by the Detaining Power in the presence of theinternee, would be examined in the presence of a fellow-internee duly delegated by him. This measure is intended
to prevent any misappropriation. In general, the fellow-internee duly delegated by the addressee will be the memberof the Internee Committee entrusted with the task of receiving and distributing relief supplies in accordance with
Article 109. A reference to the competence of the Internee Committee was, however, avoided in the Convention,
because it was wished to leave the person concerned the opportunity of appointing someone as his delegate who was
not a member of the Internee Committee, to cover cases where he did not have complete confidence in any of its
members.”).
416

GC art. 112 (“The delivery to internees of individual or collective consignments shall not be delayed under thepretext of difficulties of censorship.”).

723

correspondence ordered by the parties to the conflict for either military or political reasons shallbe only temporary, and its duration shall be as short as possible. 417
10.24 PRIVATE LEGAL MATTERS OF INTERNEES
10.24.1 Civil Capacity. Internees shall retain their full civil capacity and shall exercise
such attendant rights as may be compatible with their status. 418 Their civil capacity continues tobe governed by the laws that applied to them before they were interned (e.g., the domestic lawsof their home country or the laws governing the place where they were detained). 419
10.24.2 Legal Documents and Assistance. The Detaining Power shall provide allreasonable facilities for the transmission, through the Protecting Power or the Central
Information Agency for protected persons, or as otherwise required, of wills, powers of attorney,
letters of authority, or any other documents intended for internees or sent by them. 420 In allcases, the Detaining Power shall facilitate the execution and authentication in due legal form ofsuch documents on behalf of internees, in particular by allowing them to consult a lawyer. 421
10.24.2.1 Safekeeping of Wills. In particular, the wills of internees shall bereceived for safe-keeping by the responsible authorities, e.g., the commandant of the place ofinternment or, on the responsibility of the commandant, a public notary. 422 Upon the internee’s
death, the will shall be sent to a person whom the internee had designated. 423
10.24.3 Management of Internee Property. Because internment is not punishment,
enabling internees to manage their property is of major importance. 424
417

GC art. 112 (“Any prohibition of correspondence ordered by the Parties to the conflict either for military or
political reasons, shall be only temporary and its duration shall be as short as possible.”).
418

GC art. 80 (“Internees shall retain their full civil capacity and shall exercise such attendant rights as may becompatible with their status.”).
419

GC COMMENTARY 375 (“It must be realized, in fact, that the civil capacity of internees continues to be governedby the laws which applied to them before they were interned. That means that circumstances which modify it orcancel it in normal times (divorce, lunacy, etc.) continue to produce the same effects.”).

420

GC art. 113 (“The Detaining Powers shall provide all reasonable facilities for the transmission, through theProtecting Power or the Central Agency provided for in Article 140, or as otherwise required, of wills, powers of
attorney, letters of authority, or any other documents intended for internees or despatched by them.”).
421

GC art. 113 (“In all cases the Detaining Powers shall facilitate the execution and authentication in due legal formof such documents on behalf of internees, in particular by allowing them to consult a lawyer.”).
422

See GC art. 129 (“The wills of internees shall be received for safe-keeping by the responsible authorities;”); GC
COMMENTARY 504 (“It was seen in Article 113 that in every case the Detaining Power would facilitate the execution
and the authentication in due legal form of wills. These documents will be handed to the responsible authorities i.e.
to the commandant of the place of internment or, on the responsibility of the commandant, to a public notary who
will ensure their safe-keeping.”).
423

Refer to § 10.34.1 (Transmittal of Wills).

424

GC COMMENTARY 473 (“Internment, it must be insisted, is not a punishment. It would therefore be unjust if,
through the restrictions on freedom which it imposes, it involved disastrous consequences for the internee himself
and the members of his family. In this respect, the granting of permission to internees to manage their property is ofmajor importance.”).

724

The Detaining Power shall afford internees all facilities to enable internees to manage
their property, provided such facilities are not incompatible with the conditions of internment
and the law that is applicable. 425 The law that is applicable may include the Detaining Power’s
war regulations relating to enemy property. 426
For the purpose of enabling internees to manage their property, the Detaining Power may
give internees permission to leave the place of internment in urgent cases and if circumstances
allow. 427 In general, however, the internee would act only by delegating his or her powers. 428
10.24.4 Court Cases in Which Internees Are Parties. In all cases in which an internee is aparty to proceedings in any court, the Detaining Power shall, if the internee so requests, cause thecourt to be informed of the internee’s detention and shall, within legal limits, ensure that allnecessary steps are taken to prevent the internee from being in any way prejudiced, by reason of
his or her internment, as regards the preparation and conduct of his or her case, or as regards theexecution of any judgment of the court. 429
10.25 INTERNEES AND VISITS OF FAMILY AND FRIENDS
Every internee shall be allowed to receive visitors, especially near relatives, at regularintervals and as frequently as possible. 430 The frequency of the visits will depend on practicalconsiderations, including security needs. 431 The visitors need not be family members, but may
be, for example, close friends. 432

425

GC art. 114 (“The Detaining Power shall afford internees all facilities to enable them to manage their property,
provided this is not incompatible with the conditions of internment and the law which is applicable.”).
426

GC COMMENTARY 473 (“This Article, however, must not be interpreted in such a way as to give the internee aprivileged position by making him not subject to the war regulations relating to enemy property. Clearly, a person
delegated by him could not have greater power than himself and it is for this reason that the text expressly mentions
the application of the laws in force.”).
427

GC art. 114 (“For this purpose, the said Power may give them permission to leave the place of internment inurgent cases and if circumstances allow.”).
428

GC COMMENTARY 473 (“It, however, remains a rule that the internee may act only by delegating his powers,
since as one delegation to the Geneva Conference declared, ‘it would not be reasonable to expect that an internee
should be enabled to conduct a whole business from his place of internment’. In this case again, the Protecting
Power will often have its services in demand.”).
429

GC art. 115 (“In all cases where an internee is a party to proceedings in any court, the Detaining Power shall, if
he so requests, cause the court to be informed of his detention and shall, within legal limits, ensure that all necessary
steps are taken to prevent him from being in any way prejudiced, by reason of his internment, as regards the
preparation and conduct of his case or as regards the execution of any judgment of the court.”).
430

GC art. 116 (“Every internee shall be allowed to receive visitors, especially near relatives, at regular intervals andas frequently as possible.”).
431

See GC COMMENTARY 475 (“The frequency of visits was not stated because it was important to leave thedetaining authorities discretion to appraise their security needs. Experience in the last war showed the advantage ofmonthly or bi-monthly visits which, in places of internment far away from urban centres, could last from one tothree days.”).

432

See GC COMMENTARY 475 (“It is not only members of their families who are allowed to visit internees. In
Kenya [during World War II], for example, internees without a family had been authorized, at the request of the725

As far as is possible, internees shall be permitted to visit their homes in urgent cases,
particularly in cases of death or serious illness of relatives. 433
10.26 INTERNEE ESCAPES
Similar to the rules on POW escape, 434 a number of provisions of the GC limit
punishment of internees with respect to escape. However, unlike POWs, 435 internees are notafforded any protection from punishment for successful escapes.
10.26.1 Punishment for the Escape Itself. Internees who are recaptured after having
escaped, or when attempting to escape, shall be liable only to disciplinary punishment in respectof this act, even if it is a repeated offense. 436
10.26.1.1 Punishment for Aiding and Abetting an Escape. Internees who aid andabet an escape, or an attempt to escape, shall be liable on this count to disciplinary punishment
only. 437
10.26.2 Offenses Committed in Connection With, or During, Escape.
10.26.2.1 Escape Not an Aggravating Circumstance for Offenses Committed
During Escape. Escape, or attempt to escape, even if it is a repeated offense, shall not be
deemed an aggravating circumstance in cases where an internee is prosecuted for offenses
committed during his or her escape. 438
10.26.2.2 Leniency in Favor of Disciplinary Punishments for Offenses Committedin Connection With Escape. The parties to the conflict shall ensure that the competentauthorities exercise leniency in deciding whether punishment inflicted for an offense shall be of adisciplinary or judicial nature, especially in respect of acts committed in connection with anescape, whether successful or not. 439 Thus, offenses that are committed in connection with anescape that are not serious should be punished in disciplinary as opposed to judicial
delegate of the International Committee of the Red Cross, to have visits from friends to whom they were in no way
related. The results of this experience are embodied in the wording of this paragraph [of Article 116 of the GC].”).
433

GC art. 116 (“As far as is possible, internees shall be permitted to visit their homes in urgent cases, particularly incases of death or serious illness of relatives.”).
434

Refer to § 9.25 (POW Escapes).

435

Refer to § 9.25.1 (No Punishment for Successful Escape).

436

GC art. 120 (“Internees who are recaptured after having escaped or when attempting to escape, shall be liable
only to disciplinary punishment in respect of this act, even if it is a repeated offence.”).
437

GC art. 120 (“Internees who aid and abet an escape, or attempt to escape, shall be liable on this count todisciplinary punishment only.”).
438

GC art. 121 (“Escape, or attempt to escape, even if it is a repeated offence, shall not be deemed an aggravating
circumstance in cases where an internee is prosecuted for offences committed during his escape.”).
439
GC art. 121 (“The Parties to the conflict shall ensure that the competent authorities exercise leniency in deciding
whether punishment inflicted for an offence shall be of a disciplinary or judicial nature, especially in respect of acts
committed in connection with an escape, whether successful or not.”).

726

proceedings. 440
This requirement does not compel the competent authorities to choose disciplinary overjudicial proceedings in any particular case. 441
10.26.3 Special Surveillance of Internees Who Have Previously Escaped or Attempted toEscape. Although paragraph 3 of Article 118 of the GC provides that internees who have served
disciplinary or judicial sentences shall not be treated differently from other internees, 442 internees
punished as a result of escape or attempt to escape may be subjected to special surveillance, on
condition that such surveillance: (1) does not affect the state of their health; (2) is exercised in aplace of internment; and (3) does not entail the abolition of any of the safeguards granted by the
GC. 443
10.26.4 Notification of Escape and Recapture. If an internee escapes, the State of which
the internee was a national or in which the national resided should be notified by the Detaining
Power’s National Protected Person Information Bureau through the intermediary of theProtecting Powers and Central Information Agency for protected persons. 444
10.27 GENERAL PROVISIONS APPLICABLE TO BOTH JUDICIAL AND DISCIPLINARY SANCTIONSREGARDING INTERNEESThis section addresses the rules that apply to both judicial and disciplinary sanctions
regarding internees.
10.27.1 Applicability of the Laws in Force to Internees. Subject to the provisions of
Chapter IX of the GC, the laws in force in the territory in which they are detained will continue
to apply to internees who commit offenses during internment. 445
10.27.2 Only Disciplinary Punishments for Internee-Specific Offenses. If general laws,
regulations, or orders declare acts committed by internees to be punishable, whereas the sameacts are not punishable when committed by persons who are not internees, such acts shall entail

440

GC COMMENTARY 488 (“It must be considered that whenever connected offences are not serious, they may only
be punished as breaches of discipline. If there is any doubt, the authorities should give the accused the benefit ofit.”).

441

Compare § 9.26.2 (Leniency in Favor of Disciplinary Rather Than Judicial Proceedings).

442

Refer to § 10.27.5 (Treatment of Internees Who Have Served Sentences).

443

GC art. 120 (“Article 118, paragraph 3, notwithstanding, internees punished as a result of escape or attempt toescape, may be subjected to special surveillance, on condition that such surveillance does not affect the state of theirhealth, that it is exercised in a place of internment and that it does not entail the abolition of any of the safeguards
granted by the present Convention.”).
444

Refer to § 10.31.1 (Accountability Information That Parties to a Conflict Should Collect).

445

GC art. 117 (“Subject to the provisions of the present Chapter, the laws in force in the territory in which they aredetained will continue to apply to internees who commit offences during internment.”).

727

disciplinary punishments only. 446
10.27.3 No Repetition of Punishment. No internee may be punished more than once forthe same act, or on the same count. 447
10.27.4 Penalties Imposed on Internees. The courts or authorities shall, in passing
sentence, take as far as possible into account the fact that the defendant is not a national of the
Detaining Power. 448 They shall be free to reduce the penalty prescribed for the offense withwhich the internee is charged and shall not be obliged, to this end, to apply the minimum
sentence prescribed. 449
10.27.4.1 Prohibited Penalties. Imprisonment in premises without daylight and,in general, all forms of cruelty without exception are forbidden. 450
Collective punishments of internees are also prohibited. 451
10.27.4.2 Deduction From Penalty for Duration of Preventive Detention. The
duration of preventive detention undergone by an internee shall be deducted from any
disciplinary or judicial penalty involving confinement to which he or she may be sentenced. 452
10.27.5 Treatment of Internees Who Have Served Sentences. Internees who have served
disciplinary or judicial sentences shall not be treated differently from other internees. 453
10.28 DISCIPLINARY PROCEEDINGS AND PUNISHMENT
In addition to the general principles applicable to the punishment of internees, thefollowing rules address disciplinary proceedings and punishment.
10.28.1 Internment Camp Authorities Who May Order Disciplinary Punishment.
Without prejudice to the competence of courts and higher authorities, disciplinary punishment
may be ordered only by the commandant of the place of internment, or by a responsible officer
446
GC art. 117 (“If general laws, regulations or orders declare acts committed by internees to be punishable,
whereas the same acts are not punishable when committed by persons who are not internees, such acts shall entail
disciplinary punishments only.”).
447

GC art. 117 (“No internee may be punished more than once for the same act, or on the same count.”).

448

GC art. 118 (“The courts or authorities shall in passing sentence take as far as possible into account the fact thatthe defendant is not a national of the Detaining Power.”).
449

GC art. 118 (“They shall be free to reduce the penalty prescribed for the offence with which the internee ischarged and shall not be obliged, to this end, to apply the minimum sentence prescribed.”).
450

GC art. 118 (“Imprisonment in premises without daylight and, in general, all forms of cruelty without exception
are forbidden.”).
451

Refer to § 10.5.3.2 (Collective Penalties and Measures of Intimidation or Terrorism).

452

GC art. 118 (“The duration of preventive detention undergone by an internee shall be deducted from any
disciplinary or judicial penalty involving confinement to which he may be sentenced.”).
453

GC art. 118 (“Internees who have served disciplinary or judicial sentences shall not be treated differently fromother internees.”).

728

or official who replaces him or her, or to whom the commandant has delegated his or her
disciplinary powers. 454 The delegation of disciplinary authorities by the commandant, however,does not absolve the commandant of his or her own responsibility and of his or her duty ofsupervision. 455
10.28.2 Confinement of Internees Awaiting Trial. Acts that constitute offenses against
discipline shall be investigated immediately. 456 This rule shall be applied, in particular, in casesof escape or attempt to escape. 457 Recaptured internees shall be handed over to the competentauthorities as soon as possible. 458 Competent authorities are those directly responsible for the
person concerned before the escape and who are entitled to direct that the internee receive a
disciplinary punishment. 459
In cases of offenses against discipline, confinement awaiting trial shall be reduced to an
absolute minimum for all internees, and shall not exceed fourteen days. 460 Although the words“awaiting trial” are used in the GC, the GC does not require that this period of investigation
before the disciplinary proceedings have the complicated character of pre-trial discovery andinvolve motions, for example, as in the judicial context. 461
The provisions of Articles 124 and 125 of the GC shall apply to internees who are in
confinement awaiting trial for offenses against discipline. 462 Thus, the conditions of any
454

GC art. 123 (“Without prejudice to the competence of courts and higher authorities, disciplinary punishment may
be ordered only by the commandant of the place of internment, or by a responsible officer or official who replaces
him, or to whom he has delegated his disciplinary powers.”).
455

GC COMMENTARY 490 (“In very large places of internment, however, the need to place before the commandant
every case involving disciplinary punishment would lead to delays and complications. The Government Experts had
already noted this and, at their suggestion, the Stockholm Draft included a provision that disciplinary powers could
be delegated. This delegation of powers, authorized in the paragraph under discussion, does not however absolve
the commandant from his own responsibility nor his duty of supervision. Since, under Article 99, he is responsible
for the application of the Convention, he assumes responsibility for any abuses of which his subordinates might
become guilty in exercising the disciplinary power he has delegated to them.”).

456

GC art. 122 (“Acts which constitute offences against discipline shall be investigated immediately.”).

457

GC art. 122 (“This rule shall be applied, in particular, in cases of escape or attempt to escape.”).

458

GC art. 122 (“Recaptured internees shall be handed over to the competent authorities as soon as possible.”).

459

See GC COMMENTARY 488 (“With regard to handing over the recaptured internee to the ‘competent’ authorities,
this text should be compared with paragraph 2 of Article 92 of the Third Convention, which provides that an
escaped prisoner of war must be handed over to the competent military authorities. In both cases the competentauthorities are those directly responsible for the person concerned before the escape-i.e. either the campcommandant (or the commander of the labour detachment), or the commandant of the place of internment. In short,the competent authority is the authority entitled to inflict a disciplinary punishment on the internee.”).
460

GC art. 122 (“In case of offences against discipline, confinement awaiting trial shall be reduced to an absolute
minimum for all internees, and shall not exceed fourteen days.”).
461

See GC COMMENTARY 488 (“While an investigation to establish the facts must always precede the infliction of apunishment, it will not in this case have the complicated character of a judicial enquiry.”).

462
GC art. 122 (“The provisions of Articles 124 and 125 shall apply to internees who are in confinement awaiting
trial for offences against discipline.”). Refer to § 10.28.6 (Conditions for Internees Serving Disciplinary
Punishments).

729

confinement before the trial should be at least as good as those afforded internees who are
confined as part of disciplinary punishment. 463
10.28.3 Rights of Internees in Disciplinary Proceedings. Before any disciplinary
punishment is awarded, the accused internee shall be given: (1) precise information regarding
the offenses of which he or she is accused; (2) an opportunity to explain his or her conduct; and(3) an opportunity to defend himself or herself. 464 The internee shall be permitted, in particular,
to call witnesses and to have recourse, if necessary, to the services of a qualified interpreter. 465
The decision shall be announced in the presence of the accused and of a member of theInternee Committee. 466
10.28.4 Record of Disciplinary Punishments. A record of disciplinary punishments shallbe maintained by the commandant of the place of internment and shall be open to inspection byrepresentatives of the Protecting Power. 467
10.28.5 Types of Disciplinary Punishments and Procedures for Dispensing Punishment.
In no case shall disciplinary penalties be inhuman, brutal, or dangerous for the health ofinternees. 468
In addition, prolonged standing and roll-calls, punishment drill, military drill andmaneuvers, and the reduction of food rations are prohibited. 469
Account shall be taken of the internee’s age, sex, and state of health. 470 The disciplinary
punishments applicable to internees shall be the following:•a fine that shall not exceed 50 percent of the wages that the internee would otherwise
receive under Article 95 of the GC during a period of not more than thirty days;

463

See GC COMMENTARY 489 (“This solution, moreover, is logical and conforms to the traditional procedure inpenal matters. Deprivation of liberty while awaiting trial indeed takes place before the guilt of the accused has been
established. Detention must not, therefore, be harsher for a man who is merely accused than for a guilty person.”).
464

GC art. 123 (“Before any disciplinary punishment is awarded, the accused internee shall be given precise
information regarding the offences of which he is accused, and given an opportunity of explaining his conduct andof defending himself.”).
465

GC art. 123 (“He shall be permitted, in particular, to call witnesses and to have recourse, if necessary, to theservices of a qualified interpreter.”).
466

GC art. 123 (“The decision shall be announced in the presence of the accused and of a member of the Internee
Committee.”).
467

GC art. 123 (“A record of disciplinary punishments shall be maintained by the commandant of the place ofinternment and shall be open to inspection by representatives of the Protecting Power.”).
468

GC art. 119 (“In no case shall disciplinary penalties be inhuman, brutal or dangerous for the health ofinternees.”).
469

Refer to § 10.20.3.2 (Prohibition Against Prolonged Standing, Roll-Calls, Punishment Drill, Military Drill andManuevers, or the Reduction of Food Rations).
470

GC art. 119 (“Account shall be taken of the internee’s age, sex and state of health.”).

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•

discontinuance of privileges granted over and above the treatment provided for by theGC;•fatigue duties, not exceeding two hours daily, in connection with the maintenance of theplace of internment; and•confinement. 471

The duration of any single punishment shall in no case exceed a maximum of thirty
consecutive days, even if the internee is answerable for several breaches of discipline when his
or her case is dealt with, regardless of whether such breaches are connected. 472
The duration of confinement awaiting trial shall in any case be deducted from any
sentence of confinement. 473
The period elapsing between the time of award of a disciplinary punishment and its
execution shall not exceed one month. 474 When an internee is awarded a further disciplinary
punishment, a period of at least three days shall elapse between the execution of any two of thepunishments, if the duration of one of these punishments is ten days or more. 475
10.28.6 Conditions for Internees Serving Disciplinary Punishments. Conditions fordisciplinary punishments must comport with the requirements for humane treatment. In addition,
the following rules apply:
10.28.6.1 Premises Where Disciplinary Punishments Are to Be Served. Internees
shall not, in any case, be transferred to penitentiary establishments (e.g., prisons, penitentiaries,
convict prisons) to undergo disciplinary punishments. 476
The premises in which disciplinary punishments occur shall conform to sanitaryrequirements; they shall, in particular, be provided with adequate bedding. 477 Internees
471

GC art. 119 (“The disciplinary punishments applicable to internees shall be the following: (1) A fine which shallnot exceed 50 per cent of the wages which the internee would otherwise receive under the provisions of Article 95
during a period of not more than thirty days. (2) Discontinuance of privileges granted over and above the treatment
provided for by the present Convention. (3) Fatigue duties, not exceeding two hours daily, in connection with themaintenance of the place of internment. (4) Confinement.”).
472

GC art. 119 (“The duration of any single punishment shall in no case exceed a maximum of thirty consecutive
days, even if the internee is answerable for several breaches of discipline when his case is dealt with, whether suchbreaches are connected or not.”).
473

GC art. 122 (“Its duration shall in any case be deducted from any sentence of confinement.”).

474

GC art. 123 (“The period elapsing between the time of award of a disciplinary punishment and its execution shallnot exceed one month.”).
475

GC art. 123 (“When an internee is awarded a further disciplinary punishment, a period of at least three days shallelapse between the execution of any two of the punishments, if the duration of one of these is ten days or more.”).
476

GC art. 124 (“Internees shall not in any case be transferred to penitentiary establishments (prisons, penitentiaries,
convict prisons, etc.) to undergo disciplinary punishment therein.”).
477

GC art. 124 (“The premises in which disciplinary punishments are undergone shall conform to sanitaryrequirements; they shall in particular be provided with adequate bedding.”).

731

undergoing punishment shall be enabled to keep themselves in a state of cleanliness. 478
Women internees undergoing disciplinary punishment shall be confined in separate
quarters from male internees and shall be under the immediate supervision of women. 479
10.28.6.2 Exercise and Access to the Open Air. Internees awarded disciplinary
punishment shall be allowed to exercise and to stay in the open air at least two hours daily. 480
Exercising and staying in the open air should be given as an opportunity and should not becompelled. 481
10.28.6.3 Attendance at Daily Medical Inspection and Medical Attention.
Internees awarded disciplinary punishment shall be allowed, if they so request, to be present at
daily medical inspections. 482 They shall receive the attention that their state of health requires
and, if necessary, shall be removed to the infirmary of the place of internment or to a hospital. 483
10.28.6.4 Reading, Writing, Correspondence, and Packages. Internees awarded
disciplinary punishment shall have permission to read and write, and to send and receive
letters. 484 Parcels and remittances of money, however, may be withheld from them until thecompletion of their punishment; such consignments shall meanwhile be entrusted to the Internee
Committee, who will hand over to the infirmary the perishable goods contained in the parcels. 485
No internee given a disciplinary punishment may be deprived of the benefit of theprovisions of Articles 101 and 143 of the GC. 486 Thus, internees undergoing disciplinary478

GC art. 124 (“Internees undergoing punishment shall be enabled to keep themselves in a state of cleanliness.”).

479

GC art. 124 (“Women internees undergoing disciplinary punishment shall be confined in separate quarters frommale internees and shall be under the immediate supervision of women.”).
480

GC art. 125 (“Internees awarded disciplinary punishment shall be allowed to exercise and to stay in the open air
at least two hours daily.”).
481

See GC COMMENTARY 495 (“It should be made quite clear, moreover, that exercise in the open air is a possibility
offered to the internee; whether he takes advantage of it or not is according to his wishes. It would not be right,
indeed, if, under the pretext of applying this rule, certain commandants of places of internment made the punishment
more severe by compulsory exercise, keeping the internees in the full sun or the snow for two hours at a stretch as
sometimes happened during the Second World War.”).

482

GC art. 125 (“They shall be allowed, if they so request, to be present at the daily medical inspections.”). Refer to§ 10.14.1.3 (Monthly Medical Inspections).
483

GC art. 125 (“They shall receive the attention which their state of health requires and, if necessary, shall be
removed to the infirmary of the place of internment or to a hospital.”).
484

GC art. 125 (“They shall have permission to read and write, likewise to send and receive letters.”). Refer to§ 10.23.2 (Internees’ Correspondence Rights and Quota).
485

GC art. 125 (“Parcels and remittances of money, however, may be withheld from them until the completion of
their punishment; such consignments shall meanwhile be entrusted to the Internee Committee, who will hand over tothe infirmary the perishable goods contained in the parcels.”).
486

GC art. 125 (“No internee given a disciplinary punishment may be deprived of the benefit of the provisions ofArticles 107 and 143 of the present Convention.”). Article 125 of the GC specifies Article 107 instead of Article
101. However, considering (1) the legislative history; (2) the parallel provision in Article 98 of the GPW that refers
to the right of making complaints; (3) the fact that the right to send or receive letters is already given in paragraph 3

732

punishments may not be deprived of the right to make requests and complaints, or to deal withrepresentatives of the Protecting Power (including representatives of an impartial humanitarianorganization performing the functions of the Protecting Power). 487
10.29 JUDICIAL PROCEEDINGS REGARDING PROTECTED PERSONS IN OCCUPIED TERRITORY OR
INTERNEES IN A BELLIGERENT’S HOME TERRITORY
In addition to the general principles applicable to the punishment of internees, thefollowing rules address judicial proceedings against internees in a belligerent’s home territoryand protected persons in occupied territory.
The provisions of Articles 71 through 76 of the GC shall apply, by analogy, toproceedings against internees who are in the national territory of the Detaining Power. 488
Articles 71-76 of the GC address the penal procedures for protected persons in occupied
territory. Thus, this section has been written with a view towards describing both situations.
10.29.1 Information to Internee Committees. Internee Committees shall be informed of
all judicial proceedings instituted against internees whom they represent, and of their result. 489
10.29.2 Pre-Trial Matters.
10.29.2.1 Prompt Information of the Charges and Brought to Trial as Rapidly as
Possible. Accused persons who are prosecuted by the Occupying or Detaining Power shall bepromptly informed, in writing, in a language that they understand, of the particulars of thecharges preferred against them, and shall be brought to trial as rapidly as possible. 490
10.29.2.2 Notification of Proceeding in Respect of Charges Involving the Death
Penalty or Imprisonment for Two or More Years. The Protecting Power shall be informed of allproceedings instituted by the Occupying or Detaining Power against protected persons in respectof charges involving the death penalty or imprisonment for two years or more, and shall beenabled, at any time, to obtain information regarding the state of such proceedings. 491
Furthermore, the Protecting Power shall be entitled, on request, to be furnished with allof Article 125 of the GC; and (4) the principles underlying the GC; “[i]t may therefore be deduced that the lastparagraph refers to Article 107 in error for Article 101.” GC COMMENTARY 497.
487

Refer to § 10.21 (Internee Petitions, Complaints); § 10.33 (Access to Internees by Protecting Powers, ICRC, andOther Relief Organizations).
488

GC art. 126 (“The provisions of Articles 71 to 76 inclusive shall apply, by analogy, to proceedings againstinternees who are in the national territory of the Detaining Power.”).
489

GC art. 118 (“Internee Committees shall be informed of all judicial proceedings instituted against internees
whom they represent, and of their result.”).
490

GC art. 71 (“Accused persons who are prosecuted by the Occupying Power shall be promptly informed, in
writing, in a language which they understand, of the particulars of the charges preferred against them, and shall be
brought to trial as rapidly as possible.”).
491
GC art. 71 (“The Protecting Power shall be informed of all proceedings instituted by the Occupying Poweragainst protected persons in respect of charges involving the death penalty or imprisonment for two years or more; itshall be enabled, at any time, to obtain information regarding the state of such proceedings.”).

733

particulars of these and of any other proceedings instituted by the Occupying or Detaining Poweragainst protected persons. 492
The notification to the Protecting Power, as provided for in the second paragraph of
Article 71 of the GC, shall be sent immediately, and shall in any case reach the Protecting Power
three weeks before the date of the first hearing. 493 Unless, at the opening of the trial, evidence issubmitted that the provisions of Article 71 of the GC are fully complied with, the trial shall notproceed. 494 The notification shall include the following particulars:•

description of the accused;•

place of residence or detention;•

specification of the charge or charges (with mention of the penal provisions under which
it is brought);•

designation of the court that will hear the case; and•place and date of the first hearing. 495

10.29.3 Right of Defense and Trial Procedure. Accused persons shall have the right topresent evidence necessary to their defense and may, in particular, call witnesses. 496 They shallhave the right to be assisted by a qualified advocate or counsel of their own choice, who shall beable to visit them freely and shall enjoy the necessary facilities for preparing the defense. 497
10.29.3.1 Additional Provision for Defense Counsel and Interpreter. Failing a
choice by the accused, the Protecting Power may provide him or her with an advocate orcounsel. 498 Where the accused person is facing a serious charge and the Protecting Power is not
functioning, the Occupying or Detaining Power, subject to the consent of the accused, shall492

GC art. 71 (“Furthermore, the Protecting Power shall be entitled, on request, to be furnished with all particularsof these and of any other proceedings instituted by the Occupying Power against protected persons.”).
493

GC art. 71 (“The notification to the Protecting Power, as provided for in the second paragraph above, shall besent immediately, and shall in any case reach the Protecting Power three weeks before the date of the firsthearing.”).
494

GC art. 71 (“Unless, at the opening of the trial, evidence is submitted that the provisions of this Article are fullycomplied with, the trial shall not proceed.”).
495

GC art. 71 (“The notification shall include the following particulars: (a) description of the accused; (b) place ofresidence or detention; (c) specification of the charge or charges (with mention of the penal provisions under which
it is brought); (d) designation of the court which will hear the case; (e) place and date of the first hearing.”).
496

GC art. 72 (“Accused persons shall have the right to present evidence necessary to their defence and may, inparticular, call witnesses.”).
497

GC art. 72 (“They shall have the right to be assisted by a qualified advocate or counsel of their own choice, whoshall be able to visit them freely and shall enjoy the necessary facilities for preparing the defence.”).
498

GC art. 72 (“Failing a choice by the accused, the Protecting Power may provide him with an advocate orcounsel.”).

734

provide an advocate or counsel. 499 Accused persons shall, unless they freely waive suchassistance, be aided by an interpreter, both during preliminary investigation and during thehearing in court. 500 They shall have the right at any time to object to the interpreter and to ask
for the interpreter to be replaced. 501
10.29.3.2 Attendance by the Protecting Power in the Proceedings.
Representatives of the Protecting Power shall have the right to attend the trial of any protected
person, unless the hearing, as an exceptional measure, has to be held in camera in the interests ofthe security of the Occupying or Detaining Power, which shall then notify the Protecting
Power. 502 A notification in respect of the date and place of trial shall be sent to the Protecting
Power. 503
10.29.3.3 Regular Trial. No sentence shall be pronounced by the competentcourts of the Occupying or Detaining Power except after a regular trial. 504
10.29.3.4 Notification of Judgment Involving Sentence of Death or Imprisonment.
Any judgment involving a sentence of death, or imprisonment for two years or more, shall be
communicated, with the relevant grounds, as rapidly as possible to the Protecting Power. 505 The
notification shall contain a reference to the notification made under Article 71 of the GC and, inthe case of sentences of imprisonment, the name of the place where the sentence is to beserved. 506 A record of judgments other than those referred to above shall be kept by the court
and shall be open to inspection by representatives of the Protecting Power. 507 Any period
allowed for appeal in the case of sentences involving the death penalty, or imprisonment of two
years or more, shall not run until notification of judgment has been received by the Protecting
Power. 508

499

GC art. 72 (“When an accused person has to meet a serious charge and the Protecting Power is not functioning,
the Occupying Power, subject to the consent of the accused, shall provide an advocate or counsel.”).
500

GC art. 72 (“Accused persons shall, unless they freely waive such assistance, be aided by an interpreter, bothduring preliminary investigation and during the hearing in court.”).
501

GC art. 72 (“They shall have the right at any time to object to the interpreter and to ask for his replacement.”).

502

GC art. 74 (“Representatives of the Protecting Power shall have the right to attend the trial of any protected
person, unless the hearing has, as an exceptional measure, to be held in camera in the interests of the security of the
Occupying Power, which shall then notify the Protecting Power.”).
503

GC art. 74 (“A notification in respect of the date and place of trial shall be sent to the Protecting Power.”).

504

GC art. 71 (“No sentence shall be pronounced by the competent courts of the Occupying Power except after aregular trial.”).
505

GC art. 74 (“Any judgment involving a sentence of death, or imprisonment for two years or more, shall be
communicated, with the relevant grounds, as rapidly as possible to the Protecting Power.”).
506

GC art. 74 (“The notification shall contain a reference to the notification made under Article 71, and, in the caseof sentences of imprisonment, the name of the place where the sentence is to be served.”).
507

GC art. 74 (“A record of judgments other than those referred to above shall be kept by the court and shall be open
to inspection by representatives of the Protecting Power.”).
508

GC art. 74 (“Any period allowed for appeal in the case of sentences involving the death penalty, or imprisonmentof two years or more, shall not run until notification of judgment has been received by the Protecting Power.”).

735

10.29.4 Right of Appeal. A convicted person shall have the right of appeal provided forby the laws applied by the court. 509 The convicted person shall be fully informed of his or her
right to appeal or petition, and of the time limit within which he or she may do so. 510
The penal procedure in Section III of the GC shall apply, as far as it is applicable, toappeals. 511 Where the laws applied by the court make no provision for appeals, the convictedperson shall have the right to petition against the finding and sentence to the competent authorityof the Occupying or Detaining Power. 512
10.29.5 Death Sentences. In no case shall persons condemned to death be deprived of theright of petition for pardon or reprieve. 513
No death sentence shall be carried out before the expiration of a period of at least six
months from the date of receipt by the Protecting Power of the notification of the final judgment
confirming such death sentence, or of an order denying pardon or reprieve. 514
The six-month period of suspension of the death sentence prescribed in Article 75 of the
GC may be reduced in individual cases in circumstances of grave emergency involving anorganized threat to the security of the Occupying or Detaining Power or its forces, provided
always that the Protecting Power is notified of such reduction and is given reasonable time andopportunity to make representations to the competent occupying or domestic authorities inrespect of such death sentences. 515
10.29.6 Conditions for Accused or Convicted Protected Persons Who Are Detained. If
found in occupied territory, protected persons accused of offenses shall be detained in theoccupied country, and, if convicted, they shall serve their sentences therein. 516 This provision
does not preclude the appearance of convicted persons before appeal courts outside the occupied
509

GC art. 73 (“A convicted person shall have the right of appeal provided for by the laws applied by the court.”).

510

GC art. 73 (“He shall be fully informed of his right to appeal or petition and of the time limit within which hemay do so.”).
511

GC art. 73 (“The penal procedure provided in the present Section shall apply, as far as it is applicable, toappeals.”).
512

GC art. 73 (“Where the laws applied by the Court make no provision for appeals, the convicted person shall havethe right to petition against the finding and sentence to the competent authority of the Occupying Power.”).
513

GC art. 75 (“In no case shall persons condemned to death be deprived of the right of petition for pardon or
reprieve.”).
514

GC art. 75 (“No death sentence shall be carried out before the expiration of a period of at least six months fromthe date of receipt by the Protecting Power of the notification of the final judgment confirming such death sentence,or of an order denying pardon or reprieve.”).
515

GC art. 75 (“The six months period of suspension of the death sentence herein prescribed may be reduced inindividual cases in circumstances of grave emergency involving an organized threat to the security of the Occupying
Power or its forces, provided always that the Protecting Power is notified of such reduction and is given reasonable
time and opportunity to make representations to the competent occupying authorities in respect of such death
sentences.”).
516

GC art. 76 (“Protected persons accused of offences shall be detained in the occupied country, and if convicted
they shall serve their sentences therein.”).

736

territory, or the possibility of protected persons receiving medical care outside the occupied
territory. 517
Accused or convicted protected persons who are detained shall, if possible, be separated
from other detainees and shall enjoy conditions of food and hygiene that will be sufficient tokeep them in good health, and that will be at least equal to those obtaining in prisons in thatcountry. 518
10.29.6.1 Medical Attention and Spiritual Assistance. Accused or convicted
protected persons who are detained shall receive the medical attention required by their state ofhealth. 519 They shall also have the right to receive any spiritual assistance that they may
require. 520
10.29.6.2 Separate Confinement for Women and Special Treatment for Minors.
Women shall be confined in separate quarters and shall be under the direct supervision of
women. 521 Proper regard shall be paid to the special treatment due to minors. 522
10.29.6.3 Visits by the Protecting Power and ICRC and Right to Receive Relief
Parcel. Accused or convicted protected persons who are detained shall have the right to bevisited by delegates of the Protecting Power and the ICRC, in accordance with the provisions ofArticle 143 of the GC. 523 Accused or convicted protected persons who are detained also shallhave the right to receive at least one relief parcel monthly. 524
10.30 TRANSFERS OF INTERNEES FROM THE PLACE OF INTERNMENT
The rules in this section apply to transfers of internees from the place of internment.
Additional rules apply to the transfer of protected persons from the belligerent’s home

517

See II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 835 (“A provision appeared in
Article 67 of the Stockholm text that protected persons indicted or convicted by the courts in occupied territory shallin no case be taken outside the said territory. The Committee felt this prohibition to be too emphatic since it would
preclude the appearance of convicted persons before appeal courts outside the occupied territory, or the possibilityof their receiving health treatment outside the territory. The Committee considered that the principle behind thisprovision could be preserved by including in Article 66 a provision to the effect that protected persons indicted shallbe detained in the occupied country and if convicted shall serve their sentence therein.”).

518

GC art. 76 (“They shall, if possible, be separated from other detainees and shall enjoy conditions of food andhygiene which will be sufficient to keep them in good health, and which will be at least equal to those obtaining inprisons in the occupied country.”).
519

GC art. 76 (“They shall receive the medical attention required by their state of health.”).

520

GC art. 76 (“They shall also have the right to receive any spiritual assistance which they may require.”).

521

GC art. 76 (“Women shall be confined in separate quarters and shall be under the direct supervision of women.”).

522

GC art. 76 (“Proper regard shall be paid to the special treatment due to minors.”).

523

GC art. 76 (“Protected persons who are detained shall have the right to be visited by delegates of the Protecting
Power and of the International Committee of the Red Cross, in accordance with the provisions of Article 143.”).
524

GC art. 76 (“Such persons shall have the right to receive at least one relief parcel monthly.”).

737

territory. 525 Individual or mass forcible transfers of protected persons from occupied territory areprohibited. 526
10.30.1 Determining Whether to Transfer Internees. When making decisions regarding
the transfer of internees, the Detaining Power shall take their interests into account and, inparticular, shall not do anything to increase the difficulties of repatriating them or returning themto their own homes. 527
Sick, wounded, or infirm internees, and maternity cases, shall not be transferred if thejourney would be seriously detrimental to them, unless their safety imperatively so demands. 528
If the combat zone draws close to a place of internment, the internees in that place shallnot be transferred unless their removal can be carried out in adequate conditions of safety, or
unless they are exposed to greater risks by remaining on the spot than by being transferred. 529
10.30.2 Conditions for the Transfer of Internees. The transfer of internees shall always
be effected humanely. 530 As a general rule, it shall be carried out by rail or other means oftransport, and under conditions at least equal to those obtaining for the forces of the Detaining
Power in their changes of station. 531 If, as an exceptional measure, such removals have to beeffected on foot, they may not take place unless the internees are in a fit state of health, and may
not in any case expose them to excessive fatigue. 532 This provision seeks to prevent abuses suchas the forced “death marches” that occurred during World War II. 533 When considering
movement by foot, the Detaining Power must assess the fitness of each individual, not the525

Refer to § 10.8.3 (Transfers of Protected Persons From a Belligerent’s Home Territory).

526

Refer to § 11.12.3 (Prohibition Against Forcible Transfers and Deportations).

527

GC art. 127 (“When making decisions regarding the transfer of internees, the Detaining Power shall take theirinterests into account and, in particular, shall not do anything to increase the difficulties of repatriating them or
returning them to their own homes.”).
528

GC art. 127 (“Sick, wounded or infirm internees and maternity cases shall not be transferred if the journey would
be seriously detrimental to them, unless their safety imperatively so demands.”).
529

GC art. 127 (“If the combat zone draws close to a place of internment, the internees in the said place shall not betransferred unless their removal can be carried out in adequate conditions of safety, or unless they are exposed togreater risks by remaining on the spot than by being transferred.”).
530

GC art. 127 (“The transfer of internees shall always be effected humanely.”).

531

GC art. 127 (“As a general rule, it shall be carried out by rail or other means of transport, and under conditions atleast equal to those obtaining for the forces of the Detaining Power in their changes of station.”).
532

GC art. 127 (“If, as an exceptional measure, such removals have to be effected on foot, they may not take place
unless the internees are in a fit state of health, and may not in any case expose them to excessive fatigue.”).
533

II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 269 (“Mr. GARDNER (United
Kingdom) submitted the three following amendments: … It had been proved that during the Second World War overten thousand prisoners lost their lives while being transferred by sea; but a very much larger number lost their lives
while being transferred by land. He referred not only to the Bataan march, but also to a march in Borneo wheresome four thousand prisoners had started out, and only six or seven survived. There were also the forced marches
carried out by prisoners in Central Europe towards the end of the war; it was certainly not due to any efforts by the
Detaining Power that the number of deaths during those marches was comparatively small.”).

738

condition of the majority. 534
The Detaining Power shall supply internees during transfer with drinking water and foodsufficient in quantity, quality, and variety to maintain them in good health, and also with thenecessary clothing, adequate shelter, and the necessary medical attention. 535 The Detaining
Power shall take all suitable precautions to ensure their safety during transfer, and shall establish
before their departure a complete list of all internees transferred. 536
10.30.3 Procedures for the Transfer of Internees. In the event of transfer, internees shallbe officially advised of their departure and of their new postal address. 537 Such notification shallbe given in time for them to pack their luggage and inform their next of kin. 538
10.30.3.1 Baggage. Internees shall be allowed to take with them their personal
effects, and the correspondence and parcels that have arrived for them. 539 The weight of suchbaggage may be limited if the conditions of transfer so require, but in no case may be limited toless than 25 kilograms (approximately 55 pounds) per internee. 540
10.30.3.2 Forwarding of Mail. Mail and parcels addressed to their former placeof internment shall be forwarded to internees without delay. 541
10.30.3.3 Disposition of Community Property and Remaining Property. The
commandant of the place of internment shall take, in agreement with the Internee Committee,
any measures needed to ensure the transport of the internees’ community property and of theluggage the internees are unable to take with them in consequence of restrictions that may be

534

GC COMMENTARY 499 (“It is stated expressly that transfers on foot are only permissible in exceptional cases andif the internees are in a fit state of health. It is not the physical fitness of the majority of the internees which is todecide whether the transfer will be made on foot or not. The fitness of each individual must be considered and those
who cannot walk must be taken in some sort of transport.”).
535

GC art. 127 (“The Detaining Power shall supply internees during transfer with drinking water and food sufficientin quantity, quality and variety to maintain them in good health, and also with the necessary clothing, adequate
shelter and the necessary medical attention.”).
536

GC art. 127 (“The Detaining Power shall take all suitable precautions to ensure their safety during transfer, andshall establish before their departure a complete list of all internees transferred.”).
537

GC art. 128 (“In the event of transfer, internees shall be officially advised of their departure and of their new
postal address.”).
538

GC art. 128 (“Such notification shall be given in time for them to pack their luggage and inform their next ofkin.”).
539

GC art. 128 (“They shall be allowed to take with them their personal effects, and the correspondence and parcels
which have arrived for them.”).
540

GC art. 128 (“The weight of such baggage may be limited if the conditions of transfer so require, but in no caseto less than twenty-five kilograms per internee.”).
541

GC art. 128 (“Mail and parcels addressed to their former place of internment shall be forwarded to them without
delay.”).

739

imposed on baggage that internees may take with them. 542
10.31 NATIONAL ACCOUNTING FOR PROTECTED PERSONS IN ITS POWER
A proper accounting of the detention or assigned residence of protected persons is an
important responsibility of States in relation to protected persons in their power. In order toprovide as full an accounting as possible, and in order to minimize misidentification, a State
must obtain detailed information about certain protected persons in its power for forwarding
through its National Protected Person Information Bureau to the Central Information Agency forprotected persons.
10.31.1 Accountability Information That Parties to a Conflict Should Collect. Each of
the parties to the conflict shall, within the shortest possible period, give its National Protected
Person Information Bureau information of any measure taken by it concerning any protected
persons who are: (1) kept in custody for more than two weeks; (2) subjected to assigned
residence; or (3) interned. 543
The information received by the National Protected Person Information Bureau andtransmitted by it shall be of such a character as to make it possible to identify the protected
person exactly and to advise his or her next of kin quickly. 544 The information in respect of each
person shall include at least:•

surname (i.e., last name) and first names (i.e., first and middle names);•

place and date of birth;•

nationality;•

last residence;•

any distinguishing characteristics;•

first name of the father and the maiden name of the mother;•

the date, place, and nature of the action taken with regard to the individual;•

the address at which correspondence may be sent to him or her; and•the name and address of the person designated by the protected person to be informed of542

GC art. 128 (“The commandant of the place of internment shall take, in agreement with the Internee Committee,
any measures needed to ensure the transport of the internees’ community property and of the luggage the internees
are unable to take with them in consequence of restrictions imposed by virtue of the second paragraph.”).
543

GC art. 136 (“Each of the Parties to the conflict shall, within the shortest possible period, give its Bureau
information of any measure taken by it concerning any protected persons who are kept in custody for more than two
weeks, who are subjected to assigned residence or who are interned.”).
544

GC art. 138 (“The information received by the national Bureau and transmitted by it shall be of such a characteras to make it possible to identify the protected person exactly and to advise his next of kin quickly.”).

740

information concerning him or her. 545
In addition to this information, information regarding all changes pertaining to these
protected persons, such as transfers, releases, repatriations, escapes, admittances to hospitals,
births, and deaths, shall also be collected and transmitted. 546
In addition to admittances to hospitals, information regarding the state of health ofinternees who are seriously ill or seriously wounded must be supplied to the National Protected
Person Information Bureau regularly and, if possible, every week. 547
In addition to notices of death, copies of records of death of internees shall be forwardedin accordance with Article 129 of the GC. 548 Lists of graves of deceased internees shall be
forwarded, as soon as circumstances permit, in accordance with Article 130 of the GC. 549
10.31.2 National Protected Person Information Bureau. Upon the outbreak of aninternational armed conflict and in all cases of occupation of the territory of one State by anotherState, each of the parties to the conflict shall establish an official National Protected Person
Information Bureau responsible for receiving and transmitting information in respect of theprotected persons who are in its power. 550 The State has discretion about the nature,composition, and working methods of the National Protected Person Information Bureau. 551
All communications in writing made by any National Protected Person Information
Bureau shall be authenticated by a signature or a seal. 552
545

GC art. 138 (“The information in respect of each person shall include at least his surname, first names, place anddate of birth, nationality, last residence and distinguishing characteristics, the first name of the father and the maiden
name of the mother, the date, place and nature of the action taken with regard to the individual, the address at whichcorrespondence may be sent to him and the name and address of the person to be informed.”).
546

GC art. 136 (“It shall, furthermore, require its various departments concerned with such matters to provide theaforesaid Bureau promptly with information concerning all changes pertaining to these protected persons, as, forexample, transfers, releases, repatriations, escapes, admittances to hospitals, births and deaths.”).
547

GC art. 138 (“Likewise, information regarding the state of health of internees who are seriously ill or seriously
wounded shall be supplied regularly and if possible every week.”).
548

Refer to § 10.34.2 (Death Certificates).

549

Refer to § 10.34.4 (Maintenance and Records of Graves and Ashes).

550

GC art. 136 (“Upon the outbreak of a confict and in all cases of occupation, each of the Parties to the conflictshall establish an official Information Bureau responsible for receiving and transmitting information in respect of theprotected persons who are in its power.”).
551

GC COMMENTARY 523 (“[Paragraph 1 of Article 136 of the GC] does not state in detail the nature, composition
and working methods of the Bureau, all these matters being left to the free decision of each Party, nor does it state
what authority will be responsible for establishing and conducting the Bureau. … During the Second World War,the Bureaux which had the task of transmitting information concerning civilian internees to the Central Agency werevaried in nature and origin. In some cases, they were the same as the Bureaux responsible for prisoners of war; inothers, they were established by the National Red Cross Society; most often, however, they depended directly on
government authorities, such as the Ministry of the Interior or the Ministry of Security.”).
552

GC art. 137 (“All communications in writing made by any Bureau shall be authenticated by a signature or aseal.”).

741

The National Protected Person Information Bureau: (1) receives and forwards certain
information to the Powers concerned, through the intermediary of the Protecting Powers and theCentral Information Agency for protected persons; (2) replies to inquiries; (3) withholds certain
information from the Powers concerned, but not the Central Information Agency for protected
persons, in the interest of protected persons or their relatives; (4) collects personal valuables leftby certain protected persons; and (5) in occupied territory, has a special section that is
responsible for identifying children whose identity is in doubt.
10.31.2.1 Receiving and Forwarding Certain Information. The National
Protected Person Information Bureau receives certain information regarding protected persons
from other departments of the State to which it belongs. 553
Each National Protected Person Information Bureau shall immediately forward
information concerning protected persons by the most rapid means to the Powers of whom these
persons are nationals, or to Powers in whose territory they resided, through the intermediary of
the Protecting Powers and likewise through the Central Information Agency for protected
persons. 554
10.31.2.2 Replying to Inquiries Regarding Protected Persons. The National
Protected Person Information Bureau shall also reply to all inquiries that may be received
regarding protected persons. 555 Responses to inquiries must be made consistent with theprotection of protected persons against insults and public curiosity. 556
10.31.2.3 Withholding of Information When Detrimental to the Person or His or
Her Relatives. The National Protected Person Information Bureau shall transmit information
concerning a protected person unless its transmission might be detrimental to the person
concerned or to his or her relatives. 557 Even in such a case, the information may not be withheld
from the Central Information Agency for protected persons, which, upon being notified of thecircumstances, will take the necessary precautions indicated in Article 140 of the GC. 558 This
rule seeks to protect persons who have fled persecution from their home governments, as well as
553

GC art. 136 (“Each of the Parties to the conflict shall, within the shortest possible period, give its Bureau
information of any measure taken by it concerning any protected persons who are kept in custody for more than two
weeks, who are subjected to assigned residence or who are interned. It shall, furthermore, require its various
departments concerned with such matters to provide the aforesaid Bureau promptly with information concerning allchanges pertaining to these protected persons, as, for example, transfers, releases, repatriations, escapes, admittances
to hospitals, births and deaths.”).

554

GC art. 137 (“Each national Bureau shall immediately forward information concerning protected persons by themost rapid means to the Powers of whom the aforesaid persons are nationals, or to Powers in whose territory they
resided, through the intermediary of the Protecting Powers and likewise through the Central Agency provided for in
Article 140.”).
555

GC art. 137 (“The Bureaux shall also reply to all enquiries which may be received regarding protected persons.”).

556

Refer to § 10.5.2 (Protection Against Insults and Public Curiosity).

557

GC art. 137 (“Information Bureaux shall transmit information concerning a protected person unless its
transmission might be detrimental to the person concerned or to his or her relatives.”).
558

GC art. 137 (“Even in such a case, the information may not be withheld from the Central Agency which, upon
being notified of the circumstances, will take the necessary precautions indicated in Article 140.”).

742

the family members of such persons. 559
10.31.2.4 Collection of Personal Valuables Left by Protected Persons. Each
National Protected Person Information Bureau shall be responsible for collecting all personalvaluables left by protected persons mentioned in Article 136 of the GC, in particular those whohave been repatriated or released, or who have escaped or died. 560 The National Protected
Person Information Bureau shall forward these valuables to those concerned, either directly or, if
necessary, through the Central Information Agency for protected persons. 561 Personal valuables
may include wills, articles of sentimental value, or sums of money. 562 Such articles shall be sentby the National Protected Person Information Bureau in sealed packets, which shall beaccompanied by statements giving clear and full identity particulars of the person to whom thearticles belonged, and by a complete list of the contents of the parcel. 563 Detailed records shallbe maintained of the receipt and sending of all such valuables. 564
10.31.2.5 Special Section for the Identification of Children in Occupied Territory.
In occupation, a special section of the National Protected Person Information Bureau shall be
responsible for taking all necessary steps to identify children whose identity is in doubt. 565

559

GC COMMENTARY 531 (“This paragraph contains a provision not included in the Third Convention. It seeks toprotect civilians in enemy hands and particularly their families in their country of origin, against the authorities ofthat country if they should have any reason for particular animosity towards them. This exceptional provision isbased on the confused situations which occurred during the First World War. Civilians who have fled frompersecution generally have an interest in remaining unknown to the authorities of their former country. They must
therefore judge for themselves the expediency of notification to the authorities, even in the case of the forwarding of
information to members of their family.”).
560

GC art. 139 (“Each national Information Bureau shall, furthermore, be responsible for collecting all personalvaluables left by protected persons mentioned in Article 136, in particular those who have been repatriated orreleased, or who have escaped or died;”).
561

GC art. 139 (“[I]t shall forward the said valuables to those concerned, either direct, or, if necessary, through theCentral Agency.”).
562

GC COMMENTARY 538 (“The term ‘personal valuables’ should be understood to mean all the articles which
belonged to the person who is no longer there--whether he has been repatriated or has died--which are of any
commercial worth or sentimental value. It must always be remembered that an article of absolutely no intrinsic
worth may often have very great sentimental value for the next of kin of the deceased person. In practice, therefore,
almost all the articles found on the spot will be collected and forwarded. The corresponding provision of the Third
Convention (Article 122, paragraph 9) adds to the expression ‘personal valuables’ the words ‘including sums incurrencies other than that of the Detaining Power and documents of importance to the next of kin’. This expression
has not been retained in the Fourth Convention mainIy because it was considered that the term ‘valuables’ coveredsums of money and that since the value of papers could be judged only by the next of kin, they should be forwarded
to those persons, particularly if they seemed to be of a legal nature. It will be for the Detaining Power to decide
what foreign currency may be sent if any. Among the documents which should be carefully kept are wills, which
are particularly important.”).
563

GC art. 139 (“Such articles shall be sent by the Bureau in sealed packets which shall be accompanied bystatements giving clear and full identity particulars of the person to whom the articles belonged, and by a complete
list of the contents of the parcel.”).
564

GC art. 139 (“Detailed records shall be maintained of the receipt and despatch of all such valuables.”).

565

GC art. 50 (“A special section of the Bureau set up in accordance with Article 136 shall be responsible for taking
all necessary steps to identify children whose identity is in doubt.”).

743

Particulars of their parents or other near relatives should always be recorded if available. 566
10.31.3 Central Information Agency for Protected Persons. A Central Information
Agency for protected persons, in particular for internees, shall be created in a neutral country. 567
This agency may be the same as that provided for in Article 123 of the GPW. 568
The function of the Central Information Agency for protected persons shall be to collect
all information of the type set forth in Article 136 of the GC, which it may obtain throughofficial or private channels, and to transmit it as rapidly as possible to the countries of origin orof residence of the persons concerned, except in cases where such transmissions might be
detrimental to the persons whom this information concerns, or to their relatives. 569 The Central
Information Agency for protected persons shall receive from the parties to the conflict allreasonable facilities for effecting such transmissions. 570 Parties to the GC, and in particular
those States whose nationals benefit from the services of the Central Information Agency forprotected persons, are requested to give the Central Information Agency for protected persons
the financial aid it may require. 571
The provisions of the GC establishing the Central Information Agency for protected
persons do not restrict the humanitarian activities of the ICRC and of the relief societies
described in Article 142 of the GC. 572
The GC contemplates that the ICRC shall, if it deems necessary, propose to the Powers
concerned the organization of a Central Information Agency for protected persons. 573 In fact, therole of the Central Information Agency for protected persons has been performed in many
conflicts by the ICRC Central Tracing Agency, which has also performed this role for POWs. 574
566

GC art. 50 (“Particulars of their parents or other near relatives should always be recorded if available.”).

567

GC art. 140 (“A Central Information Agency for protected persons, in particular for internees, shall be created ina neutral country. The International Committee of the Red Cross shall, if it deems necessary, propose to the Powers
concerned the organization of such an Agency, which may be the same as that provided for in Article 123 of the
Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949.”).
568

Refer to § 9.31.3 (Central POW Information Agency).

569

GC art. 140 (“The function of the Agency shall be to collect all information of the type set forth in Article 136
which it may obtain through official or private channels and to transmit it as rapidly as possible to the countries oforigin or of residence of the persons concerned, except in cases where such transmissions might be detrimental tothe persons whom the said information concerns, or to their relatives.”).
570

GC art. 140 (“It shall receive from the Parties to the conflict all reasonable facilities for effecting suchtransmissions.”).
571

GC art. 140 (“The High Contracting Parties, and in particular those whose nationals benefit by the services of theCentral Agency, are requested to give the said Agency the financial aid it may require.”).
572

GC art. 140 (“The foregoing provisions shall in no way be interpreted as restricting the humanitarian activities of
the International Committee of the Red Cross and of the relief societies described in Article 142.”).
573

GC art. 140 (“The International Committee of the Red Cross shall, if it deems necessary, propose to the Powers
concerned the organization of such an Agency, which may be the same as that provided for in Article 123 of the
Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949.”).
574

Refer to § 9.31.3 (Central POW Information Agency).

744

10.31.4 U.S. Practice in Reporting to the ICRC Central Tracing Agency. For the UnitedStates, the functions of the National Protected Person Information Bureau have been performedby the same entity that performs the functions of the National POW Information Bureau: the
National Prisoner of War Information Center or the National Detainee Reporting Center. 575 This
organization has provided information to the ICRC Central Tracing Agency, acting as theCentral Information Agency for protected persons under the GC.
10.31.5 Exemption of National Protected Person Information Bureau and Central
Information Agency for Protected Persons From Certain Charges. The National Protected
Person Information Bureau and the Central Information Agency for protected persons shall enjoy
free postage for mail, all the exemptions provided for in Article 110 of the GC, 576 and, further, so
far as possible, exemption from telegraphic charges or, at least, greatly reduced rates. 577
The National Protected Person Information Bureau and the Central Information Agency
for protected persons shall also enjoy exemption from postal charges in respect of letter-post
items, postal parcels, and monetary articles that concern internees, which they send or receive,
either directly or as intermediaries, under the conditions laid down in the Universal Postal
Convention. 578 Such items exempt from postal charges should be marked appropriately. 579
10.32 ROLE OF THE PROTECTING POWER IN THE GC
The Protecting Power is an organ for ensuring implementation of the GC. The Protecting
Power has extensive duties under the GC. It transmits information between belligerents,
monitors compliance with the GC, and takes an active role in promoting the welfare of protected
persons.
10.32.1 Transmission of Information Between Belligerents. The Protecting Power helps
transmit information between belligerents, including:575

Refer to § 9.31.4 (U.S. Practice in Reporting to the ICRC Central Tracing Agency).

576

Refer to § 10.23.4 (Exemption From Postal and Shipping Charges for Shipments To and From Internees).

577

GC art. 141 (“The national Information Bureaux and the Central Information Agency shall enjoy free postage forall mail, likewise the exemptions provided for in Article 110, and further, so far as possible, exemption fromtelegraphic charges or, at least, greatly reduced rates.”).
578

Universal Postal Convention, art. 17(3), Dec. 14, 1989, 1687 UNTS 241, 252 (“The national Information
Bureaux and the Central Information Agencies mentioned above shall also enjoy exemption from postal charges inrespect of letter-post items, postal parcels and monetary articles which concern the persons referred to in paragraphs
1 and 2, which they send or receive, either direct or as intermediaries, under the conditions laid down in thoseparagraphs.”). Consider Letter Post Regulations, Article RL 111 to Article 7 of the Universal Postal Convention ofOct. 11, 2012, reprinted in INTERNATIONAL BUREAU OF THE UNIVERSAL POSTAL UNION, LETTER POST MANUAL,
page C.10, C.10-11 (Berne 2013, Update 2 – Jan. 2015) (“The following shall enjoy exemption from postal charges
within the meaning of article 7.2 of the Convention: … 1.3 the Information Bureaux provided for in article 136 of
the Geneva Convention of 12 August 1949 relative to the protection of civilian persons in time of war; 1.4 theCentral Information Agency provided for in article 140 of the latter Convention.”).
579

Refer to § 10.23.4.3 (Exemption From Postal Charges Under the Universal Postal Convention).

745

•

useful information regarding the geographic location of places of internment; 580•

accountability information concerning measures that States have taken with respect toprotected persons in their power; 581•

legal documents of internees; 582•

copies of the records of the death of internees; 583•

notification of measures taken by the Detaining Powers, immediately upon interning
protected persons, for executing the provisions of the GC that address relations between
internees and the exterior; 584 and•official translations of the GC and of laws and regulations that parties to the conflict haveadopted to implement it. 585

10.32.2 Monitoring or Inspecting Compliance With the GC. The Protecting Power
monitors or inspects the Detaining Power’s compliance with the GC, including by:•visiting places where protected persons are and interviewing them; 586•

receiving petitions and complaints from internees and periodic reports from the Internee
Committees; 587•

communicating with members of the Internee Committees and receiving the reasons forany refusal or dismissal of a member of an Internee Committee; 588•

receiving up-to-date lists of labor detachments so its representatives may visit them; 589•

inspecting records of disciplinary punishments maintained by the commandant of the580

Refer to § 10.11.1.2 (Sharing Information on the Location of Places of Internment).

581

Refer to § 10.31 (National Accounting for Protected Persons in Its Power).

582

Refer to § 10.24.2 (Legal Documents and Assistance).

583

Refer to § 10.34.2 (Death Certificates).

584

Refer to § 10.2.2.2 (Notification of Measures Taken for Implementing GC Provisions That Address Relations
Between Internees and the Exterior).
585

GC art. 145 (“The High Contracting Parties shall communicate to one another through the Swiss Federal Council
and, during hostilities, through the Protecting Powers, the official translations of the present Convention, as well as
the laws and regulations which they may adopt to ensure the application thereof.”).
586

Refer to § 10.33.1 (Access by Protecting Powers).

587

Refer to § 10.21.1 (Internee Right to Present Petitions and Complaints); § 10.21.3 (Periodic Reports by theInternee Committees).
588

Refer to § 10.22.1.1 (Approval of Internee Committee Members by the Detaining Authorities).

589

Refer to § 10.17.5 (Labor Detachments of Internees).

746

place of internment; 590•

receiving notice if military necessity should require that the quantity of individual parcels
or collective shipments be limited; 591•

receiving statements of internee accounts; 592 and•receiving communications and subsequent reports of death or serious injury of aninternee in certain cases. 593

10.32.3 Actively Working to Improve the Welfare of Protected Persons. In otherinstances, the GC contemplates that the Protecting Power will actively work to improve thewelfare of protected persons, such as by:•providing internees with allowances; 594•

setting up special means of transport to ensure the conveyance of relief shipments tointernees; 595 and•lending its good offices with a view towards settling disagreements as to application orinterpretation of the provisions of the GC between parties to the conflict. 596

10.33 ACCESS TO INTERNEES BY PROTECTING POWERS, ICRC, AND OTHER RELIEF
ORGANIZATIONS
10.33.1 Access by Protecting Powers. Representatives or delegates of the Protecting
Powers shall have permission to go to all places where protected persons are, particularly toplaces of internment, detention, and work. 597 They shall have access to all premises occupied byprotected persons and shall be able to interview the latter without witnesses, personally or
through an interpreter. 598 Such visits may not be prohibited except for reasons of imperative
military necessity, and then only as an exceptional and temporary measure. 599 Their duration
590

Refer to § 10.28.4 (Record of Disciplinary Punishments).

591

Refer to § 10.23.3 (Receipt of Individual and Collective Relief Shipments for Internees).

592

Refer to § 10.19.3.2 (Account Statement).

593

Refer to § 10.34.5 (Inquiries Into Death or Serious Injury of Internees in Certain Cases).

594

Refer to § 10.19.2 (Internee Allowances).

595

Refer to § 10.23.5 (Special Means of Transport of Shipments to Internees).

596

Refer to § 18.15.4 (Lending of Good Offices to Assist in Dispute Resolution).

597

GC art. 143 (“Representatives or delegates of the Protecting Powers shall have permission to go to all places
where protected persons are, particularly to places of internment, detention and work.”).
598

GC art. 143 (“They shall have access to all premises occupied by protected persons and shall be able to interview
the latter without witnesses, personally or through an interpreter.”).
599

GC art. 143 (“Such visits may not be prohibited except for reasons of imperative military necessity, and then only
as an exceptional and temporary measure.”).

747

and frequency must not be restricted. 600
Such representatives and delegates shall have full liberty to select the places they wish tovisit. 601
10.33.1.1 Participation of Compatriots of Internees in Visits. The Detaining or
Occupying Power, the Protecting Power, and, when the occasion arises, the Power of origin of
the persons to be visited, may agree that compatriots of the internees shall be permitted toparticipate in the visits. 602
10.33.1.2 ICRC Delegates Enjoying the Same Prerogatives of Access. The
delegates of the ICRC shall also enjoy the prerogatives as those of the representatives anddelegates of the Protecting Powers described in Article 143 of the GC. 603
The appointment of such delegates shall be submitted to the approval of the Powergoverning the territories where they will carry out their duties. 604
10.33.2 Access by Relief Societies and Other Organizations. Subject to the measures thatthe Detaining Powers may consider essential to ensure their security, or to meet any otherreasonable need, the representatives of religious organizations, relief societies, or any otherorganizations assisting the protected persons shall receive from these Powers all facilities forvisiting the protected persons; for distributing relief supplies and material from any source
intended for educational, recreational, or religious purposes; or for assisting them in organizing
their leisure time within the places of internment. 605 Such societies or organizations may beconstituted in occupied territory, in the territory of the Detaining Power, or in any other country,
or they may have an international character. 606
10.33.2.1 Limitations on the Number of Relief Organizations. The Detaining
Power may limit the number of societies and organizations whose delegates are allowed to carry
600

GC art. 143 (“Their duration and frequency shall not be restricted.”).

601

GC art. 143 (“Such representatives and delegates shall have full liberty to select the places they wish to visit.”).

602

GC art. 143 (“The Detaining or Occupying Power, the Protecting Power and when occasion arises the Power oforigin of the persons to be visited, may agree that compatriots of the internees shall be permitted to participate in thevisits.”).
603

GC art. 143 (“The delegates of the International Committee of the Red Cross shall also enjoy the above
prerogatives.”).
604

GC art. 143 (“The appointment of such delegates shall be submitted to the approval of the Power governing theterritories where they will carry out their duties.”).
605

GC art. 142 (“Subject to the measures which the Detaining Powers may consider essential to ensure their security
or to meet any other reasonable need, the representatives of religious organizations, relief societies, or any otherorganizations assisting the protected persons, shall receive from these Powers, for themselves or their duly
accredited agents, all facilities for visiting the protected persons, for distributing relief supplies and material fromany source, intended for educational, recreational or religious purposes, or for assisting them in organizing theirleisure time within the places of internment.”).
606

GC art. 142 (“Such societies or organizations may be constituted in the territory of the Detaining Power, or in any
other country, or they may have an international character.”).

748

out their activities in its territory and under its supervision, on condition, however, that such
limitation shall not hinder the supply of effective and adequate relief to all protected persons. 607
The special position of the ICRC in this field shall be recognized and respected at all times. 608
10.34 DEATH OF INTERNEES
10.34.1 Transmittal of Wills. The Detaining Power has an obligation to help internees
with their wills, such as by receiving them for safe-keeping. 609 In the event of the death of aninternee, his or her will shall be transmitted without delay to a person whom he or she has
previously designated. 610
10.34.2 Death Certificates. Deaths of internees shall be certified in every case by adoctor, and a death certificate shall be made out, showing the causes of death and the conditions
under which it occurred. 611
An official record of the death, duly registered, shall be drawn up in accordance with theprocedure relating thereto in force in the territory where the place of internment is situated, and aduly certified copy of such record shall be transmitted without delay to the Protecting Power andto the Central Information Agency for protected persons. 612
10.34.3 Burial or Cremation and Inurnment. The detaining authorities shall ensure thatinternees who die while interned are honorably buried, if possible according to the rites of thereligion to which they belonged. 613
Deceased internees shall be buried in individual graves unless unavoidable circumstances
require the use of collective graves. 614 For example, an epidemic or military operations may
require the Detaining Power to undertake collective burials in the interest of public health607

GC art. 142 (“The Detaining Power may limit the number of societies and organizations whose delegates areallowed to carry out their activities in its territory and under its supervision, on condition, however, that such
limitation shall not hinder the supply of effective and adequate relief to all protected persons.”).
608

GC art. 142 (“The special position of the International Committee of the Red Cross in this field shall berecognized and respected at all times.”).
609

Refer to § 10.24.2 (Legal Documents and Assistance).

610

GC art. 129 (“[I]n the event of the death of an internee his will shall be transmitted without delay to a person
whom he has previously designated.”).
611

GC art. 129 (“Deaths of internees shall be certified in every case by a doctor, and a death certificate shall bemade out, showing the causes of death and the conditions under which it occurred.”).
612

GC art. 129 (“An official record of the death, duly registered, shall be drawn up in accordance with the procedure
relating thereto in force in the territory where the place of internment is situated, and a duly certified copy of suchrecord shall be transmitted without delay to the Protecting Power as well as to the Central Agency referred to in
Article 140.”).
613

GC art. 130 (“The detaining authorities shall ensure that internees who die while interned are honourably buried,
if possible according to the rites of the religion to which they belonged, … .”).
614

GC art. 130 (“Deceased internees shall be buried in individual graves unless unavoidable circumstances require
the use of collective graves.”).

749

because individual graves are not possible due to lack of time and resources. 615
10.34.3.1 Cremation. Bodies of internees may be cremated only for imperative
reasons of hygiene, on account of the religion of the deceased, or in accordance with his or her
expressed wish to this effect. 616 In case of cremation, the fact shall be stated and the reasons
given in the death certificate of the deceased. 617 The ashes shall be retained for safe-keeping by
the detaining authorities and shall be transferred as soon as possible to the next of kin on theirrequest. 618
10.34.4 Maintenance and Records of Graves and Ashes. The detaining authorities shallensure that the graves of internees who die while interned are respected, properly maintained,
and marked in such a way that they can always be recognized. 619 Ideally, the markings on thegraves should contain at least the surname, first name, and date of birth of the dead person indetail and in a durable fashion. 620
As soon as circumstances permit, and not later than the close of hostilities, the Detaining
Power shall forward lists of graves of deceased internees to the Powers on whom the deceased
internees depended, through the National Protected Person Information Bureau. 621 Such lists
shall include all particulars necessary for the identification of the deceased internees, as well as
the exact location of their graves. 622
10.34.5 Inquiries Into Death or Serious Injury of Internees in Certain Cases. Every deathor serious injury of an internee, caused or suspected to have been caused by a sentry, another615

GC COMMENTARY 507 (“However desirable it may be to have individual graves properly marked, advocated as
the general practice by the Convention, the Article does allow of exceptions. These would be valid for reasons offorce majeure, during an epidemic, for example, if the death of an excessively large number of persons created adanger of infection which did not allow time for the digging of individual graves, or again if warlike operations
obliged the Detaining Power to retreat and before retreating and from lack of time it undertook collective burials in
the interests of public health.”).

616

GC art. 130 (“Bodies may be cremated only for imperative reasons of hygiene, on account of the religion of thedeceased or in accordance with his expressed wish to this effect.”).
617
GC art. 130 (“In case of cremation, the fact shall be stated and the reasons given in the death certificate of thedeceased.”).
618

GC art. 130 (“The ashes shall be retained for safe-keeping by the detaining authorities and shall be transferred assoon as possible to the next of kin on their request.”).
619

GC art. 130 (“The detaining authorities shall ensure … that their graves are respected, properly maintained, andmarked in such a way that they can always be recognized.”).
620

GC COMMENTARY 506-07 (“The Convention does not state how graves should be marked. The practice of
placing individual markings on the grave showing the surname, first name and date of birth of the dead person indetail and in a durable fashion, is, however, particularly to be recommended to belligerents wishing to fulfill their
obligations. The same applies to ashes in the case of cremation, as mentioned in the following paragraph.”).
621

GC art. 130 (“As soon as circumstances permit, and not later than the close of hostilities, the Detaining Powershall forward lists of graves of deceased internees to the Powers on whom the deceased internees depended, throughthe Information Bureaux provided for in Article 136.”).
622

GC art. 130 (“Such lists shall include all particulars necessary for the identification of the deceased internees, aswell as the exact location of their graves.”).

750

internee, or any other person, as well as any death the cause of which is unknown, shall be
immediately followed by an official inquiry by the Detaining Power. 623 A communication on
this subject shall be sent immediately to the Protecting Power. 624
Serious injury, in many cases, may be understood to mean a wound that requires inpatient treatment at a hospital or infirmary. 625
The evidence of any witnesses shall be taken, and a report including such evidence shallbe prepared and forwarded to the Protecting Power. 626
If the inquiry indicates the guilt of one or more persons, the Detaining Power shall takeall necessary steps to ensure the prosecution of the person or persons responsible. 627 For
example, depending on the circumstances, prosecutions could take place in the civil or military
courts of the Detaining Power or in accordance with the laws in force in the territory where they
happen to be interned. 628
10.35 RELEASE, RETURN, REPATRIATION OF INTERNEES AFTER THE CLOSE OF HOSTILITIES
10.35.1 Cessation of Internment After the Close of Hostilities. Internment shall cease assoon as possible after the close of hostilities. 629 The GC, however, does not preclude internment
after the close of hostilities. 630 For example, internment may be necessary during occupation
after hostilities have ended.
623

GC art. 131 (“Every death or serious injury of an internee, caused or suspected to have been caused by a sentry,
another internee or any other person, as well as any death the cause of which is unknown, shall be immediately
followed by an official enquiry by the Detaining Power.”).
624

GC art. 131 (“A communication on this subject shall be sent immediately to the Protecting Power.”).

625

GC COMMENTARY 509 (“What is meant by ‘serious injury’? During the discussion of the corresponding text
concerning prisoners of war, one delegation suggested that it should be made clear that what was referred to was awound as a result of which a prisoner required in-patient treatment in a hospital or an infirmary. This definition wasconsidered too rigid and was therefore not inserted in the Convention, but it could usefully be adopted in mostcases.”). Compare § 9.34.5 (Inquiries Into Death or Serious Injury of POWs in Certain Cases).

626

GC art. 131 (“The evidence of any witnesses shall be taken, and a report including such evidence shall be
prepared and forwarded to the said Protecting Power.”).
627

GC art. 131 (“If the enquiry indicates the guilt of one or more persons, the Detaining Power shall take allnecessary steps to ensure the prosecution of the person or persons responsible.”).
628

GC COMMENTARY 510 (“If the enquiry leads to responsibility being laid at the door of one or more persons,
whoever they may be, they must be prosecuted before a court of law. If they are nationals of the Detaining Power,that Power will not be able to exempt them from prosecution before its own civil or military courts. In the case ofinternees, they will be prosecuted in accordance with the laws in force in the teritory [sic] where they happen to be(Article 117, paragraph 1).”).

629

GC art. 133 (“Internment shall cease as soon as possible after the close of hostilities.”).

630

See II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 844 (“The only change effectedin the Stockholm text is the deletion of the words ‘and, in occupied territories, at the close of occupation’ in the firstparagraph. The reason for the deletion was that the close of occupation necessarily means that internment by the
Occupying Power comes to an end. The Committee did not accept the view that the retention of the remainder ofthe paragraph, i.e. the phrase ‘Internment shall cease as soon as possible after the close of hostilities’ bore theimplication that no person could be interned after the close of hostilities.”).

751

10.35.1.1 Close of Hostilities. The phrase “close of hostilities” should beunderstood in the same sense as the phrase “cessation of active hostilities” in the GPW. 631
10.35.1.2 Internees Subject to Penal Proceedings or Punishment. Internees in the
territory of a party to the conflict, against whom penal proceedings are pending for offenses not
exclusively subject to disciplinary penalties, may be detained until the close of such proceedings
and, if circumstances require, until the completion of the penalty. 632 The same shall apply tointernees who have been previously sentenced to a punishment depriving them of liberty. 633
10.35.2 Return to the Last Place of Residence or Repatriation. The Parties to the GC
shall endeavor, upon the close of hostilities or occupation, to ensure the return of all internees totheir last place of residence, or to facilitate their repatriation. 634
10.35.2.1 Internees Who Resist Repatriation. Internees who resist repatriationneed not be forcibly repatriated. 635 A similar rule applies to POWs. 636 U.S. policy provides thatno person shall be transferred to another State if it is more likely than not that the person would
be tortured in the receiving country. 637
10.35.3 Committees to Search for Dispersed Internees. By agreement between the
Detaining Power and the Powers concerned, committees may be set up after the close of
hostilities, or after the close of the occupation of territories, to search for dispersed internees. 638
10.35.4 Costs of Returning Internees. The Detaining Power shall bear the expense of
returning released internees to the places where they were residing when interned, or, if it tookthem into custody while they were in transit or on the high seas, the cost of completing their631

GC COMMENTARY 514-15 (“The expression ‘the close of hostilities’ should be taken to mean a state of fact rather
than the legal situation covered by laws or decrees fixing the date of cessation of hostilities. The similar provision
concerning prisoners of war speaks of ‘the cessation of active hostilities’ and the wording of the paragraph here
should be understood in the same sense.”). Refer to § 9.37.2 (Cessation of Active Hostilities).
632

GC art. 133 (“Internees in the territory of a Party to the conflict, against whom penal proceedings are pending for
offences not exclusively subject to disciplinary penalties, may be detained until the close of such proceedings and, if
circumstances require, until the completion of the penalty.”).
633

GC art. 133 (“The same shall apply to internees who have been previously sentenced to a punishment depriving
them of liberty.”).
634

GC art. 134 (“The High Contracting Parties shall endeavour, upon the close of hostilities or occupation, to ensure
the return of all internees to their last place of residence, or to facilitate their repatriation.”).
635

GC COMMENTARY 519 (“[I]t would be contrary to the spirit of the Convention if an internee could be forcibly
repatriated when he feared persecution in his country of origin for his political opinions or his religious beliefs. In
such a case he would become a refugee, obliged to seek a new domicile in a country different from the one in which
he is living.”).
636

Refer to § 9.37.4.2 (POWs Who Resist Repatriation).

637

Refer to § 8.14.4.1 (U.S. Policy Prohibiting Transfers in Cases in Which Detainees Would Likely Be Tortured).

638

GC art. 133 (“By agreement between the Detaining Power and the Powers concerned, committees may be set up
after the close of hostilities, or of the occupation of territories, to search for dispersed internees.”).

752

journey or of their return to their point of departure. 639
Where a Detaining Power refuses permission to reside in its territory to a released
internee who previously had his or her permanent domicile there, such Detaining Power shall
pay the cost of this internee’s repatriation. 640 If, however, the internee elects to return to his or
her country on his or her own responsibility or in obedience to the Government of the Power towhich he or she owes allegiance, the Detaining Power need not pay the expenses of his or her
journey beyond the point of his or her departure from its territory. 641
The Detaining Power need not pay the costs of repatriation of an internee who wasinterned at his or her own request. 642
If internees are transferred in accordance with Article 45 of the GC, the transferring andreceiving Powers shall agree on the portion of the above costs to be borne by each. 643
The foregoing discussion shall not prejudice such special agreements as may beconcluded between parties to the conflict concerning the exchange and repatriation of theirnationals in enemy hands. 644

639
GPW art. 135 (“The Detaining Power shall bear the expense of returning released internees to the places where
they were residing when interned, or, if it took them into custody while they were in transit or on the high seas, thecost of completing their journey or of their return to their point of departure.”).
640

GPW art. 135 (“Where a Detaining Power refuses permission to reside in its territory to a released internee who
previously had his permanent domicile therein, such Detaining Power shall pay the cost of the said internee’s
repatriation.”).
641

GPW art. 135 (“If, however, the internee elects to return to his country on his own responsibility or in obedienceto the Government of the Power to which he owes allegiance, the Detaining Power need not pay the expenses of his
journey beyond the point of his departure from its territory.”).

642

GPW art. 135 (“The Detaining Power need not pay the costs of repatriation of an internee who was interned at his
own request.”).
643

GPW art. 135 (“If internees are transferred in accordance with Article 45, the transferring and receiving Powers
shall agree on the portion of the above costs to be borne by each.”).
644

GC art. 135 (“The foregoing shall not prejudice such special agreements as may be concluded between Parties tothe conflict concerning the exchange and repatriation of their nationals in enemy hands.”).

753

XI – Military Occupation
Chapter Contents
11.1 Introduction
11.2 When Military Occupation Law Applies
11.3 End of Occupation and Duration of GC Obligations
11.4 Legal Position of the Occupying Power11.5 Duty of the Occupying Power to Ensure Public Order and Safety
11.6 Protection of the Population of an Occupied Territory
11.7 Authority of the Occupying Power Over Inhabitants
11.8 Administration of Occupied Territory
11.9 Local Law and Legislation
11.10 Ordinary Courts in Occupied Territory
11.11 Criminal Law in Occupied Territory
11.12 Movement of Persons in Occupied Territory
11.13 Protection of Children in Occupied Territory
11.14 Food and Medical Supplies for the Civilian Population
11.15 Public Health and Hygiene
11.16 Spiritual Assistance
11.17 Relief Efforts and Consignments
11.18 Enemy Property During Occupation
11.19 Protection of Cultural Property During Occupation
11.20 Labor of Protected Persons in Occupied Territory
11.21 Judges and Other Public Officials
11.22 Public Finances and Taxes
11.23 Other Economic Regulation of Occupied Territory
11.1 INTRODUCTION
This Chapter addresses military occupation. The GC provides specific rules for theinternment of protected persons in occupation, which are addressed in Chapter X.
Military occupation is a temporary measure for administering territory under the control
of invading forces, and involves a complicated, trilateral set of legal relations between the
Occupying Power, the temporarily ousted sovereign authority, and the inhabitants of occupied
territory. 1
The law of belligerent occupation seeks to account for both military and humanitarian
imperatives. The Occupying Power’s primary objective in conducting military occupation is tofurther the purpose of the war in which the occupying forces are engaged and to ensure themaintenance and security of those forces, but the Occupying Power is also bound to provide for1

Refer to § 11.4 (Legal Position of the Occupying Power).

754

the interests and welfare of the civilian population of the occupied territory. 2 The Occupying
Power has obligations related to the maintenance of public order and safety, and the protection ofcivilians and property in occupied territory. 3
11.1.1 Military Occupation – Notes on Terminology.
11.1.1.1 Military Occupation, Military Government, Belligerent Occupation, andMartial Law. The practice of conducting military occupation is very old, and the law of militaryoccupation has long been part of the law of war. 4 Military occupation is also called belligerent
occupation. The conduct of military occupation has also been characterized as an exercise of“military government” 5 or “martial law.” 6

2

GREENSPAN, THE MODERN LAW OF LAND WARFARE 213 (“In considering the law on military occupation the dual
nature of such an occupation must be borne in mind. Its primary objective is to further the purpose of the war inwhich the occupying forces are engaged and to ensure the maintenance and security of those forces; yet at the sametime the occupant is bound to provide for the interests and welfare of the civilian population of the occupied
territory.”).
3

Refer to § 11.5 (Duty of the Occupying Power to Ensure Public Order and Safety).

4See, e.g., American Ins. Co. v. 356 Bales of Cotton, 26 U.S. 511, 542 (1828) (Marshall, C.J.) (“The usage of theworld is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere militaryoccupation, until its fate shall be determined at the treaty of peace.”); Thirty Hogsheads of Sugar v. Boyle, 13 U.S.
191, 195 (1815) (Marshall, C.J.) (“Some doubt has been suggested whether Santa Cruz, while in the possession ofGreat Britain, could properly be considered as a British island. But for this doubt there can be no foundation.
Although acquisitions made during war are not considered as permanent until confirmed by treaty, yet to every
commercial and belligerent purpose, they are considered as a part of the domain of the conqueror, so long as heretains the possession and government of them. The island of Santa Cruz, after its capitulation, remained a British
island until it was restored to Denmark.”). See also WINTHROP, MILITARY LAW & PRECEDENTS 800-01 (“Instancesin our history of military government are presented in our Revolutionary war during the occupancy by the British of
Boston, New York and Philadelphia; at Castine, Maine, when taken and held by the British in 1814-15; and in theprovinces of Mexico in the course of the conquest of the same by our forces in 1846-7. It was however during thelate civil war, which, by reasons of its exceptional proportions, was assimilated to an international war, that Military
Government was more generally and variously exercised, and its nature more fully illustrated than at any previous
period of our history.”).
5

WINTHROP, MILITARY LAW & PRECEDENTS 799 (“By military government is meant that dominion exercised in war
by a belligerent power over territory of the enemy invaded and occupied by him and over the inhabitants thereof.
By most writers, prior to the appearance of the dissenting opinion of Chase, C.J., in Ex parte Milligan, this speciesof government was designated in general terms as ‘martial law,’ and thus was confused with or not properly
distinguished from the martial law proper exerted at home under circumstances of emergency, and yet to beconsidered.”); Ex parte Milligan, 71 U.S. 2, 141-42 (1866) (Chase, C.J., separate opinion) (“There are under theConstitution three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercisedin time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within states
or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection
within the limits of the United States, or during rebellion within the limits of states maintaining adhesion to the
National Government, when the public danger requires its exercise. The first of these may be called jurisdiction
under MILITARY LAW, and is found in acts of Congress prescribing rules and articles of war, or otherwise
providing for the government of the national forces; the second may be distinguished as MILITARYGOVERNMENT, superseding, as far as may be deemed expedient, the local law, and exercised by the militarycommander under the direction of the President, with the express or implied sanction of Congress; while the third
may be denominated MARTIAL LAW PROPER, and is called into action by Congress, or temporarily, when theaction of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of755This manual uses the terms “military occupation,” “belligerent occupation,” and“occupation” to refer to situations governed by the law of belligerent occupation.
11.1.1.2 Occupying Power, Occupant, and Occupying State. Treaties or otherlegal documents may refer to the State conducting the occupation as the “Occupying Power,”“Occupying State,” or “occupant.” This manual uses the term “Occupying Power” to refer to a
State conducting an occupation.
In some cases, multiple States may conduct an occupation together, and each State may
be considered an Occupying Power. 7
11.1.2 Military Occupation and Bodies of International Law.
11.1.2.1 Military Occupation and Other Law of War Rules. In general, the law of
war rules that are not specific to the occupation of enemy territory continue to apply to situations
that are addressed by those rules that may arise during occupation. For example, the rules for the
conduct of hostilities and the humane treatment of detainees apply also to combat operations anddetention operations, respectively, during occupation.
However, the fact of occupation triggers the application of additional rules specific to
occupation. 8
11.1.2.2 Occupation and the Hague IV Regulations. Articles 42 through 56 of theHague IV Regulations address military occupation.
When the GC and the Hague IV Regulations are both applicable, the provisions of the
GC regarding occupation supplement the provisions of the Hague IV Regulations regarding
occupation. 9
When the 1954 Hague Cultural Property Convention and the Hague IV Regulations areboth applicable, the provisions of the 1954 Hague Cultural Property Convention regarding
insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer
adequately secures public safety and private rights.”).
6

LIEBER CODE art. 1 (“A place, district, or country occupied by an enemy stands, in consequence of the occupation,
under the Martial Law of the invading or occupying army, whether any proclamation declaring Martial Law, or any
public warning to the inhabitants, has been issued or not. Martial Law is the immediate and direct effect andconsequence of occupation or conquest. The presence of a hostile army proclaims its Martial Law.”).

7

For example, Supplemental Brief of the United States, Apr. 22, 2005, United States of America ex rel. DR, Inc. v.
Custer Battles, LLC, 376 F. Supp. 2d 617 (E.D. Va. 2005), 2005 DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 228, 232 (“The United States and the United Kingdom, and other member states of the
Coalition were the occupying powers in Iraq under the laws and usages of war. The CPA was the administrative
device that the Coalition created under the laws and usages of war to perform civil government functions in liberated
Iraq during the brief period of occupation. As an active member of the Coalition, the United States played an
important role in, and had certain responsibilities for, the occupation, which it chose to fulfill through creation ofand participation in the CPA.”).
8

Refer to § 11.2 (When Military Occupation Law Applies).

9

Refer to § 19.16.5.2 (Relationship Between the GC and the 1899 Hague II and the 1907 Hague IV Conventions).

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occupation supplement the provisions of the Hague IV Regulations regarding occupation. 10
Although in some cases the Hague IV Regulations would not be applicable as a matter oftreaty law because belligerent States might not be Parties to Hague IV, many of the provisions in
Articles 42 through 56 of the Hague IV Regulations reflect customary international law. 11 For
example, Article 42 of the Hague IV Regulations, which provides a standard for when the law ofbelligerent occupation applies, is regarded as customary international law. 12
11.1.2.3 Occupation and the 1949 Geneva Conventions. Common Article 2 of
the 1949 Geneva Conventions provides that “[t]he Convention shall also apply to all cases ofpartial or total occupation of the territory of a High Contracting Party, even if the said occupation
meets with no armed resistance.” 13
Articles 47 through 78 of the GC specifically address occupied territories. 14 Other
provisions of the GC also apply to occupied territory. For example, Articles 27 through 34 of the
GC contain provisions common to the territories of parties to the conflict and to occupied
territories. 15
11.1.2.4 Occupation and the 1954 Hague Cultural Property Convention. The
1954 Hague Cultural Property Convention applies to all cases of partial or total occupation of theterritory of a High Contracting Party, even if this occupation meets with no armed resistance. 16
The 1954 Hague Cultural Property Convention and the Regulations for the Execution of
the 1954 Hague Cultural Property Convention also have provisions that explicitly address
occupation. 17
10Refer to § 19.17.1.1 (Relationship Between the 1954 Hague Cultural Property Convention and Certain 1899 and1907 Hague Conventions).
11

See, e.g., United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE
IMT 253-54 (“With respect to War Crimes, however, as has already been pointed out, the crimes defined by Article
6, Section (b), of the Charter were already recognized as War Crimes under international law. They were covered
by Articles 46, 50, 52, and 56 of the Hague Convention of 1907, and Articles 2, 3, 4, 46, and 51 of the Geneva
Convention of 1929. … But it is argued that the Hague Convention does not apply in this case, because of the‘general participation’ clause in Article 2 of the Hague Convention of 1907. … The rules of land warfare expressedin the Convention undoubtedly represented an advance over existing international law at the time of their adoption.
But the convention expressly stated that it was an attempt ‘to revise the general laws and customs of war’, which itthus recognized to be then existing, but by 1939 these rules laid down in the Convention were recognized by all
civilized nations, and were regarded as being declaratory of the laws and customs of war which are referred to in
Article 6 (b) of the Charter.”).
12

Refer to § 11.2.2 (Standard for Determining When Territory Is Considered Occupied).

13

GWS art. 2; GWS-SEA art. 2; GPW art. 2; GC art. 2.

14

Refer to § 19.16.5.1 (Application of Different Parts of the GC).

15

Refer to § 19.16.5.1 (Application of Different Parts of the GC).

16

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 18 (“The Convention shall also apply to all cases of partial
or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed
resistance.”).
17

Refer to § 11.19 (Protection of Cultural Property During Occupation).

757

11.1.2.5 Occupation and U.N. Security Council Resolutions. The U.N. Security
Council may call upon Occupying Powers to comply with existing international law. 18
Acting under the Charter of the United Nations, the U.N. Security Council may alsoestablish authorities or limitations that might interact with those otherwise applicable under
occupation law. 19 For example, a U.N. Security Council authorization may provide additional
authority for an Occupying Power to govern occupied territory. 20
In cases of conflict with obligations in other treaties or under customary internationallaw, such obligations provided by the U.N. Security Council may prevail. 21 Thus, such authority
may be used to take action that would not otherwise be permissible under the law of belligerent
occupation.
11.1.2.6 Occupation and the ICCPR and Other Human Rights Treaties. It has
been the U.S. view that the International Covenant on Civil and Political Rights (ICCPR) does
not create obligations for an Occupying Power with respect to occupied territory because acontracting State’s obligations under the ICCPR only extend to persons within its territory andsubject to its jurisdiction. 22 Although persons within occupied territory are subject to thejurisdiction of the Occupying Power for certain purposes, they are not within the Occupying
Power’s national territory. This limit to the scope of the ICCPR’s obligations was proposed by
the United States to preclude the creation of obligations for States with respect to territories that18

For example, U.N. SECURITY COUNCIL RESOLUTION 1483, U.N. Doc. S/RES/1483, ¶5 (May 22, 2003) (“Calls
upon all concerned to comply fully with their obligations under international law including in particular the Geneva
Conventions of 1949 and the Hague Regulations of 1907;”).

19

For example, John B. Bellinger, III, Legal Adviser, Department of State, United Nations Security Council
Resolutions and the Application of International Humanitarian Law, Human Rights and Refugee Law, Sept. 9, 2005,
2005 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 957-58 (“Prior to the Iraq intervention, lawyers
for the United States and its Coalition partners thoroughly analyzed a complex range of issues related to the
expected occupation of Iraq. This review involved developing an understanding of how the law of occupation—inparticular the Hague Regulations and Geneva Convention—would likely apply to Coalition activities. At the sametime, there already existed a broad and complex range of Chapter VII Security Council resolutions addressing a
number of issues, including Iraqi requirements to disarm, economic and arms embargos, and restrictions related tothe production and sale of Iraqi petroleum products. As the Coalition analyzed the principles of occupation law, wewere careful also to analyze the extent to which pre-existing Chapter VII resolutions included provisions that mightthemselves establish authorities or limitations that might interact with those otherwise applicable under occupation
law.”).
20

For example, U.N. SECURITY COUNCIL RESOLUTION 1483, U.N. Doc. S/RES/1483, ¶4 (May 22, 2003) (“Calls
upon the Authority, consistent with the Charter of the United Nations and other relevant international law, topromote the welfare of the Iraqi people through the effective administration of the territory, including in particular
working towards the restoration of conditions of security and stability and the creation of conditions in which the
Iraqi people can freely determine their own political future;”); Coalition Provisional Authority Regulation No. 1,§1(1) (May 16, 2003) (“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.”).

21

Refer to § 1.11.2.1 (U.N. Member State Obligations With Respect to U.N. Security Council Decisions); § 3.5.4(U.N. Security Council Decisions and Jus in Bello).
22

Refer to § 1.6.3.3 (International Covenant on Civil and Political Rights (ICCPR)).

758

they occupied, such as post-World War II Germany and Japan. 23
In addition, the law of belligerent occupation is specially crafted to address the situationof belligerent occupation. Thus, in cases of apparent conflict with other provisions of law thatare not intended to address the situation of belligerent occupation, there might be a presumptionthat such provisions would not conflict with occupation law, or that occupation law likely would
prevail when addressing the situation of belligerent occupation. 24
Other States, such as some coalition partners, may interpret their human rights treaty
obligations to create obligations for their military operations outside their home territory in thecontext of belligerent occupation. 25
Subject to the Occupying Power’s authority to change local law, 26 an occupied State’s
domestic law that has been enacted pursuant to its human rights treaty obligations or that meetsthe requirements of the occupied State’s human rights treaty obligations may continue to apply
during an occupation.
11.1.3 Application of Occupation Law to Situations Not Constituting Belligerent
Occupation. The law of belligerent occupation is only applicable as a matter of law when certain
conditions have been met. 27 The law of belligerent occupation generally does not apply to (1)mere invasion; (2) liberation of friendly territory; (3) non-international armed conflict; or (4)post-war situations (except for certain provisions of the GC). Nonetheless, it may be appropriate
to apply rules from the law of belligerent occupation in such situations.
11.1.3.1 Mere Invasion. Mere physical presence of a belligerent’s military forcesin the territory of its enemy alone does not constitute military occupation. Such presence might
not constitute an effective and firm possession of enemy territory, or the belligerent State might
23

Eleanor Roosevelt, Chairman, U.N. Economic and Social Council, Commission on Human Rights, Sixth Session,
Summary Record of the Hundred and Thirty-Eighth Meeting, U.N. Doc. E/CN.4/SR.138 ¶34 (Apr. 6, 1950) (“Thepurpose of the proposed addition was to make it clear that the draft Covenant would apply only to persons within the
territory and subject to the jurisdiction of contracting States. The United States was afraid that without such an
addition the draft Covenant might be construed as obliging the contracting States to enact legislation concerning
persons who, although outside its territory were technically within its jurisdiction for certain purposes. An
illustration would be the occupied territories of Germany, Austria and Japan: persons within those countries were
subject to the jurisdiction of the occupying States in certain respects, but were outside the scope of the legislation of
those States. Another illustration would be the case of leased territories: some countries leased certain territories
from others for limited purposes, and there might be questions of conflicting authority between the lessor nation andthe lessee nation.”). See also Eleanor Roosevelt, Chairman, U.N. Economic and Social Council, Commission on
Human Rights, Sixth Session, Summary Record of the Hundred and Ninety-Fourth Meeting, U.N. Doc.
E/CN.4/SR.194 ¶14 (May 16, 1950) (“That [insertion of language] would limit the application of the covenant only
to persons within its territory and subject to its jurisdiction. By this amendment the United States Government
would not, by ratifying the covenant, be assuming an obligation to ensure the rights recognized in it to the citizens ofcountries under United States occupation.”).
24

Refer to § 1.3.2 (The Law of War’s Relationship to Other Bodies of Law).

25

Refer to § 1.6.3.2 (Different Views on the Applicability of Human Rights Treaties).

26

Refer to § 11.9 (Local Law and Legislation).

27

Refer to § 11.2 (When Military Occupation Law Applies).

759

lack the intention to displace and substitute the enemy State’s authority with its own. 28
Guidance for the U.S. armed forces has sought, to the extent possible, to apply the rulesof the law of occupation as a matter of policy to areas through which U.S. forces are passing, andeven on the battlefield. 29
11.1.3.2 Liberation of Friendly Territory. The law of belligerent occupation does
not apply to the liberation of friendly territory. 30 Indeed, a belligerent occupation presupposesthat the Occupying Power is hostile in relation to the State whose territory is being occupied. 31
The administration of liberated territory may be conducted in accordance with a civil
affairs agreement between the co-belligerent States. 32 In the absence of such an agreement, amilitary government may be established in the area as a provisional and interim measure. 33 The
law of belligerent occupation may provide appropriate rules to apply by analogy, pending anagreement with the lawful government. 34
11.1.3.3 Occupation and Non-International Armed Conflict. The law of28

Refer to § 11.2.2.1 (“Actually Placed” – Effectiveness of Occupation); § 11.2.2.2 (“Under the Authority” –Suspension and Substitution of Governmental Authority).
29

1956 FM 27-10 (Change No. 1 1976) ¶352 (“b. Application of Law of Occupation. The rules set forth in thischapter apply of their own force only to belligerently occupied areas, but they should, as a matter of policy, beobserved as far as possible in areas through which troops are passing and even on the battlefield.”).

30

See FM 27-10 (Change No. 1 1976) ¶354 (“Civil affairs administration is that form of administration establishedin friendly territory whereby a foreign government pursuant to an agreement, expressed or implied, with thegovernment of the area concerned, may exercise certain authority normally the function of the local government.
Such administration is often established in areas which are freed from enemy occupation. It is normally required
when the government of the area concerned is unable or unwilling to assume full responsibility for its
administration. Territory subject to civil affairs administration is not considered to be occupied.”); Raymund T.
Yingling and Robert W. Ginnane, The Geneva Conventions of 1949, 46 AJIL 393, 417 (1953) (“While the Civilian
Convention contains no definition of ‘occupation,’ probably nothing could be added to the principle in Hague
Article 42 that ‘Territory is considered occupied when it is actually placed under the authority of the hostile army.
‘The convention will not apply in liberated territory of an allied country such as France in 1944 in relation to theUnited States and the United Kingdom.”).

31

Refer to § 11.2.2.3 (“Of the Hostile Army” – Belligerent Occupation Applies to Enemy Territory).

32

For example, Directives and Agreements in Civil Affairs in France, Aug. 25, 1944, reprinted in U.S. ARMY,JUDGE ADVOCATE GENERAL SCHOOL, CIVIL AFFAIRS MILITARY GOVERNMENT: SELECTED CASES AND MATERIALS
10 (1958) (“As a result of discussions between American, British, and French representatives, agreement has beenreached on the practical arrangements for civil affairs administration in Continental France.”).
33

1956 FM 27-10 (Change No. 1 1976) ¶354 (“If circumstances have precluded the conclusion of a civil affairs
agreement with the lawful government of allied territory recovered from enemy occupation or of other territory
liberated from the enemy, military government may be established in the area as a provisional and interim measure(see par. 12b and c). A civil affairs agreement should, however, be concluded with the lawful government at theearliest possible opportunity.”).
34

1958 UK MANUAL ¶499 note 3(b) (“Where it is not possible to conclude ‘Civil Affairs’ agreement before theliberation of allied territory, there may be an interregnum between invasion of such territory and the assumption of
authority on the part of the domestic civilian government. In such a situation the powers and restraints applicable toan occupant by international law ought to apply as a minimum standard until such time as a ‘Civil Affairs’
agreement can be concluded.”).

760

belligerent occupation does not address non-international armed conflict as such because abelligerent occupation presupposes that the Occupying Power is hostile in relation to the State
whose territory is being occupied. 35 A State’s military forces controlling its own territory would
not be regarded as conducting an occupation; similarly, foreign forces conducting operations
with the consent of the territorial State would also not be regarded as conducting an
occupation. 36
However, the law of belligerent occupation may be applicable to a non-internationalarmed conflict when a non-State party to the conflict has been recognized as a belligerent. 37 In
addition, a non-international armed conflict could be regarded as taking place in the context of,or alongside, an occupation. 38
11.1.3.4 Occupation and Post-War Situations. Before the GC was adopted andentered into force, the law of belligerent occupation was not applicable when a state of hostilities
had completely ceased. 39 The general inapplicability of the law of belligerent occupation to
post-war situations may be viewed as resulting from the law of belligerent occupation
presupposing that a hostile relationship exists between the invading force’s State and the State of
the occupied territory. 40 For example, if the State of the occupied territory unconditionallysurrendered and any international armed conflict completely ended, the law of belligerent
occupation was not applicable. 41
35

Refer to § 17.1.3.1 (Nationality and Territoriality Exclusions in the Law of International Armed Conflict).

36

Refer to § 11.2.2.3 (“Of the Hostile Army” – Belligerent Occupation Applies to Enemy Territory).

37

Refer to § 3.3.3.1 (Recognition by Outside States of a Rebel Faction as a Belligerent in a Civil War).

38

For example, Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq
Under the Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 36 (“TheUnited States is currently involved in two armed conflicts that are relevant to our analysis: the armed conflict withand occupation of Iraq, and the armed conflict with al Qaeda. In this Part we analyze how article 2 applies to eachconflict considered independently. This analysis is not conclusive as to how GC applies when the two conflicts
become intertwined, as they may when al Qaeda operatives carry on their armed conflict against the United States in
occupied Iraq. This latter issue is addressed in Part III, infra.”). Compare § 3.3.1.2 (Mixed Conflicts Between
Opposing States and Non-State Armed Groups).
39

For example, Forrest Hannaman, Chief of the Legal Service Division of the Office of the United States HighCommissioner for Germany, Letter to the Judge Advocate Division of EUCOM (Jan. 28, 1952), X WHITEMAN’SDIGEST 595-96 (“The position of the United States that the Hague Regulations do not apply to the post-capitulation
period of the present occupation of German [was noted by] the Military Governor in a First Indorsement to the
Commander-in-Chief, European Command, dated January 7, 1948 (AG 386.3LD), [which] stated inter alia: ‘… it
appears that the French authorities are interested in the policy of the United States in regard to the treatment ofproperty owned or used by the Wehrmacht and in the applicability of the Annex to Hague Convention IV of 1907 tothat question … With respect to the applicability at the present time of the Annex ... the Legal Division of thisHeadquarters has expressed the view ... that since the period of hostilities has ended, the provisions of Section III of
the Annex to Hague Convention IV of 1907 ‘do not literally apply to the present occupation of Germany’ …’”)
(amendments shown in Digest).
40

Refer to § 11.2.2.3 (“Of the Hostile Army” – Belligerent Occupation Applies to Enemy Territory).

41

For example, United States v. Altstoetter, et al., III TRIALS OF WAR CRIMINALS BEFORE THE NMT 960 (“It is thisfact of the complete disintegration of the government in Germany, followed by unconditional surrender and by
occupation of the territory, which explains and justifies the assumption and exercise of supreme governmental
power by the Allies. The same fact distinguishes the present occupation of Germany from the type of occupation

761

The GC, however, continues to apply in occupied territory until one year after the generalclose of military operations, and the Occupying Power is bound, for the duration of theoccupation, to the extent that such State exercises the functions of government in such territory,by the provisions of certain articles of the GC. 42 Additionally, protected persons under the GC
who remain in the custody of the Occupying Power following the end of occupation retain that
protection until their release, repatriation, or re-establishment. 43
In addition, it may be appropriate to adhere to the rules of belligerent occupation or toapply those rules by analogy even if not applicable as a matter of law in post-conflictsituations. 44 The rules of belligerent occupation may reflect fundamental safeguards applicable
to a wider range of situations. 45

which occurs when, in the course of actual warfare, an invading army enters and occupies the territory of anotherstate, whose government is still in existence and is in receipt of international recognition, and whose armies, withthose of its allies, are still in the field. In the latter case the occupying power is subject to the limitations imposed
upon it by the Hague Convention and by the laws and customs of war. In the former case (the occupation ofGermany) the Allied Powers were not subject to those limitations. By reason of the complete breakdown ofgovernment, industry, agriculture, and supply, they were under an imperative humanitarian duty of far wider scope
to reorganize government and industry and to foster local democratic governmental agencies throughout the
territory.”).
42

Refer to § 11.3.2 (Duration of GC Obligations in the Case of Occupied Territory).

43

Refer to § 10.3.4 (Commencement and Duration of Protected Person Status).

44

For example, Forrest Hannaman, Chief Legal Advice Division, Memorandum to Office of Economic Affairs –Finance Division on Revenues from Laender-Owned Property (Mar. 30, 1951), reprinted in XX SELECTEDOPINIONS JANUARY 1, 1951 – APRIL 30, 1951 OF OFFICE OF THE UNITED STATES HIGH COMMISSIONER FOR
GERMANY, OFFICE OF GENERAL COUNSEL, FRANKFURT, GERMANY, 57-58 (“The Hague Regulations were designed
to define the powers of a belligerent occupant of enemy territory during, or shortly after, hostilities. As such, theycannot be considered literally applicable to the situation in Germany today, and we cannot consider without
reflection that the occupying powers may exercise to their full extent powers which a belligerent occupant mightrightfully exercise under the Regulations. Insofar as there exists an accepted custom and practice of nations relevant
to our situation it is largely our own practice, since our present situation is without international precedent. In
determining any concrete problem of this nature it has consistently been the position of the legal advisors to
OMGUS and HICOG that whenever, in light of the actual problem and all of the relevant factors, the Hague
Regulations may be considered as expressing principles of international law which are pertinent to our situation,
those principles should be observed by us.”); Major G.B. Crook and Major W.G. Downey, Memorandum for the
Judge Advocate General, Present Applicability of Hague and Geneva Conventions in Germany, reprinted in Ernst
H. Feilchenfeld and Members of the Institute of World Polity, Status of Germany, 1 WORLD POLITY 182, 196 (1958)(“We conclude, therefore, that: a. The authority of the Allied Control Council and of the United States zonecommander in occupied Germany is not limited by the provisions of Section III of the Regulations annexed to theHague Convention IV (1907) and such Regulations have not been applicable to the occupation of Germany since 5
June 1945. … The general rules expressed in the Hague Regulations will be considered as guiding principles unlessand until specific U.S. or Allied occupation policies require deviation.”).
45

1956 FM 27-10 (Change No. 1 1976) ¶10 (“However, certain designated provisions of the Geneva Conventions of1949 (see GC, art. 6; par 249 herein) continue to be operative, notwithstanding the termination of any antecedenthostilities, during the continuance of a military occupation. Insofar as the unwritten law of war and the Hague
Regulations extend certain fundamental safeguards to the persons and property of the populations of occupied
territory, their protection continues until the termination of any occupation having its origin in the military
supremacy of the occupant, notwithstanding the fact the Geneva Convention relative to the Protection of Civilian
Persons may have ceased to be applicable.”).

762

11.2 WHEN MILITARY OCCUPATION LAW APPLIESThe law of military occupation applies when a military occupation exists in fact.
Even if the requirements of the law of belligerent occupation do not apply as a matter oflaw, general law of war principles and rules, such as those for the conduct of hostilities, continue
to apply. 46
11.2.1 Military Occupation as a Fact. Military occupation is a question of fact. 47 The
legal consequences arising from the fact of occupation (i.e., that this fact is the basis for bothrights and duties) illustrates how the law of war may be viewed as both permissive and restrictive
in nature. 48
The fact of occupation is the basis for the Occupying Power to exercise authority over theoccupied territory. 49 The fact of occupation, as a requirement for the exercise of authority over
the occupied territory, prevents a State from simply claiming the authorities of military
government over an enemy territory without actually controlling such territory. 50
The fact of occupation also imposes certain duties on the Occupying Power with respect
to occupied territory. 51 The fact of occupation, as a requirement for triggering the duties of an
Occupying Power, means that a State that does not, in fact, occupy an area, does not incur the
obligations of an Occupying Power.
Once an occupation exists in fact, regardless of whether the invasion was lawful or
46

Eritrea-Ethiopia Claims Commission, Partial Award – Western Front, Aerial Bombardment and Related Claims,
Eritrea’s Claims 1, 3, 5, 9-13, 14, 21, 25 & 26, ¶27 (Dec. 19, 2005) (“The Commission agrees that the Ethiopian
military presence was more transitory in most towns and villages on the Western Front than it was on the Central
Front, where the Commission found Ethiopia to be an occupying power. The Commission also recognizes that not
all of the obligations of Section III of Part III of Geneva Convention IV (the section that deals with occupied
territories) can reasonably be applied to an armed force anticipating combat and present in an area for only a few
days. Nevertheless, a State is obligated by the remainder of that Convention and by customary international
humanitarian law to take appropriate measures to protect enemy civilians and civilian property present within areas
under the control of its armed forces. Even in areas where combat is occurring, civilians and civilian objects cannot
lawfully be made objects of attack.”).
47

1956 FM 27-10 (Change No. 1 1976) ¶355 (“Military occupation is a question of fact.”).

48

Refer to § 1.3.3 (Restrictive and Permissive Character of the Law of War).

49

See, e.g., WINTHROP, MILITARY LAW & PRECEDENTS 799 (“The authority for military government is the fact ofoccupation. Not a mere temporary occupation of enemy’s country on the march, but a settled and established one.
Mere invasion, the presence of the hostile army in the country, is not sufficient. There must be a full possession, afirm holding, a government de facto.”); MacLeod v. United States, 229 U.S. 416, 425 (1913) (“There has been
considerable discussion in the cases and in works of authoritative writers upon the subject of what constitutes an
occupation which will give the right to exercise governmental authority. Such occupation is not merely invasion,
but is invasion plus possession of the enemy’s country for the purpose of holding it temporarily at least.”); UnitedStates v. Rice, 17 U.S. 246, 254 (1819) (Story, J.) (“By the conquest and military occupation of Castine, the enemy
acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place.”).

50Compare § 13.10.2.3 (Effectiveness of the Blockade).

51

Refer to § 11.5 (Duty of the Occupying Power to Ensure Public Order and Safety).

763

unlawful under jus ad bellum, the rights and duties of the Occupying Power and the populationin relation to each other apply. 52 This application of the law of belligerent occupation is an
example of how jus in bello rules and jus ad bellum rules generally operate independently of one
another. 53
11.2.2 Standard for Determining When Territory Is Considered Occupied. Territory is
considered occupied when it is actually placed under the authority of the hostile forces. 54
This standard for when the law of belligerent occupation applies is reflected in Article 42of the Hague IV Regulations and is regarded as customary international law. 55
11.2.2.1 “Actually Placed” – Effectiveness of Occupation. Military occupationmust be actual and effective; that is, the organized resistance must have been overcome, and the
Occupying Power must have taken measures to establish its authority. 56
It is sufficient that the occupying force can, within a reasonable time, send detachmentsof forces to enforce its authority within the occupied district. Military occupation does not
require the presence of military forces in every populated area, although the occupying force
must, inter alia, control the most important places. 57
The type of forces used to maintain the authority of the Occupying Power is not material.
52

See, e.g., United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1247(“At the outset, we desire to point out that international law makes no distinction between a lawful and an unlawful
occupant in dealing with the respective duties of occupant and population in occupied territory. There is noreciprocal connection between the manner of the military occupation of territory and the rights and duties of theoccupant and population to each other after the relationship has in fact been established. Whether the invasion was
lawful or criminal is not an important factor in the consideration of this subject.”).

53

Refer to § 3.5.2 (Jus in Bello and Jus ad Bellum Generally Operate Independently of One Another).

54

HAGUE IV REG. art. 42 (“Territory is considered occupied when it is actually placed under the authority of thehostile army. The occupation extends only to the territory where such authority has been established and can be
exercised.”).

55

See, e.g., Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under
the Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 37 footnote 1(“The Hague Regulations do not apply to the United States’ conflict with and occupation of Iraq as a matter oftreaty law because Iraq is not a party to the Hague Convention. … But as the citations in the text make clear, article
42(1) of the Hague Regulations, which provides that occupation begins ‘when [territory] is actually placed under theauthority of the hostile army,’ reflects customary international law.”); Armed Activities on the Territory of theCongo (Democratic Republic of the Congo v. Uganda), Judgment, 2005 I.C.J. 168, 229 (¶172) (“[U]nder customaryinternational law, as reflected in Article 42 of the Hague Regulations of 1907, territory is considered to be occupied
when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory
where such authority has been established and can be exercised … .”).
56

1956 FM 27-10 (Change No. 1 1976) ¶356 (“It follows from the definition that belligerent occupation must be
both actual and effective, that is, the organized resistance must have been overcome and the force in possession musthave taken measures to establish its authority.”).
57

Keely v. Sanders, 99 U.S. 441, 447 (1878) (“No conquering army occupies the entire territory conquered. Its
authority is established when it occupies and holds securely the most important places, and when there is no
opposing governmental authority within the territory. The inability of any other power to establish and maintain
governmental authority therein is the test.”).

764

For example, the occupation might be maintained by permanently based units or mobile forces,
either of which would be able to send detachments of forces to enforce the authority of the
Occupying Power within the occupied district. 58 However, air superiority alone would notconstitute an effective occupation.
Similarly, as long as the occupation is effective, there is no precise number of forces thatare considered necessary to constitute an effective occupation. The number of forces necessary
to maintain effective occupation will depend on various considerations, such as the disposition of
the inhabitants, the number and density of the population, the nature of the terrain, and similar
factors. 59
An occupation may be effective despite the existence of areas in the enemy State that are
temporarily controlled by enemy forces or pockets of resistance. For example, the fact that adefended location (such as a city or town) still controlled by enemy forces exists within an area
declared occupied by the Occupying Power does not render the occupation of the remainder of
the area invalid, provided that continued resistance in such place or defended zone does notrender the occupier unable to exercise control over the remainder of the occupied territory. 60
Similarly, an occupation may continue to be effective despite intermittent insurgent attacks or
temporary seizures of territory by resistance forces. 61
11.2.2.2 “Under the Authority” – Suspension and Substitution of Governmental
Authority. Occupation also requires the suspension of the territorial State’s authority and thesubstitution of the Occupying Power’s authority for the territorial State’s authority. 62
The territorial State must be rendered incapable of publicly exercising its authority in the
58

1956 FM 27-10 (Change No. 1 1976) ¶356 (“It is sufficient that the occupying force can, within a reasonable time,
send detachments of troops to make its authority felt within the occupied district. It is immaterial whether theauthority of the occupant is maintained by fixed garrisons or flying columns, whether by small or large forces, solong as the occupation is effective.”).
59

1956 FM 27-10 (Change No. 1 1976) ¶356 (“The number of troops necessary to maintain effective occupation
will depend on various considerations such as the disposition of the inhabitants, the number and density of the
population, the nature of the terrain, and similar factors. The mere existence of a fort or defended area within theoccupied district, provided the fort or defended area is under attack, does not render the occupation of the remainderof the district ineffective. Similarly, the mere existence of local resistance groups does not render the occupation
ineffective.”).
60

1958 UK MANUAL ¶502 (“The fact that there is a defended place or zone still in possession of the national forces
within an occupied district does not make the occupation of the remainder invalid, provided that such place ordefended zone is surrounded and effectively cut off from the rest of the occupied district.”).
61

United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1243 (“It isclear that the German armed forces were able to maintain control of Greece and Yugoslavia until they evacuatedthem in the fall of 1944. While it is true that the partisans were able to control sections of these countries at various
times, it is established that the Germans could at any time they desired assume physical control of any part of thecountry. The control of the resistance forces was temporary only and not such as would deprive the German armed
forces of its status of an occupant.”).
62

LIEBER CODE art. 3 (“Martial Law in a hostile country consists in the suspension, by the occupying military
authority, of the criminal and civil law, and of the domestic administration and government in the occupied place or
territory, and in the substitution of military rule and force for the same, as well as in the dictation of general laws, as
far as military necessity requires this suspension, substitution, or dictation.”).

765

territory, and the Occupying Power must substitute its authority for that of the territorial State. 63
Invading forces in possession of the territory must have taken measures to establish theirauthority. 64 For example, such measures may include establishing its own governmental
authority for that area and making regulations for the conduct of temporary government. 65 The
suspension and substitution of authority may take place with local authorities continuing toadminister territory subject to the paramount authority of the Occupying Power. 66 On the other
hand, routine measures necessary to provide for unit security (e.g., warning private persons notto threaten or interfere with military operations) would not necessarily constitute measures toestablish authority over enemy territory.
The substitution of authority by the Occupying Power may be shown by a proclamationof occupation, although such a proclamation is not required. 67
11.2.2.3 “Of the Hostile Army” – Belligerent Occupation Applies to Enemy
Territory. Occupation occurs when territory is actually placed under the authority of the hostilearmy. Thus, the existence of an occupation presupposes a hostile relationship between theinvading force’s State and the State of the occupied territory, although the occupation need not

63

1956 FM 27-10 (Change No. 1 1976) ¶355 (“Military occupation is a question of fact. It presupposes a hostileinvasion, resisted or unresisted, as a result of which the invader has rendered the invaded government incapable ofpublicly exercising its authority, and that the invader has successfully substituted its own authority for that of thelegitimate government in the territory invaded.”). See also Armed Activities on the Territory of the Congo(Democratic Republic of the Congo v. Uganda), Judgment, 2005 I.C.J. 165, 230 (¶¶173-74) (“In order to reach aconclusion as to whether a State, the military forces of which are present on the territory of another State as a resultof an intervention, is an ‘occupying Power’ in the meaning of the term as understood in jus in bello, the Court must
examine whether there is sufficient evidence to demonstrate that the said authority was in fact established andexercised by the intervening State in the areas in question. In the present case the Court will need to satisfy itself
that the Ugandan armed forces in the DRC were not only stationed in particular locations, but also that they had
substituted their own authority for that of the Congolese Government … . [T]he territorial limits of any zone ofoccupation by Uganda in the DRC cannot be determined by simply drawing a line connecting the geographicallocations where Ugandan troops were present as has been done on the sketch-map presented by the DRC (seeparagraphs 55 and 73 above).”).
64

GREENSPAN, THE MODERN LAW OF LAND WARFARE 213-14 (“An occupant sets up some form of administrationin the territory, an invader merely passing through it does not.”).

65

For example, MacLeod v. United States, 229 U.S. 416, 424-25 (1913) (“When the Spanish fleet was destroyed at
Manila, May 1, 1898, it became apparent that the Government of the United States might be required to take thenecessary steps to make provision for the government and control of such part of the Philippines as might come into
the military occupation of the forces of the United States. The right to thus occupy an enemy’s country andtemporarily provide for its government has been recognized by previous action of the executive authority andsanctioned by frequent decisions of this court. The local government being destroyed, the conqueror may set up its
own authority and make rules and regulations for the conduct of temporary government, and to that end may collecttaxes and duties to support the military authority and carry on operations incident to the occupation. Such was thecourse of the Government with respect to the territory acquired by conquest and afterwards ceded by the Mexican
Government to the United States.”).
66

Refer to § 11.8.2 (Continued Performance of Duties by Civil Servants and Other Officials of Local Governments).

67

Refer to § 11.2.4 (Proclamation of Occupation).

766

be met with armed resistance. 68
For example, the law of belligerent occupation would not apply to the use of militaryforces to control a State’s own territory, such as in cases of domestic emergency, insurrection, or
non-international armed conflict. 69
Similarly, the law of belligerent occupation would not apply to the liberation of friendly
territory that was previously occupied by the enemy. 70
The requirement of a hostile relationship between the invading force’s State and the Stateof the occupied territory also prevents the law of belligerent occupation from applying to postconflict situations (except for certain provisions of the GC). 71
11.2.3 Scope of Occupied Territory. The occupation extends only to the territory wheresuch authority has been established and can be exercised. 72
For example, a State may remain in control of part of its territory while the remainder of
its territory is under occupation. The 1949 Geneva Conventions apply in cases of partial or total
occupation of a State. 73
The end of occupation in one part of occupied territory does not end the occupation inother parts of the occupied territory where the Occupying Power maintains its authority.
11.2.4 Proclamation of Occupation. Due to the special relations established between thecivilian population of the occupied territory and the Occupying Power, the fact of militaryoccupation and the territory over which it extends should be made known to the citizens of theoccupied territory and to other States.
However, there is no specific legal requirement that the Occupying Power issue a
proclamation of military occupation. 74
68

GWS art. 2 (“The Convention shall also apply to all cases of partial or total occupation of the territory of a HighContracting Party, even if the said occupation meets with no armed resistance.”); GWS-SEA art. 2 (same); GPW art.
2 (same); GC art. 2 (same).
69

Refer to § 11.1.3.3 (Occupation and Non-International Armed Conflict).

70

Refer to § 11.1.3.2 (Liberation of Friendly Territory).

71

Refer to § 11.1.3.4 (Occupation and Post-War Situations).

72

HAGUE IV REG. art. 42 (“Territory is considered occupied when it is actually placed under the authority of thehostile army. The occupation extends only to the territory where such authority has been established and can be
exercised.”).

73

Refer to § 11.1.2.3 (Occupation and the 1949 Geneva Conventions).

74

1956 FM 27-10 (Change No. 1 1976) ¶357 (“In a strict legal sense no proclamation of military occupation isnecessary. However, on account of the special relations established between the inhabitants of the occupied territory
and the occupant by virtue of the presence of occupying forces, the fact of military occupation, with the extent ofterritory affected, should be made known. The practice of the United States is to make this fact known by
proclamation.”); 1914 RULES OF LAND WARFARE ¶292 (“In a strict legal sense no proclamation of militaryoccupation is necessary. On account of the special relations established between the inhabitants of the occupied

767

The question of whether territory is occupied does not depend upon the issuance of any
particular proclamation or other instrument. Territory may be occupied even though noproclamation of occupation has been issued. Conversely, the issuance of proclamation ofoccupation does not empower a State with the rights of an Occupying Power if it does notcontrol such territory in fact.
A proclamation may help fix the date of the beginning of the occupation. 75 The
proclamation may also advise inhabitants of occupied territory of the rules with which they mustcomply. 76 In particular, the proclamation may be used to advise inhabitants of changes to law,
including penal law. 77
The general practice of the United States has been to make the fact of occupation knownby proclamation or similar notice. 78 In addition to giving notice to the inhabitants of occupied
territory and the occupant, by virtue of the presence of the invading force, the fact of military occupation, with theextent of terrritorry [sic] affected by the same, should be made known. The practice in this country is to make thisfact known by proclamation.”); LIEBER CODE art. 1 (“A place, district, or country occupied by an enemy stands, inconsequence of the occupation, under the Martial Law of the invading or occupying army, whether any
proclamation declaring Martial Law, or any public warning to the inhabitants, has been issued or not. Martial Law
is the immediate and direct effect and consequence of occupation or conquest. The presence of a hostile army
proclaims its Martial Law.”).
75

For example, Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq
Under the Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 37(“Applying this standard, the United States became an occupying power no later than April 16, 2003, the date on
which General Tommy Franks announced the creation of the ‘Coalition Provisional Authority to exercise powers ofgovernment temporarily, and as necessary, especially to provide security, to allow the delivery of humanitarian aid
and to eliminate weapons of mass destruction.’ See Tommy R. Franks, Freedom Message to the Iraqi People (Apr.
16, 2003)”); The Venice, 69 U.S. 258, 276 (1865) (“The transports conveying the troops under the command ofMajor-General Butler, commanding the Department of the Gulf, arrived on the 1st of May, and the actual
occupation of the city was begun. There was no armed resistance, but abundant manifestations of hostile spirit andtemper both by the people and the authorities. The landing of the troops was completed on the 2d of May, and on
the 6th a proclamation of General Butler, which had been prepared and dated on the 1st, and the next day printed bysome soldiers, in an office seized for the purpose, was published in the newspapers of the city. Some copies of the
proclamation had been previously distributed to individuals, but it was not made known to the population generally
until thus published. There was no hostile demonstration, and no disturbance afterwards; and we think that the
military occupation of the city of New Orleans may be considered as substantially complete from the date of thispublication; and that all the rights and obligations resulting from such occupation, or from the terms of the
proclamation, may be properly regarded as existing from that time. This proclamation declared the city to be undermartial law, and announced the principles by which the commanding general would be guided in its
administration.”).
76

For example, 1958 UK MANUAL ¶504 note 1 (“The practice in this matter in past wars appears to have been
variable. Frequently the inhabitants were only warned to behave peaceably, not to communicate with the enemy,
and to comply with requisitions; as for instance when the British troops entered France in 1813 and 1815. In 1870,
in France, the Germans generally, but not always, proclaimed military jurisdiction directly[;] they took possession ofa locality, by posting a notice which gave a list of offences against the troops for which the penalty of death would
be inflicted.”).

77

Refer to § 11.9.3 (Procedural Obligation – Notification to the Population of Changes in Law); § 11.11.2.1(Publication of Penal Provisions Before Coming Into Force).
78
For example, Coalition Provisional Authority Regulation No. 1, §1(1) (May 16, 2003) (“The CPA shall exercise
powers of government temporarily in order to provide for the effective administration of Iraq during the period oftransitional administration … .”).

768

territory, notice may be given to other governments. 79 In some cases, the U.N. Security Council
has recognized the fact of occupation. 80
11.3 END OF OCCUPATION AND DURATION OF GC OBLIGATIONSThe status of belligerent occupation ends when the conditions for its application are nolonger met. Certain GC obligations with respect to occupied territory continue for the durationof the occupation after the general close of military operations.
11.3.1 End of Occupation. Belligerent occupation ceases when the conditions for its
application are no longer met. 81 In particular, as discussed below, the status of belligerent
occupation ceases when the invader no longer factually governs the occupied territory or when ahostile relationship no longer exists between the State of the occupied territory and the
Occupying Power. 82
Belligerent occupation ends when the Occupying Power no longer has effectively placed
the occupied territory under its control. 83 For example, an uprising by the local population may
prevent the Occupying Power from actually enforcing its authority over occupied territory.
Similarly, the Occupying Power’s expulsion or complete withdrawal from the territory would
also suffice because the former Occupying Power generally would not be able to control
sufficiently the occupied territory.
Belligerent occupation also may end when a hostile relationship no longer exists between
the Occupying Power and the State of the occupied territory (although, as discussed in thefollowing subsection, certain GC obligations may continue to apply). 84 For example, if a new,79

For example, John D. Negroponte & Jeremy Greenstock, Letter Dated 8 May 2003 from the Permanent
Representatives of the United Kingdom of Great Britain and Northern Ireland and the United States of America to
the United Nations Addressed to the President of the Security Council, U.N. Doc. S/2003/538 (“the United States,
the United Kingdom, and Coalition partners, acting under existing command and control arrangements through theCommander of Coalition Forces, have created the Coalition Provisional Authority, which includes the Office ofReconstruction and Humanitarian Assistance, to exercise the powers of government temporarily, and, as necessary,
especially to provide security, to allow the delivery of humanitarian aid, and to eliminate weapons of mass
destruction. The United States, the United Kingdom and Coalition partners, working through the Coalition
Provisional Authority, shall inter alia, provide for security in and for the provisional administration of Iraq … .”).
80

For example, U.N. SECURITY COUNCIL RESOLUTION 1483, U.N. Doc. S/RES/1483, 2 (May 22, 2003) (“Noting theletter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdomof Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recognizing thespecific authorities, responsibilities, and obligations under applicable international law of these states as occupying
powers under unified command (the ‘Authority’),”); U.N. SECURITY COUNCIL RESOLUTION 661, U.N. Doc.
S/RES/661 (1990) (Aug. 6, 1990) (“Determined to bring the invasion and occupation of Kuwait by Iraq to an end
and to restore the sovereignty, independence and territorial integrity of Kuwait,”).
81

Refer to § 11.2.2 (Standard for Determining When Territory Is Considered Occupied).

82

WINTHROP, MILITARY LAW & PRECEDENTS 801 (“The status of military government continues from the inceptionof the actual occupation till the invader is expelled by force of arms, or himself abandons the conquest, or till, undera treaty of peace, the country is restored to its original allegiance or becomes incorporated with the domain of theprevailing belligerent.”).
83

Refer to § 11.2.2.1 (“Actually Placed” – Effectiveness of Occupation).

84

Refer to § 11.2.2.3 (“Of the Hostile Army” – Belligerent Occupation Applies to Enemy Territory).

769

independent government of the previously occupied territory assumes control of the territory andconsents to the presence of the previously occupying forces, then such a situation would nolonger be considered a belligerent occupation. Similarly, if a peace treaty legitimately transfers
the territory to the sovereignty of the Occupying Power, then the Occupying Power would nolonger be characterized as such. However, an Occupying Power is not permitted, under the lawof belligerent occupation, to annex occupied territory. 85
11.3.2 Duration of GC Obligations in the Case of Occupied Territory. In the hometerritory of parties to the conflict, the application of the GC shall cease on the general close of
military operations. 86
In the case of occupied territory, the application of the GC shall cease one year after thegeneral close of military operations; however, the Occupying Power shall be bound, for theduration of the occupation, to the extent that such State exercises the functions of government insuch territory, by the provisions of the following Articles of the GC:•

1 through 12 (general provisions and common articles, e.g., the Protecting Power
continues to function, and the derogation for security reasons continues to apply);•

27, 29 through 34 (humane treatment);•

47 (preserves rights as against change by annexation or arrangement with the local
authorities so long as occupation lasts);•

49 (transfers, evacuation, and deportation);•

51, 52 (prohibitions against certain compulsory service and protection of workers);•

53 (respect for property);•

59, 61 through 63 (facilitating relief programs);•

64 through 77 (criminal proceedings); and•143 (access by Protecting Powers and the ICRC). 87

The one-year time limit for the cessation of the application of the GC (apart from theprovisions that continue to apply to the extent that the Occupying Power exercises the functionsof government in occupied territory) was proposed to account for situations like those of85

Refer to § 11.4.2 (Limitations on the Power of the Occupying Power Stemming From Its Lack of Sovereignty
Over Occupied Territory).
86

Refer to § 10.3.4 (Commencement and Duration of Protected Person Status).

87

GC art. 6 (“In the case of occupied territory, the application of the present Convention shall cease one year after
the general close of military operations; however, the Occupying Power shall be bound, for the duration of theoccupation, to the extent that such Power exercises the functions of government in such territory, by the provisionsof the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143.”).

770

Germany and Japan after World War II. 88 AP I provides that the 1949 Geneva Conventions and
AP I shall cease to apply, in the case of occupied territories, on the termination of theoccupation; 89 coalition partners that are Occupying Powers and Parties to AP I would be boundby this rule.
In any case, individuals entitled to GC protection who remain in the custody of the
Occupying Power following the end of occupation retain that protection until their release,
repatriation, or re-establishment. 90 In addition, it may be appropriate following the end ofoccupation to continue to apply by analogy certain rules from the law of belligerent occupation,even if such rules do not apply as a matter of law. 91
11.4 LEGAL POSITION OF THE OCCUPYING POWER
Military occupation of enemy territory involves a complicated, trilateral set of legal
relations between the Occupying Power, the temporarily ousted sovereign authority, and the
inhabitants of occupied territory. 92 The fact of occupation gives the Occupying Power the rightto govern enemy territory temporarily, but does not transfer sovereignty over occupied territory
88

II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 623 (“Mr. CLATTENBURG (UnitedStates of America) said that his Delegation would propose an amendment to Article 4 to provide that the Civilians
Convention should cease to apply not earlier than one year after the termination of hostilities. It would be noted that
the Convention did not define the terms ‘occupied territory’ or ‘military occupation’. It was the view of the UnitedStates Delegation that the obligations imposed by the Convention on an Occupying Power should be applicable tothe period of hostilities and to the period of disorganization following on the hostilities; these obligations would vary
according to the nature and duration of the occupation. Experience had shown that an Occupying Power did, in fact,
exercise the majority of the governmental functions in occupied territory. A prolonged military occupation was,however, also characterized by a progressive return of governmental responsibility to local authorities. The
Occupying Power should be bound by the obligations of the Convention only during such time as the institutions of
the occupied territory were unable to provide for the needs of the inhabitants. The ultimate solution of suchproblems as revictualling, sanitation and war damage was not the responsibility of the Occupying Power. He quoted
the case of the Allied occupation of Germany and Japan to show that the responsibility of the Occupying Powers forthe welfare of the local populations was far less at present than during the period immediately following
hostilities.”).
89

AP I art. 3 (“Without prejudice to the provisions which are applicable at all times: (a) The Conventions and thisProtocol shall apply from the beginning of any situation referred to in Article 1 of this Protocol; (b) The applicationof the Conventions and of this Protocol shall cease, in the territory of Parties to the conflict, on the general close of
military operations and, in the case of occupied territories, on the termination of the occupation, except, in either
circumstance, for those persons whose final release, repatriation or reestablishment takes place thereafter. These
persons shall continue to benefit from the relevant provisions of the Conventions and of this Protocol until their final
release, repatriation or re-establishment.”).
90

Refer to § 10.3.4 (Commencement and Duration of Protected Person Status).

91

Refer to § 11.1.3.4 (Occupation and Post-War Situations).

92

JULIUS STONE, LEGAL CONTROLS ON INTERNATIONAL CONFLICT 694 (1954) (“Whether belligerent occupation has
been established depends not merely on the will of the belligerent, but whether his actual control satisfies thestandards of range and stability laid down by international law. If it does not, he is a mere invader enjoying acomparatively narrow legal authority. If it does, international law attributes to him legal powers which merely as abelligerent he does not have, touching almost all aspects of the government of the territory and the lives of its
inhabitants. Since, moreover, the ousted sovereign still retains all the residue of legal authority not attributed to the
Occupant, it is apparent that belligerent occupation involves at its core a complicated trilateral set of legal relations
between the Occupant, the temporarily ousted sovereign and the inhabitants.”).

771

to the Occupying Power.
11.4.1 Right of the Occupying Power to Govern the Enemy Territory Temporarily. The
right to govern the territory of the enemy during its military occupation is one of the incidents ofwar. 93 By the fact of occupation (i.e., the Occupying Power’s established power over occupied
territory), the Occupying Power is conferred the authority to exercise some of the rights ofsovereignty. 94 The exercise of these sovereign rights also results from the necessity ofmaintaining law and order, indispensable both to the inhabitants and to the occupying force, andthe failure or inability of the legitimate government to exercise its functions, or the undesirabilityof allowing it to do so. 95
11.4.2 Limitations on the Power of the Occupying Power Stemming From Its Lack ofSovereignty Over Occupied Territory. Belligerent occupation in a foreign war, being based upon
the possession of enemy territory, necessarily implies that the sovereignty of the occupied
territory is not vested in the Occupying Power. 96 Occupation is essentially provisional. 97
Because sovereignty is not vested in the Occupying Power, the fact of militaryoccupation does not authorize the Occupying Power to take certain actions. For example, theOccupying Power is not authorized by the fact of belligerent occupation to annex occupied
territory or to create a new State. 98 In addition, the Occupying Power may not compel the93

Coleman v. Tennessee, 97 U.S. 509, 517 (1879) (“The doctrine of international law on the effect of militaryoccupation of enemy's territory upon its former laws is well established. Though the late war was not between
independent nations, but between different portions of the same nation, yet having taken the proportions of aterritorial war, the insurgents having become formidable enough to be recognized as belligerents, the same doctrine
must be held to apply. The right to govern the territory of the enemy during its military occupation is one of theincidents of war, being a consequence of its acquisition; and the character and form of the government to beestablished depend entirely upon the laws of the conquering State or the orders of its military commander.”).
94

1956 FM 27-10 (Change No. 1 1976) ¶358 (“Being an incident of war, military occupation confers upon theinvading force the means of exercising control for the period of occupation. It does not transfer the sovereignty tothe occupant, but simply the authority or power to exercise some of the rights of sovereignty. The exercise of theserights results from the established power of the occupant and from the necessity of maintaining law and order,
indispensable both to the inhabitants and to the occupying force.”).
95

1956 FM 27-10 (Change No. 1 1976) ¶362 (“Military government is the form of administration by which an
occupying power exercises governmental authority over occupied territory. The necessity for such government
arises from the failure or inability of the legitimate government to exercise its functions on account of the militaryoccupation, or the undesirability of allowing it to do so.”).
96

1956 FM 27-10 (Change No. 1 1976) ¶353 (“Belligerent occupation in a foreign war, being based upon thepossession of enemy territory, necessarily implies that the sovereignty of the occupied territory is not vested in theoccupying power. Occupation is essentially provisional.”).
97

See, e.g., VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 31 (“The consensus of the opinions of writers on
international law is that the legitimate government of the territory retains its sovereignty but that the latter issuspended during the period of belligerent occupation.”); EYAL BENVENISTI, THE INTERNATIONAL LAW OFOCCUPATION 6 (2004) (“The power exercising effective control within another’s sovereign territory has only
temporary managerial powers, for the period until a peaceful solution is reached. During that limited period, theoccupant administers the territory on behalf of the sovereign. Thus the occupant’s status is conceived to be that of atrustee.”).
98

1956 FM 27-10 (Change No. 1 1976) ¶358 (“It is therefore unlawful for a belligerent occupant to annex occupied
territory or to create a new State therein while hostilities are still in progress.”). Refer to § 11.6.3 (Occupying
Power’s Duty to Respect the Rights of Protected Persons Secured by the GC).

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inhabitants of occupied territory to become its nationals or otherwise to swear allegiance to it. 99
Similarly, in view of the provisional nature of belligerent occupation, the authority of the
Occupying Power under occupation law has been interpreted as being subject to limitations on
the ability of the Occupying Power to alter institutions of government permanently or change theconstitution of a country. 100
11.5 DUTY OF THE OCCUPYING POWER TO ENSURE PUBLIC ORDER AND SAFETY
The authority of the legitimate power having in fact passed into the hands of the
Occupying Power, the latter shall take all the measures in its power to restore, and ensure, as far
as possible, public order and safety, while respecting, unless absolutely prevented, the laws inforce in the country. 101 This principle has been recognized as customary international law. 102
The Occupying Power has a general duty to maintain public order and to provide for the99

Refer to § 11.6.2.1 (Prohibition on Compelling Inhabitants of Occupied Territory to Swear Allegiance to the
Hostile State).
100

John B. Bellinger, III, Legal Adviser, Department of State, United Nations Security Council Resolutions and theApplication of International Humanitarian Law, Human Rights and Refugee Law, Sept. 9, 2005, 2005 DIGEST OF
UNITED STATES PRACTICE IN INTERNATIONAL LAW 958-59 (“Some commentators take the position that occupation
law establishes limitations on the ability of the occupying power to alter institutions of government permanently orchange the constitution of a country.”). See also 2004 UK MANUAL ¶11.25.1 (“Since the occupying power has aduty to look after the welfare of the inhabitants, regulations, for example, fixing prices and securing the equitable
distribution of food and other commodities, are permissible. The occupying power should make no more changes tothe law than are absolutely necessary, particularly where the occupied territory already has an adequate legal
system.”); 2001 CANADIAN MANUAL ¶1205(1) (“During occupation by the enemy, the sovereignty of the legitimate
government continues to exist but it is temporarily latent. The powers of the occupant are of a provisional natureand it should only take measures, which are necessary for the purposes of the armed conflict, the maintenance oforder and safety and the proper administration of the occupied territory. Generally speaking, the occupant is notentitled to alter the existing form of government, to upset the constitution and domestic laws of the occupied
territory, or to set aside the rights of the inhabitants.”); JULIUS STONE, LEGAL CONTROLS OF INTERNATIONAL
CONFLICT 698 (1954) (“The limits on the legislative and regulatory power are as vague as the authority is general.
The Occupant’s authority is ‘military authority’. Clearly this is not full sovereignty, but equally clearly it extends
under the regulations to civil matters. His authority, of course, is limited like all his other powers to the occupied
territory, under Article 42, paragraph 2; and by Article 43 the Occupant must respect the laws in force unless‘absolutely prevented’. But this last limitation has never been taken literally; and unless it is so taken, theboundaries of the Occupant’s legislative power are still to be drawn. The most widely approved line of distinction isthat the Occupant, in view of his merely provisional position, cannot make permanent changes in regard to
fundamental institutions, for instance, change a republic into a monarchy. It becomes, however, increasingly
difficult to say with confidence what is a fundamental institution.”).
101

HAGUE IV REG. art. 43 (“The authority of the legitimate power having in fact passed into the hands of theoccupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order andsafety, while respecting, unless absolutely prevented, the laws in force in the country.”).
102

Opinion on the Legality of the Issuance of AMG (Allied Military Government) Currency in Sicily, Sept. 23, 1943,
reprinted in Occupation Currency Transactions: Hearings Before the Committees on Appropriations Armed
Services and Banking and Currency, U.S. Senate, 80th Congress, First Session, 73, 75 (Jun. 17-18, 1947) (“TheHague Convention clearly enunciated the principle that the laws applicable in an occupied territory remain in effectduring the occupation, subject to change by the military authorities within the limitations of the Convention. Article
43 provides: … This declaration of the Hague Convention amounts only to a reaffirmation of the recognizedinternational law prior to that time.”).

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preservation of rights of the inhabitants, including rights to their private property. 103
11.5.1 Authority Conferred by the Occupying Power’s Duty to Ensure Public Order and
Safety. The Occupying Power’s duty to take all the measures in its power to restore and ensure,as far as possible, public order and safety also provides it authority take such actions. For
example, the Occupying Power may enact provisions to maintain the orderly government of theterritory. 104
11.5.2 Duty to Respect, Unless Absolutely Prevented, the Laws in Force in the Country.
The duty to respect, unless absolutely prevented, the laws in force in the country prohibits the
Occupying Power from arbitrarily exercising its authority to suspend, repeal, or change themunicipal law applicable to occupied territory. 105
The duty to respect, unless absolutely prevented, the laws in force in the country has beeninterpreted not to apply to local administrative laws, such as regulations, executive orders,ordinances, and decrees. 106
11.6 PROTECTION OF THE POPULATION OF AN OCCUPIED TERRITORY
Under the law of belligerent occupation, the Occupying Power has certain duties withrespect to the population of an occupied territory, including protected persons under the GC.
11.6.1 General Protections, Including Humane Treatment, of the Population of an
103

Aboitiz & Co. v. Price, 99 F. Supp. 602, 610 (D. Utah 1951) (“[I]international law has recognized the right of theprotection of [the Occupying Power’s] military interests and the exercise of police powers. However, such law also
imposes upon the occupant the duty to maintain public order and to provide for the preservation of the rights of the
inhabitants. The emphasis is upon public order and safety, and the welfare of the inhabitants.”). See also Ochoa v.
Hernandez y Morales, 230 U.S. 139, 159 (1913) (“The protocol of August 12, 1898 (30 Stat. 1742), the purport ofwhich has already been given, left our Government, by its military forces, in the occupation and control of Porto
Rico as a colony of Spain, and bound by the principles of international law to do whatever was necessary to securepublic safety, social order, and the guaranties of private property.”).
104

Refer to § 11.9.2 (Authority for the Occupying Power to Suspend, Repeal, or Change the Municipal Law
Applicable to Occupied Territory).
105

See GC COMMENTARY 335-36 (“Article 64 expresses, in a more precise and detailed form, the terms of Article 43of the Hague Regulations, which lays down that the Occupying Power is to respect the laws in force in the country‘unless absolutely prevented’. … The principle that the penal laws in force in the occupied territory must be
maintained is subject to two reservations. The first relates to the security of the Occupying Power, which must
obviously be permitted to cancel provisions such as those concerning recruiting or urging the population to resist theenemy. The second reservation is in the interests of the population and makes it possible to abrogate any
discriminatory measures incompatible with humane requirements. … These two exceptions are of a strictly
limitative nature. The occupation authorities cannot abrogate or suspend the penal laws for any other reason—and
not, in particular, merely to make it accord with their own legal conceptions.”).
106

VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 99 (“In sharp contrast to the ‘restricted’ view concerning
civil laws, the occupant is generally conceded very extensive powers to change, alter, or suspend the ordinances anddecrees (as distinct from laws) of the legitimate sovereign of an occupied territory. It is held that administrative
regulations and executive orders are quite sharply distinct from the constitutional and statute law of a country andthat they do not constitute as important or vital a part of the latter’s legal structure. Hence the occupant is held tohave the power to interfere and to enact such regulations and ordinances as are deemed fitting and proper in his
interests and in the interests of his armed forces.”).

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Occupied Territory. The population of an occupied territory, like other protected persons under
the GC, are entitled, in all circumstances, to respect for their persons, their honor, their familyrights, their religious convictions and practices, and their manners and customs. 107 They shall at
all times be humanely treated, and shall be protected especially against all acts of violence orthreats of violence, and against insults and public curiosity.
Other provisions for the humane treatment of protected persons set forth in Articles 27
through 34 of the GC apply to the population of an occupied territory. For example, womenmust be especially protected against any attack on their honor, in particular against rape,
enforced prostitution, or any form of indecent assault. 108 Reprisals against protected persons andtheir property are prohibited. 109 The taking of hostages is prohibited. 110
In addition, protected persons in occupied territory shall have every facility for making
application to the Protecting Powers, the ICRC, the National Red Cross (Red Crescent, Red Lionand Sun) Society of the country where they may be, as well as to any organization that might
assist them. 111
11.6.2 Overview of Additional Protections for the Population That Are Specific to
Occupation. There are a number of protections for the population of occupied territory that are
specific to occupation. For example, specific provision exists for the protection of children inoccupied territory. 112 Specific constraints exist on the authority of the Occupying Power topunish protected persons, direct their movement, or compel them to perform labor. 113 Provisionalso is made with respect to: (1) food and medical supplies of the population; (2) public healthand hygiene; (3) spiritual assistance; and (4) relief efforts and consignments. 114
The following prohibitions also apply with respect to the inhabitants of occupied
territory:
11.6.2.1 Prohibition on Compelling Inhabitants of Occupied Territory to Swear
Allegiance to the Hostile State. It is forbidden to compel the inhabitants of occupied territory to107

Refer to § 10.5 (Humane Treatment and Other Basic Protections for Protected Persons). See also HAGUE IV REG.
art. 46 (“Family honour and rights, the lives of persons, and private property, as well as religious convictions andpractice, must be respected.”).
108

Refer to § 10.5.1.2 (Protection for Women Against Rape or Other Indecent Assault).

109

Refer to § 10.5.4 (Reprisals Against Protected Persons and Their Property).

110

Refer to § 10.5.1.4 (Taking of Hostages).

111

Refer to § 10.5.6 (Facility for Applying to the Protecting Powers and Assistance Organizations Such as theICRC).
112

Refer to § 11.13 (Protection of Children in Occupied Territory).

113

Refer to § 11.11 (Criminal Law in Occupied Territory); 11.12 (Movement of Persons in Occupied Territory);
11.20.1 (Types of Labor That May Not Be Compelled).
114

Refer to § 11.14 (Food and Medical Supplies for the Civilian Population); § 11.15 (Public Health and Hygiene);§ 11.16 (Spiritual Assistance); § 11.17 (Relief Efforts and Consignments).

775

swear allegiance to the hostile State. 115
11.6.2.2 Prohibition Against General Penalties in Occupied Territory. No
general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of theacts of individuals for which they cannot be regarded as jointly and severally responsible. 116
Such penalties are prohibited, even if authorized under the law of the occupied territory.
Collective penalties are prohibited as a general matter. 117
11.6.3 Occupying Power’s Duty to Respect the Rights of Protected Persons Secured by
the GC. The Occupying Power has certain obligations to respect the rights of protected persons
secured by the GC.
Protected persons who are in occupied territory shall not be deprived, in any case or inany manner whatsoever, of the benefits of the GC by any change introduced, as the result of theoccupation of a territory, into the institutions or government of the occupied territory, nor by any
agreement concluded between the authorities of the occupied territories and the Occupying
Power, nor by any annexation by the latter of the whole or part of the occupied territory. 118 For
example, an Occupying Power may not purport to annex occupied territory in order to avoid its
responsibilities as an Occupying Power. 119
The Occupying Power may not enter into any special agreements that would adversely
affect the situation of protected persons, as defined by the GC, nor restrict the rights that the GC
confers upon them. 120

115

HAGUE IV REG. art. 45 (“It is forbidden to compel the inhabitants of occupied territory to swear allegiance to thehostile Power.”); 1899 HAGUE II REG. art. 45 (“Any pressure on the population of occupied territory to take the oathto the hostile Power is prohibited.”).
116

HAGUE IV REG. art. 50 (“No general penalty, pecuniary or otherwise, shall be inflicted upon the population on
account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.”).
117

Refer to § 8.16.2.1 (Individual Penal Responsibility and No Collective Punishment).

118

GC art. 47 (“Protected persons who are in occupied territory shall not be deprived, in any case or in any mannerwhatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of aterritory, into the institutions or government of the said territory, nor by any agreement concluded between theauthorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole orpart of the occupied territory.”).

119

See Trial of Robert Wagner, Gauleiter and Head of the Civil Government of Alsace during the Occupation, andSix Others, III U.N. LAW REPORTS 23, 45 (Permanent Military Tribunal at Strasbourg, Apr. 23-May 3, 1946, andCourt of Appeal, Jul. 24, 1946) (“Wagner put forward a plea based upon an alleged violation by false application of
the Ordinance of 28th August, 1944, claiming that the acts alleged were committed in Alsace, which was annexedby Germany, and on territory over which French sovereignty had ceased to operate. The purported declaration ofannexation of Alsace by Germany on which reliance was placed in the plea was deemed by the Court of Appeal to
be nothing more than a unilateral act which could not legally modify the clauses of the treaty signed at Versailles on
28th June, 1919, by the representatives of Germany. Therefore the acts alleged to have been committed by Wagner
were committed in Alsace, French territory, and constituted war crimes in the sense of Art. 1 of the Ordinance of
28th August, 1944.”).
120

Refer to § 10.1.1.2 (Special Agreements Under the GC).

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The Occupying Power may also not evade its responsibilities through the purported
renunciation by protected persons of the rights secured to them by the GC and by any special
agreements referred to in Article 7 of the GC. 121
In certain cases, a protected person’s rights of communication under the GC may be
forfeited for security reasons. 122
11.6.4 Citizens of Neutral States in Occupied Territory. Citizens of neutral States
residing within an occupied territory are generally treated the same as other residents of occupied
territory. 123
11.7 AUTHORITY OF THE OCCUPYING POWER OVER INHABITANTSThe Occupying Power’s authority over inhabitants of occupied territory derives from its
war powers and from its duty to ensure public order and safety in occupied territory. The
Occupying Power, as a belligerent State, may take such measures of control and security inregard to protected persons as may be necessary as a result of the war. 124 In addition, theOccupying Power may take measures necessary to fulfill its duty to ensure public order andsafety. 125
11.7.1 Inhabitants’ Obedience to the Occupying Power. It is the duty of the inhabitants
to carry on their ordinary peaceful pursuits, to behave in an absolutely peaceful manner, to takeno part whatever in the hostilities carried on, to refrain from all injurious acts toward the forces
or in respect to their operations, and to render strict obedience to the orders of the occupant. 126
Subject to the restrictions imposed by international law, the Occupying Power may
demand and enforce from the inhabitants of occupied territory such obedience as may benecessary for the security of its forces, for the maintenance of law and order, and for the proper
administration of the country. 127
The inhabitant’s obedience to the Occupying Power is generally distinguished from aduty of allegiance. 128 The inhabitant’s duty of allegiance to his or her State of nationality is not
121

Refer to § 10.3.6 (Non-Renunciation of Rights Secured by the GC).

122

Refer to § 10.4.2 (Derogation in Occupied Territory).

123

Refer to § 15.6.4 (Neutral Persons Resident in Occupied Territory).

124

Refer to § 10.6 (Measures of Control and Security).

125

Refer to § 11.5.1 (Authority Conferred by the Occupying Power’s Duty to Ensure Public Order and Safety).

126

1956 FM 27-10 (Change No. 1 1976) ¶432 (“It is the duty of the inhabitants to carry on their ordinary peaceful
pursuits, to behave in an absolutely peaceful manner, to take no part whatever in the hostilities carried on, to refrainfrom all injurious acts toward the troops or in respect to their operations, and to render strict obedience to the ordersof the occupant.”).
127

1956 FM 27-10 (Change No. 1 1976) ¶432 (“Subject to the restrictions imposed by international law, theoccupant can demand and enforce from the inhabitants of occupied territory such obedience as may be necessary forthe security of its forces, for the maintenance of law and order, and for the proper administration of the country.”).
128

Brigadier General George B. Davis, Working Memoranda (Confidential for the United States Delegates): The
Second Peace Conference (Paragraph 2 of Programme), The Rules of War on Land, 37 (1907) (“But the control

777

severed. 129 The inhabitants, however, are not bound to obey their State of nationality. 130
11.7.1.1 Enforcement of Obedience. The Occupying Power’s enforcement ofobedience must comply with the law of war. For example, measures prohibited by the law ofwar, such as collective punishments, acts of torture, or reprisals, may not be used.
11.7.2 Censorship and Other Regulation of the Media. Under the law of belligerent
occupation, 131 for the purposes of security, an Occupying Power may establish censorship or
regulation of any or all forms of media (e.g., press, radio, television) and entertainment (e.g.,theater, movies), of correspondence, and of other means of communication. 132 For example, an
Occupying Power may prohibit entirely the publication of newspapers that pose a threat tosecurity, or it may prescribe regulations for the publication or circulation of newspapers of othermedia for the purpose of fulfilling its obligations to restore public order. 133
The Occupying Power is not required to furnish facilities for postal service, but may takecharge of them itself, especially if the officials of the occupied district fail to act or to obey its
which the commanding general exercises over the inhabitants of occupied territory is not based upon any theory ofallegiance, their relation to him being out of constrained obedience to his commands. As the allegiance of the
population has not been changed, the occupying commander can not compel the individuals composing it to commit
acts of treason; that is, to take part in acts of hostility against their own government.”).
129

GC COMMENTARY 346 (“The words ‘duty of allegiance’ [in Article 68 of the GC] constitute an acknowledgmentof the fundamental principle according to which the occupation does not sever the bond existing between the
inhabitants and the conquered State. Protected persons must nevertheless obey legitimate orders issued by the
Occupying Power.”); GC COMMENTARY 305 (“It may be mentioned in this connection that public officials andjudges act under the superintendence and control of the occupant to whom legal power has passed in actual practiceand to whom they, like any other protected person, owe obedience. But this duty of obedience does not cancel out
the duty of allegiance which subsists during the period of occupation.”).
130

United States v. Rice, 17 U.S. 246, 254 (1819) (Story, J.) (“By the conquest and military occupation of Castine,the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over thatplace. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the UnitedStates could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained andsubmitted to the conquerors. By the surrender, the inhabitants passed under a temporary allegiance to the British
government, and were bound by such laws, and such only, as it chose to recognise and impose. From the nature of
the case, no other laws could be obligatory upon them, for where there is no protection or allegiance or sovereignty,
there can be no claim to obedience. Castine was, therefore, during this period, so far as respected our revenue laws,
to be deemed a foreign port; and goods imported into it by the inhabitants, were subject to such duties only as the
British government chose to require. Such goods were in no correct sense imported into the United States.”).

131

The discussion in this sub-section focuses solely on what is permitted under the law of war and does not addresspossible implications of censorship under the First Amendment of the Constitution.
132

1956 FM 27-10 (Change No. 1 1976) ¶377 (“The belligerent occupant may establish censorship of the press,
radio, theater, motion pictures, and television, of correspondence, and of all other means of communication. It may
prohibit entirely the publication of newspapers or prescribe regulations for their publication and circulation.”).
133

For example, Coalition Provisional Authority Public Notice, Towards a Responsible Iraqi Media, Jun. 10, 2003(“Disseminating material that incites violence, however poses a direct threat to personal freedoms, and is therefore
banned under the terms of this order, as it is in any civilized society. Equally, advocating the return to power of therepressive and criminal Ba’athist regime would undermine civil order and the freedom from fear of politicalrepression, both of which are necessary for the development of a free and democratic Iraq. Thus the CPA is issuingan Order that prohibits Iraqi media organizations from broadcasting or publishing material that would seriously
undermine security and civil order in Iraq.”).

778

orders. 134
11.7.3 Control of Means of Transportation. An Occupying Power is entitled to exercise
authority over all means of public and private transportation, whether land, waterborne, or air,within the occupied territory, and may seize them and regulate their operation. 135
11.7.4 Limits on Safety Measures. If the Occupying Power considers it necessary, forimperative reasons of security, to take safety measures concerning protected persons, it may, at
the most, subject them to assigned residence or to internment. 136 The Occupying Power mustcomply with certain procedural requirements (e.g., appeal, periodic review) when conducting
assigned residence or internment of protected persons in occupied territory based on imperative
reasons of security. 137 The Occupying Power also has an obligation to support persons who areassigned residence and thus are required to leave their homes, consistent with the standards forthe treatment of internees. 138
11.8 ADMINISTRATION OF OCCUPIED TERRITORY
11.8.1 Paramount Authority of the Occupying Power Over Government Functions in
Occupied Territory. The functions of the hostile government—whether of a general, provincial,or local character—continue only to the extent they are sanctioned by the Occupying Power. 139
11.8.2 Continued Performance of Duties by Civil Servants and Other Officials of Local
Governments. The Occupying Power may, while retaining its paramount authority, permit the
government of the country to perform some or all of its normal functions. 140 It may, forexample, call upon the local authorities to administer designated rear areas, subject to the1341956 FM 27-10 (Change No. 1 1976) ¶377 (“The occupant is not required to furnish facilities for postal service,
but may take charge of them itself, especially if the officials of the occupied district fail to act or to obey its
orders.”).
135

1956 FM 27-10 (Change No. 1 1976) ¶378 (“The belligerent occupant exercises authority over all means oftransportation, both public and private, within the occupied district, and may seize them and regulate theiroperation.”).
136

Refer to § 10.6.3 (No Measures of Control More Severe Than Assigned Residence or Internment).

137

Refer to § 10.9.3 (Procedure for Internment or Assigned Residence in Occupied Territory).

138

Refer to § 10.6.4 (Support to Persons Who Are Assigned Residence Should Be Guided by Internment Standards).

139

1956 FM 27-10 (Change No. 1 1976) ¶367a (“The functions of the hostile government—whether of a general,provincial, or local character—continue only to the extent they are sanctioned by the occupant.”). For example,
Coalition Provisional Authority Regulation No. 1, §2 (May 16, 2003) (“Unless suspended or replaced by the CPA orsuperseded by legislation issued by democratic institutions of Iraq, laws in force in Iraq as of April 16, 2003 shallcontinue 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.”).
140

1956 FM 27-10 (Change No. 1 1976) ¶367b (“The occupant may, while retaining its paramount authority, permit
the government of the country to perform some or all of its normal functions. It may, for example, call upon thelocal authorities to administer designated rear areas, subject to the guidance and direction of the occupying power.
Such action is consistent with the status of occupation, so long as there exists the firm possession and the purpose tomaintain paramount authority.”).

779

guidance and direction of the Occupying Power. 141 Such action is consistent with the status ofoccupation, so long as there exists the firm possession of territory and the purpose to maintainparamount authority. 142 Similarly, for example, courts are generally to continue the ordinary
administration of justice during occupation. 143
The compulsion of civil servants and other officials of local governments to continue toperform their duties must be justified by military necessity and consistent with applicableprovisions of the GC. 144
11.8.3 Local Governments Under Duress or Surrogate Governments. The restrictions
placed upon the authority of a belligerent State cannot be avoided by a system of using a puppet
government, central or local, to carry out acts that would be unlawful if performed directly by the
Occupying Power. Acts induced or compelled by the Occupying Power are nonetheless its
acts. 145
11.8.4 Responsibility of the Occupying Power for Treatment Accorded to Protected
Persons by Its Agents. An Occupying Power, like belligerent States, is responsible for thetreatment accorded to protected persons by its agents, irrespective of any individual
responsibility that may be incurred. 146 The responsibility of the Occupying Power for its agentsincludes those agents that are not its nationals, such as locally recruited agents of the nationalityof the State whose territory is occupied. 147
11.8.5 Immunity of Occupation Personnel From Local Law. Military and civilian
personnel of the occupying forces and occupation administration and persons accompanying
them are not subject to the local law or to the jurisdiction of the local civil or criminal courts of
the occupied territory, unless expressly made subject thereto by a competent officer of the141

For example, Reports of General MacArthur, in I Supplement MacArthur in Japan: The Occupation: Military
Phase 25-26 (1966) (“While the air lift of the main initial force was in progress on 30 August, GHQ, AFPAC, issued
an amendment to Operations Instructions No. 4, which materially altered the missions assigned to the Armycommanders who soon would be arriving on the Nippon homeland. Instead of actually instituting ‘military
government,’ Army commanders were to supervise the execution of the policies relative to government functions
which GHQ, AFPAC, was to issue directly to the Japanese Government;”).
142

Refer to § 11.2.2.2 (“Under the Authority” – Suspension and Substitution of Governmental Authority).

143

Refer to § 11.10 (Ordinary Courts in Occupied Territory).

144

Refer to § 11.21.1 (Continued Service of Judges and Other Public Officials).

145

1956 FM 27-10 (Change No. 1 1976) ¶366 (“The restrictions placed upon the authority of a belligerent
government cannot be avoided by a system of using a puppet government, central or local, to carry out acts which
would be unlawful if performed directly by the occupant. Acts induced or compelled by the occupant arenonetheless its acts.”).
146

Refer to § 10.3.5 (State Responsibility for Its Agents’ Treatment of Protected Persons); § 18.9.1 (State
Responsibility for Violations of the Law of War by Its Armed Forces).
147
GC COMMENTARY 212 (“The nationality of the agents does not affect the issue. That is of particular importancein occupied territories, as it means that the occupying authorities are responsible for acts committed by their locallyrecruited agents of the nationality of the occupied country.”).

780

Occupying Power. 148
It is important for the Occupying Power to ensure that an appropriate system ofsubstantive law applies to such persons and that tribunals are in existence to deal with civil
litigation to which they are parties and with offenses committed by them. 149 In the past, provost
courts have been used for these purposes. 150 In recent practice, the Uniform Code of Military
Justice and the Military Extraterritorial Jurisdiction Act, among others, have been used toaddress offenses committed by military and civilian personnel in the context of occupation. 151
11.8.6 Civilian or Military Nature of the Occupation Government. It is immaterial
whether the government over an enemy’s territory consists in a military or civil or mixed
administration. Its character is the same and the source of its authority the same. It is agovernment imposed by force, and the legality of its acts is determined by the law of war. 152
For example, the governing authority established by the Occupying Power may becomposed of civilian personnel. 153

148

1956 FM 27-10 (Change No. 1 1976) ¶374 (“Military and civilian personnel of the occupying forces andoccupation administration and persons accompanying them are not subject to the local law or to the jurisdiction of
the local courts of the occupied territory unless expressly made subject thereto by a competent officer of theoccupying forces or occupation administration.”). For example, Coleman v. Tennessee, 97 U.S. 509, 518-19 (1878)(“The laws of Tennessee with regard to offenses and their punishment, which were allowed to remain in force
during its military occupation, did not apply to the defendant, as he was at the time a soldier in the army of theUnited States and subject to the Articles of War. He was responsible for his conduct to the laws of his own
government only as enforced by the commander of its army in that state, without whose consent he could not evengo beyond its lines. Had he been caught by the forces of the enemy after committing the offense, he might havebeen subjected to a summary trial and punishment by order of their commander, and there would have been no justground of complaint, for the marauder and the assassin are not protected by any usages of civilized warfare. But the
courts of the state, whose regular government was superseded and whose laws were tolerated from motives of
convenience, were without jurisdiction to deal with him.”).
149

1956 FM 27-10 (Change No. 1 1976) ¶374 (“The occupant should see to it that an appropriate system ofsubstantive law applies to such persons and that tribunals are in existence to deal with civil litigation to which they
are parties and with offenses committed by them.”).
150

Refer to § 11.11.3.1 (U.S. Practice for Properly Constituted, Non-Political Military Courts).

151

Refer to § 18.19.3.1 (Uniform Code of Military Justice Offenses); § 18.19.3.5 (Extraterritorial Application of
Certain Federal Offenses Through MEJA).
152

1956 FM 27-10 (Change No. 1 1976) ¶368 (“It is immaterial whether the government over an enemy’s territory
consists in a military or civil or mixed administration. Its character is the same and the source of its authority thesame. It is a government imposed by force, and the legality of its acts is determined by the law of war.”).
153

For example, E. ZIEMKE, THE U.S. ARMY IN THE OCCUPATION OF GERMANY 1944-1946 404 (1975) (“From the
beginning the US Group Control Council had been considered more a vehicle for future civilian authority than anelement of Army-administered military government. In April 1945, in his first outline for military governmentorganization, Clay proposed also to bring civilians into the theater G-5 so that both it and the US Group Control
Council could be ‘carved out of’ the military command when the shift to civilian responsibility occurred. A month
later, in the organizational directive for military government, Clay stated, ‘This organization must become civilian incharacter as rapidly as consistent with efficient performance so that it may become at the earliest possible date aframework for the administration of political control in Germany by the appropriate US civil agencies.’”).

781

11.9 LOCAL LAW AND LEGISLATION
11.9.1 General Continuation of Municipal Law of the Occupied Territory as Between
Inhabitants. In general, the municipal law of the occupied territory (i.e., the ordinary domestic
civil and criminal law) and their administration remain in full force so far as the inhabitants ofoccupied territory are concerned, unless changed by the Occupying Power. 154 For example, thepenal laws of the occupied territory generally continue in force. 155
As a foreign State and as the paramount authority in the occupied territory, theOccupying Power is not bound by the municipal law of the occupied territory. 156 For example,
the Occupying Power would not be bound by a municipal law that had been enacted by the Stateof the occupied territory to prevent trading with the enemy. 157 Similarly, the Occupying Power’s
personnel are immune from the application of local law. 158
11.9.2 Authority for the Occupying Power to Suspend, Repeal, or Change the Municipal
Law Applicable to Occupied Territory. The duty of the Occupying Power to respect, unlessabsolutely prevented, the laws in force in the country prohibits it from arbitrarily exercising its
authority to suspend, repeal, or change the municipal law applicable to occupied territory. 159 Aswith other authorities under the law of war, the Occupying Power must use its power withrespect to the municipal law of occupied territory in good faith and not for the purpose of
oppressing the population. 160
154

Coleman v. Tennessee, 97 U.S. 509, 517 (1879) (“By such occupation the political relations between the peopleof the hostile country and their former government or sovereign are for the time severed; but the municipal laws -that is, the laws which regulate private rights, enforce contracts, punish crime, and regulate the transfer of property - remain in full force, so far as they affect the inhabitants of the country among themselves, unless suspended orsuperseded by the conqueror. And the tribunals by which the laws are enforced continue as before, unless thuschanged. In other words, the municipal laws of the State, and their administration, remain in full force so far as the
inhabitants of the country are concerned, unless changed by the occupying belligerent.”). See also Ho Tung & Co.
v. United States, 42 Ct. Cl. 213, 227 (Ct. Cl. 1907) (“It is unquestioned that upon the occupation by our militaryforces of the port of Manila it was their duty to respect and assist in enforcing the municipal laws then in force there
until the same might be changed by order of the military commander, called for by the necessities of war.”).
155

Refer to § 11.11.1 (General Continuation of Penal Laws of the Occupied Territory).

156

Refer to § 11.8.1 (Paramount Authority of the Occupying Power Over Government Functions in Occupied
Territory).
157

For example, N.V. De Bataafsche Petroleum Maatschappli & Ors. v. The War Damage Commission (Court ofAppeal, Singapore, April 13, 1956), reprinted in 51 AJIL 802, 807 (1957) (‘The provisions of the [Netherlands
Indies] Wartime Legal Relations Ordinance were, no doubt, very appropriate when applied to ‘persons,’ as definedin section 1 of the Ordinance, but to contend that they apply to a belligerent occupant, that is to say, to an
International Person, who is thereby placed under a statutory obligation to seek the permission of the Director of
Economic Affairs before doing any act which might benefit the enemy (which is, of course, himself) is, to my mind,
an untenable proposition.”).
158

Refer to § 11.8.5 (Immunity of Occupation Personnel From Local Law).

159

Refer to § 11.5.2 (Duty to Respect, Unless Absolutely Prevented, the Laws in Force in the Country).

160

GC COMMENTARY 337 (“It will be seen that the powers which the Occupying Power is recognized to have arevery extensive and complex, but these varied measures must not under any circumstances serve as a means of
oppressing the population. The legislative and penal jurisdiction exercised by the occupation authorities, as holderof public power, is therefore hedged about with numerous safeguards set forth in the following Articles.”).

782

The Occupying Power may subject the population of the occupied territory to provisions:(1) that are essential to enable the Occupying Power to fulfill its obligations under the GC; (2) tomaintain the orderly government of the territory; and (3) to ensure the security of the Occupying
Power, of the members and property of the occupying forces or administration, and likewise of
the establishments and lines of communication used by them. 161
Broader authority for the Occupying Power to change the laws of the occupied territory
may be provided by the U.N. Security Council. 162
After the Occupying Power’s occupation has ended, its changes to the municipal law ofthe occupied territory may be changed, subject to the requirements of applicable internationallaw.
11.9.2.1 Distinction Between Suspension, Repeal, Change, or Enactment ofMunicipal Laws. The distinction between the suspension, repeal, change, or enactment of a newlaw may be of little practical consequence.
Implicit in the authority to enact new laws is the authority to suspend or repeal existinglaws. Thus, the repeal or suspension of a law may be accomplished by the Occupying Powersubjecting the population of the occupied territory to additional provisions of law that areinconsistent with the earlier law. For example, a law permitting discrimination may beeffectively suspended by the Occupying Power requiring officials to apply the law impartially. 163
The power to suspend or repeal laws may also include the power to amend laws. For
example, the partial suspension of a tax imposed on the population may also be viewed as achange in the tax rate. 164
However, new penal provisions may not come into force before they have been
published. 165
11.9.2.2 Examples of Laws That May Be Suspended, Repealed, Changed, or
Enacted by the Occupying Power. Examples of provisions that may, depending on thecircumstances, be suspended, repealed, changed, or enacted by the Occupying Power include
legal provisions:161

GC art. 64 (“The Occupying Power may, however, subject the population of the occupied territory to provisions
which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintainthe orderly government of the territory, and to ensure the security of the Occupying Power, of the members andproperty of the occupying forces or administration, and likewise of the establishments and lines of communication
used by them.”).
162

Refer to § 11.1.2.5 (Occupation and U.N. Security Council Resolutions).

163

For example, Coalition Provisional Authority Order No. 7, Penal Code, §4 (Jun. 10, 2003) (“In exercising theirofficial functions, all persons undertaking public duties or holding public office, including all police, prosecutors,
and judges, must apply the law impartially. No person will be discriminated against on the basis of sex, race, color,
language, religion, political opinion, national, ethnic or social origin, or birth.”).
164

Refer to § 11.22.1.2 (Changes in Taxes or New Taxes).

165

Refer to § 11.11.2.1 (Publication of Penal Provisions Before Coming Into Force).

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•

relating to serious offenses that pose a threat to public order, such as kidnapping, rape,and forcible vehicle larceny; 166•

relating to the sale or possession of weapons by members of the civilian population; 167•

relating to measures for the protection of the Occupying Power’s forces or administration(e.g., laws relating to the recruitment of persons into the occupied State’s armed forces orinsurgent groups, relating to curfews or restricted areas); 168•

relating to political process, such as laws regarding the rights of suffrage and of
assembly; 169•

relating to the supply of food and other items essential to the survival of the civilian
population, and the prevention of illicit trade in, or hoarding of, such items; 170

166

For example, Coalition Provisional Authority Order No. 31, Modifications of Penal Code and Criminal
Proceedings Law, preamble, §§2-3, 5 (Sept. 10, 2003) (modifying sentences for certain offenses in the Iraqi Penal
Code based on the recognition that “instances of kidnapping, rape, and forcible vehicle larceny represent a serious
threat to the security and stability of the Iraqi population”).
167

For example, COLONEL I. L. HUNT, AMERICAN MILITARY GOVERNMENT OF OCCUPIED GERMANY, 1918-1920:
REPORT OF THE OFFICER IN CHARGE OF CIVIL AFFAIRS, THIRD ARMY AND AMERICAN FORCES IN GERMANY 107(1943) (“‘The carrying of arms or deadly weapons is forbidden except by the local police. Every person inpossession of arms and ammunition of any kind must deliver them to the American authorities at such time or placeas may be appointed. A receipt for each weapon will be given at the time of delivery and the weapon tagged with
the name of the owner.’ Precedents for forbidding the civil population to carry arms and ammunition during a
military occupation are so numerous that the publication of such regulations by the American army in this instancecannot be considered a severe restriction. During the march to the Rhine, the Commanding General of the Third
Army had recognized the necessity of a regulation of this nature, and in Memorandum No. 4 had instructed unit
commanders to forbid civilians to carry deadly weapons.”).
168

GC COMMENTARY 337 (“(c) It is, lastly, authorized to promulgate penal provisions for its own protection. Thispower has long been recognized by international law. The provision is sufficiently comprehensive to cover all
civilian and military organizations which an Occupying Power normally maintains in occupied territory. The
Convention mentions ‘the Occupying Power’ itself besides referring to the members and property of the occupying
forces or administration, so that general activities such as activities on behalf of enemy armed forces are covered.
The Occupying Power is entitled to use establishments and lines of communication for its own needs; it is therefore
entitled to take appropriate measures to ensure their security.”).
169

1956 FM 27-10 (Change No. 1 1976) ¶371 (“The occupant may alter, repeal, or suspend laws of the following
types: a. Legislation constituting a threat to its security, such as laws relating to recruitment and the bearing ofarms. b. Legislation dealing with political process, such as laws regarding the rights of suffrage and of assembly. c.
Legislation the enforcement of which would be inconsistent with the duties of the occupant, such as laws
establishing racial discrimination.”).
170

For example, COLONEL I. L. HUNT, AMERICAN MILITARY GOVERNMENT OF OCCUPIED GERMANY, 1918-1920:
REPORT OF THE OFFICER IN CHARGE OF CIVIL AFFAIRS, THIRD ARMY AND AMERICAN FORCES IN GERMANY 164-65(1943) (“Sale of American foodstuffs was by the ticket system. … The method of using the food tickets, was, inbrief, as follows. Each person or head of family was issued the number of coupons to which he was entitled, eachcoupon authorizing him to buy a certain quantity of a certain food, within a certain period of time. There were also
coupons, not bearing the name of any particular food, but numbered, to be used for foods not regularly issued. The
coupons entitled the holder to register with some merchant of his own choice, who in turn registered his totalrequirements with the local Food Office. When the food arrived, each merchant was allotted the amount necessary
to provide for the persons registered with him. Announcements of distribution were made in the daily papers. The

784

•

relating to the administration of the law, such as repealing laws establishing racial
discrimination or promulgating laws requiring the impartial application of the law by
local officials; 171 and•relating to the Occupying Power’s obligations under the GC, such as legislation to help
provide for child welfare, labor, food, hygiene, and public health of the occupied
territory. 172

11.9.3 Procedural Obligation – Notification to the Population of Changes in Law. The
Occupying Power is not required to adhere to the local procedure for amending municipal law.
However, the population of the occupied territory must be informed of the alteration, suspension,or repeal of existing laws, and of the enactment of new laws. In particular, penal provisions mustbe published before entering into force. 173
In practice, to ensure that all inhabitants are on notice of what is expected, the Occupying
Power is to publish a decree or order at, or immediately after, the beginning of the occupation, inorder to clarify the applicable laws and orders, and the punishments that can be imposed if the
inhabitants fail to comply. Such notification may be provided as part of a proclamation ofoccupation. 174
11.10 ORDINARY COURTS IN OCCUPIED TERRITORY
In general, the courts and other tribunals of the occupied territory, like othergovernmental functions, should continue to operate. 175 For example, ordinary crimes that do notaffect the security of the Occupying Power or its personnel should continue to be administeredby the courts in the occupied territory. 176
merchant kept the coupons to indicate the amounts and regularity of his sales. Any allotment not entirely sold,might be returned to the food authorities or debited against the next allotment. The system seemed simple enough,but there was considerable traffic in tickets. Well-to-do people seldom suffered for lack of food, though they may
often not have been able to get the variety they wanted.”).
171

For example, Coalition Provisional Authority Order No. 7, Penal Code, §4 (Jun. 10, 2003) (“In exercising theirofficial functions, all persons undertaking public duties or holding public office, including all police, prosecutors,
and judges, must apply the law impartially. No person will be discriminated against on the basis of sex, race, color,
language, religion, political opinion, national, ethnic or social origin, or birth.”).
172

GC COMMENTARY 337 (“The legislative power of the occupant as the Power responsible for applying theConvention and the temporary holder of authority is limited to the matters set out in a limitative list below. (a) It
may promulgate provisions required for the application of the Convention in accordance with the obligations
imposed on it by the latter in a number of spheres: child welfare, labour, food, hygiene and public health etc.”).
173

Refer to § 11.11.2.1 (Publication of Penal Provisions Before Coming Into Force).

174

Refer to § 11.2.4 (Proclamation of Occupation).

175

LIEBER CODE art. 6 (“All civil and penal law shall continue to take its usual course in the enemy’s places andterritories under Martial Law, unless interrupted or stopped by order of the occupying military power; but all thefunctions of the hostile government – legislative, executive, or administrative – whether of a general, provincial, or
local character, cease under Martial Law, or continue only with the sanction, or, if deemed necessary, theparticipation of the occupier or invader.”).
176

Refer to § 11.11.1.4 (Continued Administration of Penal Law by Courts in the Occupied Territory).

785

However, the administration of justice in the occupied territory, like the performance ofother governmental functions, is subject to the direction of the Occupying Power. 177
11.10.1 Authority to Suspend Ordinary Courts. The ordinary courts in occupied territory
should be suspended only if: (1) judges and magistrates are unable or unwilling to perform theirduties; (2) the courts are corrupt or unfairly constituted; or (3) the local judicial administration
has collapsed due to the hostilities preceding the occupation. 178
In such cases, the Occupying Power may use its own properly constituted, non-politicalmilitary courts to ensure that offenses against the local laws are properly tried. 179 The
Occupying Power may also reform local courts, including by establishing new criminal courts
under the law of the occupied State. 180
11.10.1.1 Judicial Inability or Unwillingness to Perform Their Duties. Judges
and magistrates may abstain from fulfilling their functions for reasons of conscience. 181 An
inability to perform their normal duties may result from a failure of public services, such as
public transportation, or threats by insurgents.
11.10.1.2 Corruption and Unfairness in the Judicial System. Corruption andunfairness in the judicial system may constitute a serious obstacle to public order and safety, andan obstacle to the Occupying Power’s application of the fundamental fair trial protections
guaranteed by the GC. 182 The Occupying Power may take appropriate measures to remedy suchcorruption or unfairness. For example, committees may be established to review the suitabilityof judges and prosecutors. 183 Similarly, a facility may be established to help resolve conflicting
property claims on a voluntary basis. 184
177

For example, Coalition Provisional Authority Order No. 7, Penal Code, §1 (Jun. 10, 2003) (“All judges, policeand prosecutors shall perform their duties in accordance with CPA Regulation No. 1 (CPA/REG/23 May 2003/01)
and in accordance with any other Regulations, Orders, Memoranda or instructions issued by the CPA.”).

178

1956 FM 27-10 (Change No. 1 1976) ¶373 (“The ordinary courts of justice should be suspended only if: a.
Judges and magistrates abstain from fulfilling their functions (see GC, art. 54; par. 422 herein); or b. The courts arecorrupt or unfairly constituted; or c. Local judicial administration has collapsed during the hostilities preceding theoccupation and the occupant must set up its own courts to ensure that offenses against the local laws are properly
tried. In such cases, the occupant may establish courts of its own and make this measure known to the
inhabitants.”).
179

Refer to § 11.11.3 (Properly Constituted, Non-Political Military Courts in Occupied Territory).

180

Refer to § 11.11.1.4 (Continued Administration of Penal Law by Courts in the Occupied Territory).

181

Refer to § 11.21.1 (Continued Service of Judges and Other Public Officials).

182

Refer to § 11.5 (Duty of the Occupying Power to Ensure Public Order and Safety); § 10.29 (Judicial Proceedings
Regarding Protected Persons in Occupied Territory or Internees in a Belligerent’s Home Territory).
183

For example, Coalition Provisional Authority Order No. 15, Establishment of the Judicial Review Committee,§4(1) (Jun. 23, 2003) (“The Committee shall investigate and gather information on the suitability of Judges andProsecutors to hold office. It shall have the power to remove judges and prosecutors from office, confirm theircontinued holding of office, appoint replacements for judges and prosecutors removed from office and resolve theclaims of judges and prosecutors who assert that they were improperly removed from office.”).
184

For example, Coalition Provisional Authority Regulation No. 4, Establishment of the Iraqi Property
Reconciliation Facility, §1(1) (Jun. 26, 2003) (“There shall be established an Iraqi Property Reconciliation Facility786

11.10.2 Prohibition Against Extinguishing Rights and Actions of Enemy Nationals. It isespecially forbidden to declare abolished, suspended, or inadmissible in a court of law the rights
and actions of the nationals of a hostile party. 185
This rule has been interpreted to apply solely to enemy areas occupied by a belligerent. 186
It has been interpreted to prohibit a military commander from arbitrarily annulling the results ofcivil proceedings between private parties. 187
11.11 CRIMINAL LAW IN OCCUPIED TERRITORY
This section addresses criminal law in occupied territory. Additional rules apply to
judicial proceedings against protected persons in occupied territory, which are also applied byanalogy to judicial proceedings against internees in a belligerent’s home territory. 188(IPRF) that shall commence operation at a time to be fixed by the Administrator, for the purpose of collecting real
property claims and promptly resolving such claims on a voluntary basis in a fair and judicious manner.”).
185

HAGUE IV REG. art. 23 (“[I]t is especially forbidden … (h) To declare abolished, suspended, or inadmissible in acourt of law the rights and actions of the nationals of a hostile party.”).

186

Ex parte Kumezo Kawato, 317 U.S. 69, 72 footnote 1 (1942) (“Petitioner argues that his case is covered byarticle 23 h of the Annex to the IVth Hague Convention of 1907: ‘It is especially prohibited . . . to declareabolished, suspended, or inadmissible in a Court of law the rights and action of the nationals of the hostile party.’
This clause, which was added to the convention of 1899 without substantial discussion either by the Delegates inGeneral Assembly or by the committee and sub-committee which dealt with it, III Proceedings of the Hague
Convention of 1907, 12, 107, 136, 240; and I ibid. 83, was construed by an English Court to apply solely in enemy
areas occupied by a belligerent. Porter v. Freudenberg, [1915] 1 K. B. 857. The question has not been raised in the
courts in this country, but the English interpretation was repeated with approval by Representative Montague of theInterstate Commerce Committee in his address to the House when he presented to it the Trading with the Enemy
Act. 55 Cong. Rec. 4842 (1917).”).
187

For example, 1958 UK MANUAL ¶524 note 1 (“Hague Rules 23 (h). The following example of the relevance ofthat article may be mentioned: during the British occupation of Cyrenaica in the course of the Second World War,in order to avoid disturbances, pressure was put upon the British administration to prevent the execution of a local
judgment restoring to its Italian owner a mill in the occupation of an Arab trustee. The legal adviser of the
Administration expressed the view that a failure to enforce the judgment would be contrary to this article, see Watts
in Grotius Society, vol. 37, pp. 69-82.”). Cf. Ochoa v. Hernandez y Morales, 230 U.S. 139, 154-61 (1912) (“Inorder to determine the extent of the authority of General Henry, and the limitations upon it, we must look to theorders under which the military government was established and maintained. … Under all the circumstances wedeem it clear that the Governor was without authority from the President to make any order, judicial in its nature,that would have the effect of depriving any person of his property without due process of law. … Whatever else may
be uncertain about the definition of the term ‘due process of law,’ all authorities agree that it inhibits the taking of
one man's property and giving it to another, contrary to settled usages and modes of procedure, and without notice oran opportunity for a hearing.); Raymond v. Thomas, 91 U.S. 712, 715-16 (1876) (“We have looked carefully
through the acts of March 2, 1867, and July 19, 1867. They give very large governmental powers to the militarycommanders designated, within the States committed respectively to their jurisdiction; but we have found nothing towarrant the order here in question. It was not an order for mere delay. It did not prescribe that the proceeding
should stop until credit and confidence were restored, and business should resume its wonted channels. It wholly
annulled a decree in equity regularly made by a competent judicial officer in a plain case clearly within his
jurisdiction, and where there was no pretense of any unfairness, of any purpose to wrong or oppress, or of any
indirection whatsoever. … It was an arbitrary stretch of authority, needful to no good end that can be imagined.”).
188

Refer to § 10.29 (Judicial Proceedings Regarding Protected Persons in Occupied Territory or Internees in a
Belligerent’s Home Territory).

787

11.11.1 General Continuation of Penal Laws of the Occupied Territory. The generalprinciple that the Occupying Power must respect, unless absolutely prevented, the laws in force
in the occupied territory also applies to the penal laws of the occupied territory. 189
In particular, the penal laws of the occupied territory shall remain in force during theoccupation, with the exception that they may be repealed or suspended by the Occupying Power
where they constitute a threat to its security or an obstacle to the application of the GC. 190
Subject to the latter consideration and to the necessity of ensuring the effective administration ofjustice, the courts of the occupied territory shall continue to function in respect of all offenses
covered by these laws. 191
11.11.1.1 Types of Laws That Are Considered Penal Laws. Penal laws addressedby this rule may be understood to include all laws, regulations, decrees, orders, and similar
measures intended to repress offenses, including the rules of criminal procedure. 192
11.11.1.2 Laws Constituting an Obstacle to the Application of the GC. The
Occupying Power may repeal or suspend penal laws constituting an obstacle to the application of
the GC. For example, the Occupying Power may abrogate discriminatory measures that areincompatible with humane requirements. 193
11.11.1.3 Method of Repeal or Suspension of Penal Laws. The repeal orsuspension of the penal laws of the occupied territory may be achieved directly through an ordersuspending or repealing the law. 194 The suspension of a penal law may also be done by requiringthat a penal law may only be enforced with the approval of the Occupying Power. 195 The repeal
189

Refer to § 11.9.1 (General Continuation of Municipal Law of the Occupied Territory as Between Inhabitants).

190

GC art. 64 (“The penal laws of the occupied territory shall remain in force, with the exception that they may berepealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle
to the application of the present Convention.”).
191

GC art. 64 (“Subject to the latter consideration and to the necessity for ensuring the effective administration ofjustice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the saidlaws.”).
192

GC COMMENTARY 335 (“The words ‘penal laws’ mean all legal provisions in connection with the repression of
offenses: the penal code and rules of procedure proper, subsidiary penal laws, laws in the strict sense of the term,
decrees, orders, the penal clauses of administrative regulations, penal clauses of financial laws, etc.”).
193

GC COMMENTARY 335 (“The second reservation is in the interests of the population and makes it possible toabrogate any discriminatory measures incompatible with humane requirements. It refers in particular, to provisions
which adversely affect racial or religious minorities, such provisions being contrary to the spirit of the Convention(Article 27), which forbids all adverse distinction based, in particular, on race, religion, and political opinion.”).
194

For example, Coalition Provisional Authority Order No. 7, Penal Code, §2(1) (Jun. 10, 2003) (“Without
prejudice to the continuing review of Iraqi laws, the Third Edition of the 1969 Iraqi Penal Code with amendments,
registered in Baghdad on the fifth day of Jumada I 1389 or the nineteenth day of July 1969, shall apply, with the
exception that i) Part Two, Chapter Two, Paragraph 200, and ii) Part Two, Chapter Three, Section One, Paragraph
225 are hereby suspended.”).
195

For example, Coalition Provisional Authority Order No. 7, Penal Code, §2(2) (Jun. 10, 2003) (“Legalproceedings may be brought with respect to the following offenses only with the written permission of the
Administrator of the CPA: a) Part One, Chapter Four, Paragraphs 81-84, publication offenses. b) Part Two, Chapter
One, Paragraphs 156-189, offenses against the external security of the state. c) Part Two, Chapter Two, Paragraphs788

or suspension of a penal law may also be done by the Occupying Power’s subjecting the
population of the occupied territory to additional provisions of law that are inconsistent withapplication of that penal law. 196
11.11.1.4 Continued Administration of Penal Law by Courts in the Occupied
Territory. In general, ordinary crimes that do not affect the security of the Occupying Power or
its personnel would be left to the jurisdiction of the courts in the occupied territory. 197
The continued administration of local and national penal law by the courts in occupied
territory is subject to certain modifications by the Occupying Power, such as modifications
necessary for ensuring the effective administration of justice. 198
The Occupying Power may reform or establish new criminal courts in occupied territory
as part of its authority to subject the population of the occupied territory to additional provisionsof law and its duty to restore and maintain public order. 199 In addition, the Occupying Powermay use its properly constituted, non-political military courts in occupied territory for certain
types of offenses. 200
11.11.2 Penal Provisions Enacted by the Occupying Power. As with other types of legal
provisions, the Occupying Power may subject the population of the occupied territory to penal
provisions: (1) that are essential to enable the Occupying Power to fulfill its obligations under
the GC; (2) to maintain the orderly government of the territory; and (3) to ensure the security of
the Occupying Power, of the members and property of the occupying forces or administration,and likewise of the establishments and lines of communication used by them. 201
11.11.2.1 Publication of Penal Provisions Before Coming Into Force. The penal
provisions enacted by the Occupying Power shall not come into force before they have been

190-195; 198-199; 201-219, offenses against the internal security of the state. d) Part Two, Chapter Three, Section
One, Paragraphs 223-224; 226-228, offenses against public authorities. e) Part Two, Chapter Three, Section Two,
Paragraph 229, offense of insulting a public official.”).
196

Refer to § 11.9.2.1 (Distinction Between Suspension, Repeal, Change, or Enactment of Municipal Laws).

197

1956 FM 27-10 (Change No. 1 1976) ¶370 (“Crimes not of a military nature and not affecting the occupant's
security are normally left to the jurisdiction of the local courts.”).
198

1956 FM 27-10 (Change No. 1 1976) ¶370 (“In restoring public order and safety, the occupant will continue inforce the ordinary civil and penal (criminal) laws of the occupied territory except to the extent it may be authorized
by Article 64, GC (par 369), and Article 43, HR (par. 363), to alter, suspend, or repeal such laws (see also HR art. 23(h); par. 372 herein; and GC, art. 51; par. 418 herein). These laws will be administered by the local officials as far
as practicable.”).
199

For example, Coalition Provisional Authority Order No. 13, The Central Criminal Court of Iraq (Revised),(Amended), §1(1) (Apr. 22, 2004) (“There shall be established a Central Criminal Court of Iraq (hereinafter ‘the
CCCI’), which shall sit in the city of Baghdad and in such sessions in other locations in Iraq as provided for in thisOrder. The CCCI shall have national jurisdiction over all matters set forth in Section 18.”).
200

Refer to § 11.11.3 (Properly Constituted, Non-Political Military Courts in Occupied Territory).

201

Refer to § 11.9.2 (Authority for the Occupying Power to Suspend, Repeal, or Change the Municipal Law
Applicable to Occupied Territory).

789

published and brought to the knowledge of the inhabitants in their own language. 202 When morethan one language is used by the local population, the Occupying Power may adhere to the local
practice regarding official publication of legislation. 203
The effect of these penal provisions shall not be retroactive. 204
11.11.3 Properly Constituted, Non-Political Military Courts in Occupied Territory. In
case of a breach of the penal provisions promulgated by the Occupying Power by virtue of thesecond paragraph of Article 64 of the GC, the Occupying Power may hand over the accused toits properly constituted, non-political military courts, on condition that these courts sit in theoccupied country. Courts of appeals shall preferably sit in the occupied country. 205
These courts must be regularly constituted courts affording all the judicial guarantees thatare recognized as indispensable by civilized peoples. 206 These courts must also comply withrequirements for judicial proceedings regarding protected persons in occupied territory. 207
11.11.3.1 U.S. Practice for Properly Constituted, Non-Political Military Courts.
The United States has a long history of using provost courts in occupied territory. 208 In U.S.
practice, provost courts have been used as properly constituted, non-political military courts.
202

GC art. 65 (“The penal provisions enacted by the Occupying Power shall not come into force before they havebeen published and brought to the knowledge of the inhabitants in their own language.”).
203

GC COMMENTARY 338 footnote 3 (“In countries which have more than one official language the Occupying
Power will follow local practice and publish the penal provisions it enacts, in either one or more than one language,according to whether the country’s legislation was published in one or in more than one language before theoccupation.”).
204

GC art. 65 (“The effect of these penal provisions shall not be retroactive.”).

205

GC art. 66 (“In case of a breach of the penal provisions promulgated by it by virtue of the second paragraph of
Article 64, the Occupying Power may hand over the accused to its properly constituted, non-political military courts,
on condition that the said courts sit in the occupied country. Courts of appeal shall preferably sit in the occupied
country.”).
206

Refer to § 8.16 (Criminal Procedure and Punishment).

207

Refer to § 10.29 (Judicial Proceedings Regarding Protected Persons in Occupied Territory or Internees in a
Belligerent’s Home Territory).
208

For example, EARL F. ZIEMKE, THE U.S. ARMY IN THE OCCUPATION OF GERMANY, 1944-1946, 144 (1975) (“Asinstruments for shaping relations between the population and the occupation forces, military government courts wereregarded as most important. They were expected, on the one hand, to enforce sternly the authority claimed in the
proclamation and ordinances and, on the other, to point up for the Germans the difference between nazism anddemocracy by giving fair and impartial trials to all accused. Modeled after Army courts martial, the military
government courts convened on three levels: summary (one officer), intermediate (one or more officers), andgeneral (not less than three officers). Summary courts could impose up to one year in prison and fines in marks up
to $1,000; intermediate courts, ten years in prison and fines to $10,000; and general courts, the death penalty andunlimited fines.”); WINTHROP, MILITARY LAW & PRECEDENTS 803-04 (“In the late civil war there was established at
New Orleans by the President, by an order of October 20, 1862, a civil court entitled the ‘Provisional Court ofLouisiana,’ with both civil and criminal jurisdiction. … As to its jurisdiction of crimes, this appears maintained in an
extended opinion of its judge, Hon. C.A. Peabody, in the cases of U.S. v. Reiter and Louis, charged with murder andarson. … Other Provost Courts, with a jurisdiction assimilated in general to that of justices’ or police courts, were
established from time to time by military commanders during the war;”).

790

Service regulations have addressed the use of provost courts. 209
11.11.3.2 Applicable Law in Properly Constituted, Non-Political Military Courts.
Properly constituted, non-political military courts shall apply only those provisions of law thatwere applicable prior to the offense, and that are in accordance with general principles of law, inparticular the principle that the penalty shall be proportionate to the offense. 210 The requirementthat properly constituted, non-political military courts shall apply only those provisions of law
that were applicable prior to the offense reflects the general rule that penal laws cannot be
retroactive and that there cannot be an offense or penalty unless the act in question was
punishable under the law in force at the time the act was committed. 211 The requirement thatproperly constituted, non-political military courts shall apply only those provisions of law thatare in accordance with general principles of law includes the rule that punishments must be
based on individual responsibility. 212
These courts shall also take into consideration the fact that the accused is not a national of
the Occupying Power. 213
These courts also may, at their discretion, convert a sentence of imprisonment to one ofinternment for the same period. 214
11.11.4 Limitations on Penalties for Certain, Non-Serious Offenses Solely Intended toHarm the Occupying Power. Protected persons who commit an offense that is solely intended toharm the Occupying Power, but that is not an attempt on the life or limb of members of theoccupying forces or administration, nor a grave collective danger, nor seriously damage theproperty of the occupying forces or administration, or the installations used by them, shall be
209

See, e.g., DEPARTMENT OF THE ARMY PAMPHLET 27-9-2, Military Judges’ Benchbook for Provost Courts (Oct. 4,2004).
210

GC art. 67 (“The courts shall apply only those provisions of law which were applicable prior to the offence, andwhich are in accordance with general principles of law, in particular the principle that the penalty shall be
proportionate to the offence.”); GC COMMENTARY 341 (“Article 67 relates to the military courts before which the
Occupying Power may bring accused persons under the terms of the preceding Article.”).
211

GC COMMENTARY 341 (“The objet [sic] of the provision is to limit the possibility of arbitrary action by the
Occupying Power by ensuring that penal jurisdiction is exercised on a sound basis of universally recognized legal
principles. The rule that penal laws cannot be retroactive, which is stated here in general terms, had already been
mentioned at the end of Article 65. Nullum crimen, nulla poena sine lege is a traditional principle of penal law.
There can be no offence, and consequently no penalty, if the act in question is not referred to in a law in force at thetime it was committed and subject to punishment under that law.”). Refer to § 8.16.2.2 (No Crime or Punishment
Without Prior Law); § 11.11.2.1 (Publication of Penal Provisions Before Coming Into Force).
212

GC COMMENTARY 342 (“The ‘general principles of law’, which are not set out individually here but are referred
to as a whole, include the rule concerning the personal nature of punishments, under which nobody may be punished
for an offence committed by someone else. This rule is also laid down in Article 33 mentioned above.”). Refer to§ 8.16.2.1 (Individual Penal Responsibility and No Collective Punishment); § 10.5.3.2 (Collective Penalties andMeasures of Intimidation or Terrorism).
213

GC art. 67 (“They shall take into consideration the fact that the accused is not a national of the Occupying
Power.”).
214

Refer to § 11.11.4.2 (Discretion of Non-Political, Military Courts to Convert Sentences of Imprisonment to
Sentences of Internment).

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liable to internment or simple imprisonment, provided the duration of such internment or
imprisonment is proportionate to the offense committed. 215
The minor offense must have been solely intended to harm the Occupying Power in order
to trigger these restrictions. 216 For example, offenses such as traveling without a permit orviolating exchange control regulations would not fall under this restriction, but, nonetheless, may
result in internment or simple imprisonment.
11.11.4.1 Internment or Imprisonment as the Only Measure Adopted for
Depriving Protected Persons of Liberty for Such Offenses. Furthermore, internment or
imprisonment shall, for such offenses, be the only measure adopted for depriving protected
persons of liberty. 217
Penalties that do not deprive the protected person of liberty, such as fines, or less severe
measures, such as arrest, are not addressed by this rule. 218
11.11.4.2 Discretion of Non-Political, Military Courts to Convert Sentences of
Imprisonment to Sentences of Internment. Properly constituted non-political military courts may,at their discretion, convert a sentence of imprisonment to one of internment for the same
period. 219
11.11.5 Imposing the Death Penalty for Offenses Committed by Protected Persons in
Occupied Territory. The GC provides that the penal provisions promulgated by the Occupying
Power in accordance with Articles 64 and 65 of the GC may impose the death penalty against a
protected person only in cases where the person is guilty of espionage, or serious acts ofsabotage against the military installations of the Occupying Power, or of intentional offenses thathave caused the death of one or more persons, provided that such offenses were punishable bydeath under the law of the occupied territory in force before the occupation began. 220

215

GC art. 68 (“Protected persons who commit an offence which is solely intended to harm the Occupying Power,
but which does not constitute an attempt on the life or limb of members of the occupying forces or administration,
nor a grave collective danger, nor seriously damage the property of the occupying forces or administration or the
installations used by them, shall be liable to internment or simple imprisonment, provided the duration of suchinternment or imprisonment is proportionate to the offence committed.”).
216

GC COMMENTARY 343 (“The minor offences must have been ‘solely’ intended to harm the Occupying Power.
The inclusion of the word ‘solely’ excludes acts which harm the Occupying Power indirectly.”).
217

GC art. 68 (“Furthermore, internment or imprisonment shall, for such offences, be the only measure adopted for
depriving protected persons of liberty.”).
218

GC COMMENTARY 344 (“It should be noted that internment and imprisonment are only mentioned as maximum
penalties, and less severe penalties still, such as placing under arrest or fines, may be applied in the case of persons
accused of minor offences.”).
219

GC art. 68 (“The courts provided for under Article 66 of the present Convention may at their discretion convert asentence of imprisonment to one of internment for the same period.”).
220

GC art. 68 (“The penal provisions promulgated by the Occupying Power in accordance with Articles 64 and 65
may impose the death penalty on a protected person only in cases where the person is guilty of espionage, of serious
acts of sabotage against the military installations of the Occupying Power or of intentional offences which have792

However, the United States has reserved the right to impose the death penalty inaccordance with the provisions of Article 68, paragraph 2, of the GC without regard to whether
the offenses referred to in that paragraph are punishable by death under the law of the occupied
territory at the time the occupation begins. 221 The United States expressed the position that an
Occupying Power would be unable to protect its own forces adequately against the activities ofillegal combatants unless it retained the authority to apply the death penalty, and the rule in
Article 68 of the GC would be subject to manipulation in that an adversary on the verge of being
occupied might repeal the death penalty to encourage subversive activities against an Occupying
Power. 222
The death penalty may not be pronounced against a protected person unless the attentionof the court has been particularly called to the fact that since the accused is not a national of the
Occupying Power, he or she is not bound to it by any duty of allegiance. 223
In any case, the death penalty may not be pronounced against a protected person who wasunder eighteen years of age at the time of the offense. 224
In practice, if an occupation is undertaken with coalition partners, the death penalty may
be suspended in order to address requests of these States. 225
11.11.6 Deduction From Sentences of Period Under Arrest. In all cases, the duration of
caused the death of one or more persons, provided that such offences were punishable by death under the law of theoccupied territory in force before the occupation began.”).
221

United States, Statement on Ratification of the GC, Aug. 2, 1955, 213 UNTS 384 (“The United States reserves
the right to impose the death penalty in accordance with the provisions of Article 68, paragraph 2, without regard towhether the offenses referred to therein are punishable by death under the law of the occupied territory at the time
the occupation begins.”).
222

SENATE EXECUTIVE REPORT 84-9, Geneva Conventions for the Protection of War Victims: Report of theCommittee on Foreign Relations on Executives D, E, F, and G, 82nd Congress, First Session, 23 (Jun. 27, 1955)(“Adoption of this limitation upon the death penalty was due to the efforts of a number of countries, some of which
had experienced whole-sale imposition of this extreme measure under military occupation, and others of which haveabolished the death penalty in their legal systems. Our own Government, while willing to agree not to impose it
except in the three categories of cases listed in article 68, was unable to accept the proviso further limiting its use.
Along with the United Kingdom, we took the position that an occupying power would be unable to protect its own
forces adequately against the activities of illegal combatants unless it retained the power to take drastic legal action
to meet the situation. From a practical standpoint, moreover, the limitation in article 68 would permit an enemy on
the point of being dislodged from the national territory to repeal a death penalty law previously applicable, thus
opening the way to all kinds of subversive activities against the occupant which would not be punishable bydeath.”).
223

GC art. 68 (“The death penalty may not be pronounced against a protected person unless the attention of the court
has been particularly called to the fact that since the accused is not a national of the Occupying Power, he is notbound to it by any duty of allegiance.”). Compare § 9.28.6 (Death Sentences); § 10.29.5 (Death Sentences).
224

GC art. 68 (“In any case, the death penalty may not be pronounced against a protected person who was undereighteen years of age at the time of the offense.”).
225

For example, Coalition Provision Authority Order No. 7, Penal Code, §3(1) (Jun. 10, 2003) (“Capital
punishment is suspended. In each case where the death penalty is the only available penalty prescribed for an
offense, the court may substitute the lesser penalty of life imprisonment, or such other lesser penalty as provided forin the Penal Code.”).

793

the period during which a protected person accused of an offense is under arrest awaiting trial or
punishment shall be deducted from any period of imprisonment awarded. 226
11.11.7 Limitation on Criminal Jurisdiction With Respect to Pre-Occupation Acts. The
GC provides for certain limitations on the criminal jurisdiction of the Occupying Power withrespect to the pre-occupation acts of protected persons and of nationals of the Occupying Power,
who, before the outbreak of hostilities, have sought refuge in the territory of the occupied State.
11.11.7.1 Pre-Occupation Acts of Protected Persons. Protected persons shall not
be arrested, prosecuted, or convicted by the Occupying Power for acts committed or opinions
expressed before the occupation, or during a temporary interruption thereof, with the exceptionof breaches of the laws and customs of war. 227
11.11.7.2 Protection of Nationals of the Occupying Power Who, Before theOutbreak of Hostilities, Have Sought Refuge in the Territory of the Occupied State. Nationals of
the Occupying Power who, before the outbreak of hostilities, have sought refuge in the territoryof the occupied State, shall not be arrested, prosecuted, convicted, or deported from the occupied
territory, except for offenses committed after the outbreak of hostilities, or for offenses undercommon law committed before the outbreak of hostilities that, according to the law of theoccupied State, would have justified extradition in time of peace. 228
Thus, although protected persons may not be forcibly transferred or deported to anothercountry, 229 nationals of the Occupying Power may be involuntarily removed under certain
circumstances. 230
This rule is an exception to the general principle that a State’s own nationals are excluded
from the protection of the GC. 231
11.11.8 Disposition of Accused and Convicted Protected Persons Upon the Close of
Occupation. Protected persons who have been accused of offenses or convicted by courts in
226

GC art. 69 (“In all cases, the duration of the period during which a protected person accused of an offence isunder arrest awaiting trial or punishment shall be deducted from any period of imprisonment awarded.”).
227

GC art. 70 (“Protected persons shall not be arrested, prosecuted or convicted by the Occupying Power for acts
committed or for opinions expressed before the occupation, or during a temporary interruption thereof, with the
exception of breaches of the laws and customs of war.”).
228

GC art. 70 (“Nationals of the Occupying Power who, before the outbreak of hostilities, have sought refuge in the
territory of the occupied State, shall not be arrested, prosecuted, convicted or deported from the occupied territory,
except for offences committed after the outbreak of hostilities, or for offences under common law committed before
the outbreak of hostilities which, according to the law of the occupied State, would have justified extradition in timeof peace.”).
229

Refer to § 11.12.3 (Prohibition Against Forcible Transfers and Deportations).

230

GC COMMENTARY 351-52 (“When criminals again fall into the hands of their State of origin, as a result of theoccupation of the territory in which they are living, they must answer for their actions; the occupying authorities
may therefore arrest them, take them back to their home country and bring them before its courts, provided the lawof the occupied State would have justified their extradition in time of peace.”).
231

Refer to § 10.3.3.1 (A State’s Own Nationals).

794

occupied territory shall be handed over at the close of occupation, with the relevant records, tothe authorities of the liberated territory. 232
Pending their transfer to such authorities, such protected persons continue to be protectedby the GC because protected persons whose release, repatriation, or re-establishment may takeplace after such dates continue to benefit from the protections of the GC. 233
The practical arrangements for the handing over of such protected persons will depend on
the circumstances, including whether the liberation of occupied territory is accompanied byfighting and whether the local administration is able to function. 234
If occupying forces will remain in occupied territory after the end of occupation, it ispermissible, with the consent of the formerly occupied State, for the occupying forces to retain
custody, in the formerly occupied territory, of protected persons accused or convicted ofoffenses.
11.12 MOVEMENT OF PERSONS IN OCCUPIED TERRITORY
11.12.1 Authority of the Occupying Power to Restrict Freedom of Movement. As ageneral matter, the Occupying Power assumes the authority of the State whose territory is
occupied in controlling the movement of persons within the occupied territory, as well as the
movement of persons entering and exiting occupied territory. For example, private persons,members of non-governmental organizations, or representatives of foreign States or internationalorganizations seeking to enter occupied territory generally would not be able to do so withoutauthorization from the Occupying Power.
The Occupying Power may withdraw from individuals the right to change their residence,
restrict freedom of internal movement, forbid visits to certain districts, prohibit emigration andimmigration by protected persons who are nationals of the State whose territory is occupied, andrequire that all individuals carry identification documents. 235
11.12.2 Departure of Protected Persons Who Are Not Nationals of the State Whose
Territory Is Occupied. Protected persons who are not nationals of the State whose territory is
occupied may avail themselves of the right to leave occupied territory subject to the provisionsof Article 35 of the GC, and decisions thereon shall be taken according to the procedure that the232

GC art. 77 (“Protected persons who have been accused of offenses or convicted by the courts in occupied
territory, shall be handed over at the close of occupation, with the relevant records, to the authorities of the liberated
territory.”).
233

Refer to § 10.3.4 (Commencement and Duration of Protected Person Status).

234

GC COMMENTARY 367 (“The Convention does not lay down any rules concerning the practical arrangements forhanding over detainees, because they will depend on circumstances and on whether the liberation of the occupied
territory is accompanied by fighting or not, and whether the local administration has been able to continue tofunction or not.”).
235
1956 FM 27-10 (Change No. 1 1976) ¶375 (“The occupant may withdraw from individuals the right to change
their residence, restrict freedom of internal movement, forbid visits to certain districts, prohibit emigration andimmigration (but see GC art. 48; par. 381 herein), and require that all individuals carry identification documents.”).

795

Occupying Power shall establish in accordance with the Article 35 of the GC. 236
Article 35 of the GC sets forth rules regarding the departure of protected persons from thehome territory of a belligerent State and provides protected persons with a right to depart. But,
Article 35 allows a belligerent to prevent such departure if such departure is contrary to thebelligerent’s national interests, and Article 35 specifies certain procedural requirements. 237
Thus, for example, an Occupying Power may prevent the departure of protected persons
who are not nationals of the State whose territory is occupied if such departure is contrary to the
Occupying Power’s national interests. The Occupying Power must comply with therequirements of Article 35 of the GC if it does so (e.g., providing for the reconsideration of its
refusal of permission to depart by an appropriate court or administrative board). 238
11.12.3 Prohibition Against Forcible Transfers and Deportations. Individual or massforcible transfers, as well as deportations of protected persons from occupied territory to theterritory of the Occupying Power, or of any other country, occupied or not, are prohibited,regardless of their motive. 239
The unlawful deportation or transfer of protected persons in violation of this rule
constitutes a grave breach of the GC. 240
11.12.3.1 Exception for Certain Transfers and Evacuations. Nevertheless, theOccupying Power may undertake total or partial evacuation of a given area if required for the
security of the population or for imperative military reasons. Such evacuations may not involvethe displacement of protected persons outside the bounds of the occupied territory except when,for material reasons, it is impossible to avoid such displacement. Persons thus evacuated shall betransferred back to their homes as soon as hostilities in the area in question have ceased. 241
For example, in some cases, the whole of occupied territory, such as an island, may be
236

GC art. 48 (“Protected persons who are not nationals of the Power whose territory is occupied, may avail
themselves of the right to leave the territory subject to the provisions of Article 35, and decisions thereon shall betaken according to the procedure which the Occupying Power shall establish in accordance with the said Article.”).
237

Refer to § 10.8.2 (Departures of Protected Persons From a Belligerent’s Home Territory).

238

GC COMMENTARY 277 (“For the procedure to be followed, Article 48 refers expressly to Article 35. Persons
who wish to leave the occupied territory therefore enjoy the same safeguards as protected persons living in the
territory of a party to the conflict, i.e. they will have the right to appeal to a court or administrative board and to ask
for a Protecting Power to intervene. On the other hand, under paragraph 1 of Article 35, the Occupying Power isentitled to object to the departure of a protected person when its national interests make this absolutely necessary.”).
239

GC art. 49 (“Individual or mass forcible transfers, as well as deportations of protected persons from occupied
territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited,regardless of their motive.”).
240

Refer to § 18.9.3.1 (Acts Constituting Grave Breaches).

241

GC art. 49 (“Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the
security of the population or imperative military reasons so demand. Such evacuations may not involve thedisplacement of protected persons outside the bounds of the occupied territory except when for material reasons it is
impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as
hostilities in the area in question have ceased.”).

796

dangerous, and it may be safer for the protected person to be transferred from occupied
territory. 242
The Occupying Power undertaking such transfers or evacuations shall ensure, to thegreatest practicable extent: (1) that proper accommodation is provided to receive the protected
persons; (2) that evacuations or transfers are effected with satisfactory conditions of hygiene,
health, safety, and nutrition; and (3) that members of the same family are not separated. 243
11.12.3.2 Transfer Prohibition Only Applicable to Protected Persons. Persons in
occupied territory who do not receive protected person status under the GC are not subject to thisprohibition on forcible transfers. 244 For example, POWs may be transferred from occupied
territory to POW camps in the home territory of a belligerent. 245 Similarly, a person who is notentitled to protected person status, such as a national of a neutral or non-belligerent State who
travels to an occupied State to fight the Occupying Power, would not be covered by thisprohibition. 246
11.12.3.3 Notification of Transfers and Evacuations to the Protecting Power. The
Protecting Power shall be informed of any transfers and evacuations as soon as they have takenplace. 247
11.12.3.4 Voluntary Transfers Not Prohibited. Only forcible transfers areprohibited; voluntary transfers from occupied territory, such as voluntary transfers of persons
belonging to a minority group that had been persecuted by the occupied State, would not be
prohibited. 248

242

II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 759 (“As regards the proposed
suppression of the words ‘except in cases of physical necessity’, there were cases where, owing to the limited size ofthe territory, it was physically impossible to evacuate the population otherwise than to places outside the occupied
territory. That was the case, for example, in the islands of Wake and Guam, where the whole of the territory could
be considered as dangerous.”).
243

GC art. 49 (“The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest
practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are
effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are
not separated.”).
244

Refer to § 10.3.2 (Persons Who Receive Protected Person Status Under the GC); § 10.3.3 (Categories of
Nationals Specifically Excluded From the Definition of Protected Person Under the GC).
245

Refer to § 9.11.3.3 (Location Outside the Theater of Military Operations).

246

Refer to § 10.3.2.1 (“Find Themselves”).

247

GC art. 49 (“The Protecting Power shall be informed of any transfers and evacuations as soon as they have takenplace.”). Consider AP I art. 78 (“Any such evacuation [of children] shall be supervised by the Protecting Power inagreement with the Parties concerned, namely the Party arranging the evacuation, the Party receiving the children
and any Parties whose nationals are being evacuated.”).
248

II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 827 (“Although there was generalunanimity in condemning such deportations as took place during the recent war, the phrase at the beginning of
Article 45 caused some trouble in view of the difficulty in reconciling exactly the ideas expressed with the various
terms in French, English and Russian. In the end the Committee have decided on a wording which prohibits
individual or mass forcible removals as well as deportations of protected persons from occupied territory to any

797

11.12.4 General Prohibition Against Detaining Protected Persons in Dangerous Areas.
The Occupying Power shall not detain protected persons in an area particularly exposed to thedangers of war unless the security of the population or imperative military reasons so demand. 249
11.12.5 Prohibition Against Deporting or Transferring the Occupied State’s Civilian
Population Into Occupied Territory. The Occupying Power shall not deport or transfer parts of
its own civilian population into the territory it occupies. 250
11.13 PROTECTION OF CHILDREN IN OCCUPIED TERRITORY
Article 50 of the GC provides for certain duties of an Occupying Power with respect tochildren in occupied territory. “Children” for the purposes of Article 50 of the GC and its
obligations with respect to the protection of children in occupied territory may be understood
generally to refer to children under fifteen years of age. 251
Other duties that are not specific to occupied territory exist with regard to children. 252
11.13.1 Obligation With Respect to the Care and Education of Children. The Occupying
Power shall, with the cooperation of the national and local authorities, facilitate the proper
working of all institutions devoted to the care and education of children. 253 This obligation goesbeyond merely not interfering with such institutions, but also includes the affirmative duty toother country, but which permits voluntary transfers.”). See also id. at 759 (“Mr. CLATTENBURG (United States ofAmerica) believed that the addition (suggested by the Soviet Delegation) of the words ‘any other transfer’ would
have hampered the evacuation of the religious and political minorities which the Allies, on entering Germany, haddiscovered in labour and concentration camps.”).
249

GC art. 49 (“The Occupying Power shall not detain protected persons in an area particularly exposed to thedangers of war unless the security of the population or imperative military reasons so demand.”). Consider AP I art.
78 (“In each case [of the evacuation of children], all Parties to the conflict shall take all feasible precautions to avoid
endangering the evacuation.”).
250

GC art. 49 (“The Occupying Power shall not deport or transfer parts of its own civilian populations into theterritory it occupies.”).
251

GC COMMENTARY 285 (“What should the word ‘children’ be considered to mean for the purposes of Article 50?
Although the conception of ‘children’ has an important place in the Convention there is, as has already been pointed
out, no general definition of the word. On the other hand the Convention has fixed various age limits in theprovisions prescribing preferential treatment for children: fifteen years of age, in Articles 14 (hospital and safetyzones), 23 (consignment of relief supplies), 24 and 38 (5) (measures relating to child welfare); twelve years of age in
Article 24, paragraph 3 (identification); and, as will be seen, eighteen years of age in Articles 51, paragraph 2(compulsory labour) and 68, paragraph 4 (death penalty). Article 50, unlike those just mentioned, does not specify
any age limit for the children to whom it refers, except in the last paragraph. Since, however, the establishments andinstitutions which paragraph 1 is intended to protect are generally for children and young people up to the age offifteen, that appears to be a reasonable upper limit and might therefore serve here as a criterion. The application of
Article 50, however, cannot depend on any formal and often too rigid rule; its application must be governed by the
degree of development of the physical and mental faculties of the persons concerned; it may therefore be applied toyoung people until such time as they attain their majority. The meaning given to the term ‘children’ will also, ofcourse, depend on the legislation of the occupied country, particularly in respect of identification.”).
252

Refer to § 4.20 (Children).

253

GC art. 50 (“The Occupying Power shall, with the cooperation of the national and local authorities, facilitate theproper working of all institutions devoted to the care and education of children.”).

798

support them when the responsible authorities of the country fail to do so. 254
Should the local institutions be inadequate for the purpose, the Occupying Power shallmake arrangements for the maintenance and education – if possible, by persons of their own
nationality, language, and religion – of children who are orphaned or separated from their parents
as a result of the war, and who cannot be adequately cared for by a near relative or friend. 255
11.13.2 Obligation With Respect to the Identification of Children. The Occupying Powershall take all necessary steps to facilitate the identification of children and the registration of
their parentage. 256
A special section of the National Protected Person Information Bureau set up inaccordance with Article 136 of the GC shall be responsible for taking all necessary steps to
identify children whose identity is in doubt. 257
11.13.3 Prohibition Against Changing the Personal Status of Children or Enlisting Them.
The Occupying Power may not, in any case, change the personal status of children, nor enlist
them in formations or organizations subordinate to it. 258
11.13.4 Obligation Not to Hinder Preferential Measures for Children and Mothers. The
Occupying Power shall not hinder the application of any preferential measures in regard to food,medical care, and protection against the effects of war that may have been adopted prior to theoccupation in favor of children under fifteen years, expectant mothers, and mothers of children
under seven years. 259
11.14 FOOD AND MEDICAL SUPPLIES FOR THE CIVILIAN POPULATION
11.14.1 Duty of Ensuring the Food and Medical Supplies for the Population. To thefullest extent of the means available to it, the Occupying Power has the duty of ensuring thesufficiency of food and medical supplies for the population; it should, in particular, bring in the254

GC COMMENTARY 286 (“The Occupying Powers must, with the co-operation of the national and local
authorities, facilitate the proper working of children's institutions. That means that the occupying authorities arebound not only to avoid interfering with their activities, but also to support them actively and even encourage them
if the responsible authorities of the country fail in their duty.”).

255

GC art. 50 (“Should the local institutions be inadequate for the purpose, the Occupying Power shall makearrangements for the maintenance and education, if possible by persons of their own nationality, language andreligion, of children who are orphaned or separated from their parents as a result of the war and who cannot beadequately cared for by a near relative or friend.”).
256

GC art. 50 (“The Occupying Power shall take all necessary steps to facilitate the identification of children and theregistration of their parentage.”).
257

Refer to § 10.31.2.5 (Special Section for the Identification of Children in Occupied Territory).

258

GC art. 50 (“The Occupying Power shall take all necessary steps to facilitate the identification of children and theregistration of their parentage. It may not, in any case, change their personal status, nor enlist them in formations ororganizations subordinate to it.”).
259
GC art. 50 (“The Occupying Power shall not hinder the application of any preferential measures in regard tofood, medical care and protection against the effects of war, which may have been adopted prior to the occupation infavour of children under fifteen years, expectant mothers, and mothers of children under seven years.”).

799

necessary foodstuffs, medical stores, and other articles if the resources of the occupied territory
are inadequate. 260 Other articles may be understood to include all urgently required goods that
may be essential to the “life of the territory.” 261
11.14.2 Limitation on Requisition of Food and Medical Supplies. The Occupying Power
may not requisition foodstuffs, articles, or medical supplies available in the occupied territory,
except for use by the occupation forces and administration personnel, and then only if therequirements of the civilian population have been taken into account. 262 Subject to theprovisions of other international conventions, the Occupying Power shall make arrangements toensure that fair value is paid for any requisitioned goods. 263
11.14.3 Verification of the State of Food and Medical Supplies by the Protecting Power.
The Protecting Power shall, at any time, be at liberty to verify the state of the food and medical
supplies in occupied territories, except where temporary restrictions are made necessary byimperative military requirements. 264
11.15 PUBLIC HEALTH AND HYGIENE
11.15.1 General Duty With Respect to Public Health. To the fullest extent of the means
available to it, the Occupying Power has the duty of ensuring and maintaining, with thecooperation of national and local authorities, medical and hospital establishments, medical
services, and public health and hygiene in the occupied territory, with particular reference to the260

GC art. 55 (“To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring thefood and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical storesand other articles if the resources of the occupied territory are inadequate.”).
261

1956 FM 27-10 (Change No. 1 1976) ¶384 (“b. Other Articles To Be Supplied. The other articles which theoccupant is required to provide under the above provision include all urgently required, goods which may beessential to the life of the territory.”). See also GC COMMENTARY 309-10 (“Article 55 is concerned exclusively with
the question of food and medical supplies for the population of an occupied territory. … Supplies for the population
are not limited to food, but include medical supplies and any article necessary to support life.”).
262

GC art. 55 (“The Occupying Power may not requisition foodstuffs, articles or medical supplies available in theoccupied territory, except for use by the occupation forces and administration personnel, and then only if therequirements of the civilian population have been taken into account.”). Consider AP I art. 14 (“Limitations onrequisition of civilian medical units – … 2. The Occupying Power shall not, therefore, requisition civilian medical
units, their equipment, their materiel or the services of their personnel, so long as these resources are necessary forthe provision of adequate medical services for the civilian population and for the continuing medical care of any
wounded and sick already under treatment. 3. Provided that the general rule in paragraph 2 continues to be observed,
the Occupying Power may requisition the said resources, subject to the following particular conditions: (a) that theresources necessary for the adequate and immediate medical treatment of the wounded and sick members of thearmed forces of the Occupying Power or of prisoners of war; (b) that the requisition continues only while suchnecessity exists; and (c) that immediate arrangements are made to ensure that the medical needs of the civilian
population, as well as those of any wounded and sick under treatment who are affected by the requisition, continue
to be satisfied.”).
263

GC art. 55 (“Subject to the provisions of other international Conventions, the Occupying Power shall makearrangements to ensure that fair value is paid for any requisitioned goods.”).
264
GC art. 55 (“The Protecting Power shall, at any time, be at liberty to verify the state of the food and medical
supplies in occupied territories, except where temporary restrictions are made necessary by imperative militaryrequirements.”).

800

adoption and application of the prophylactic and preventive measures necessary to combat the
spread of contagious diseases and epidemics. 265 The responsibility for providing andmaintaining health services falls primarily on the national and local authorities, but where such
authorities are unable to provide adequately for the health needs of the civilian population, theOccupying Power then has the duty described above. 266
11.15.2 Respect for the Work of Civilian Medical Personnel. Medical personnel of all
categories must be allowed to carry out their duties. 267 “Medical personnel of all categories”
includes a wide range of persons engaged in medical work. 268 It includes even those who are notaffiliated with civilian hospitals who qualify for protection under Article 20 of the GC. 269
11.15.3 Recognition of New Hospitals, Medical Personnel, and Transports. If new
hospitals are set up in occupied territory and if the competent organs of the occupied State are
not operating there, the occupying authorities must, if necessary, grant them the recognition
provided for in Article 18 of the GC. 270 This recognition allows the civilian hospitals to showthat they are civilian hospitals and that the buildings that they occupy are not used for any
purpose that would deprive these hospitals of protection. 271 In similar circumstances, theoccupying authorities must also grant recognition to hospital personnel and transport vehicles
under the provisions of Articles 20 and 21 of the GC. 272 This recognition also allows such
265

GC art. 56 (“To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring andmaintaining, with the cooperation of national and local authorities, the medical and hospital establishments andservices, public health and hygiene in the occupied territory, with particular reference to the adoption andapplication of the prophylactic and preventive measures necessary to combat the spread of contagious diseases andepidemics.”).
266

GC COMMENTARY 313-14 (“[T]here can be no question of making the Occupying Power alone responsible forthe whole burden of organizing hospitals and health services and taking measures to control epidemics. The task isabove all one for the competent services of the occupied country itself. It is possible that in certain cases thenational authorities will be perfectly well able to look after the health of the population; in such cases the Occupying
Power will not have to intervene; it will merely avoid hampering the work of the organizations responsible for thetask. In most cases, however, the invading forces will be occupying a country suffering severely from the effects ofwar; hospitals and medical services will be disorganized, without the necessary supplies and quite unable to meet theneeds of the population. The Occupying Power must then, with the co-operation of the authorities and to the fullest
extent of the means available to it, ensure that hospital and medical services can work properly and continue to doso.”).
267

GC art. 56 (“Medical personnel of all categories shall be allowed to carry out their duties.”).

268

GC COMMENTARY 314 (“‘Medical personnel of all categories’ should be taken to mean all people engaged in abranch of medical work: doctors, surgeons, dentists, pharmacists, midwives, medical orderlies and nurses, stretcher
bearers, ambulance drivers, etc., whether such persons are or are not attached to a hospital. On that point theprovision differs from Article 20 of the Convention, which refers only to hospital staff, who are alone authorized towear the armlet bearing the red cross emblem.”).
269

Refer to § 7.17.4 (Protection of Civilian Hospital Personnel).

270

GC art. 56 (“If new hospitals are set up in occupied territory and if the competent organs of the occupied Stateare not operating there, the occupying authorities shall, if necessary, grant them the recognition provided for in
Article 18. In similar circumstances, the occupying authorities shall also grant recognition to hospital personnel andtransport vehicles under the provisions of Articles 20 and 21.”).
271

Refer to § 7.17.2.1 (State-Issued Certificates for Civilian Hospitals).

272

GC art. 56 (“In similar circumstances, the occupying authorities shall also grant recognition to hospital personnel
and transport vehicles under the provisions of Articles 20 and 21.”).

801

personnel and vehicles to display their entitlement to protection. 273
11.15.4 Consideration of Cultural Traditions of the Population in Adopting Public Health
Measures. In adopting measures of health and hygiene, and in their implementation, theOccupying Power must take into consideration the moral and ethical susceptibilities of the
population of the occupied territory. 274 The Occupying Power should respect the sentiments andtraditions of the population, and should not introduce new methods if they are liable to cause
deep disquiet among the population. 275
11.15.5 Requisition of Civilian Hospitals. The Occupying Power may requisition civilian
hospitals only temporarily and only in cases of urgent necessity for the care of military wounded
and sick, and then on the condition that suitable arrangements are made in due time for the careand treatment of the hospital’s current patients, and for the future needs of the civilian population
for hospital accommodation. The material and stores of civilian hospitals cannot be
requisitioned so long as they are necessary for the needs of the civilian population. 276
If the requisition of medical supplies is required for the occupying force, they must takethe needs of the civilian population into account and resupply the materials as soon as
possible. 277
11.16 SPIRITUAL ASSISTANCEThe Occupying Power shall permit ministers of religion to give spiritual assistance to themembers of their religious communities. The Occupying Power shall also accept consignmentsof books and articles required for religious needs and shall facilitate their distribution in occupied
territory. 278
Religious assistance addressed by the GC, however, does not include activities that are a273

Refer to § 7.17.4 (Protection of Civilian Hospital Personnel); § 7.18 (Land and Sea Civilian Hospital Convoys).

274

GC art. 56 (“In adopting measures of health and hygiene and in their implementation, the Occupying Power shalltake into consideration the moral and ethical susceptibilities of the population of the occupied territory.”).
275

GC COMMENTARY 315 (“The purpose of this provision is to ensure respect for sentiments and traditions, whichmust not be disregarded. The occupation must not involve the sudden introduction of new methods, if they are
liable to cause deep disquiet among the population.”).
276

GC art. 57 (“The Occupying Power may requisition civilian hospitals only temporarily and only in cases ofurgent necessity for the care of military wounded and sick, and then on condition that suitable arrangements are
made in due time for the care and treatment of patients and the needs of the civilian population for hospital
accommodation. The material and stores of civilian hospitals cannot be requisitioned so long as they are necessary
for the needs of the civilian population.”).
277

GC COMMENTARY 318 (“When so doing, it will take the needs of the population into account and it will replace
the material used as soon as possible, usually by importing medical supplies in accordance with Article 55.”).
278
GC art. 58 (“The Occupying Power shall permit ministers of religion to give spiritual assistance to the membersof their religious communities. The Occupying Power shall also accept consignments of books and articles required
for religious needs and shall facilitate their distribution in occupied territory.”).

802

pretext for political agitation against the Occupying Power. 279
11.17 RELIEF EFFORTS AND CONSIGNMENTS
Special rules address relief efforts in occupied territory. Other rules address relief efforts
outside the context of occupation. 280
11.17.1 Collective Relief. If the whole or part of the population of an occupied territory
is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of theaffected population, and shall facilitate them by all the means at its disposal. Such schemes,
which may be undertaken either by States or by impartial humanitarian organizations such as theICRC, shall consist, in particular, of the provision of consignments of foodstuffs, medical
supplies, and clothing. 281
All Parties to the GC shall permit the free passage of these consignments and shallguarantee their protection. 282
A State granting free passage to consignments on their way to territory occupied by anadverse party to the conflict shall, however, have the right to search the consignments, toregulate their passage according to prescribed times and routes, and to be reasonably satisfied(through the Protecting Power) that these consignments are to be used for the relief of the needy
population, and are not to be used for the benefit of the Occupying Power. 283
11.17.1.1 Diversion of Relief Consignments. The Occupying Power shall in noway whatsoever divert relief consignments from the purpose for which they are intended, except
in cases of urgent necessity, in the interests of the population of the occupied territory, and with

279

GC COMMENTARY 318 (“[R]eligious assistance must in no case serve as a pretext for political agitation against
the Occupying Power. Should occasion arise, the Occupying Power would be entitled to take appropriate action,
since the provision under discussion authorizes only spiritual assistance, and not activities which have nothing to dowith religion.”).
280

Refer to § 5.19.3 (Passage of Relief Consignments); § 8.10.1 (Receipt of Individual or Collective Relief); § 9.20
(POW Correspondence and Relief Shipments); § 10.23 (Internee Correspondence and Relief Shipments).
281

GC art. 59 (“If the whole or part of the population of an occupied territory is inadequately supplied, theOccupying Power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all themeans at its disposal. Such schemes, which may be undertaken either by States or by impartial humanitarianorganizations such as the International Committee of the Red Cross, shall consist, in particular, of the provision of
consignments of foodstuffs, medical supplies and clothing. All Contracting Parties shall permit the free passage ofthese consignments and shall guarantee their protection.”).
282

GC art. 59 (“All Contracting Parties shall permit the free passage of these consignments and shall guarantee theirprotection.”).
283

GC art. 59 (“A Power granting free passage to consignments on their way to territory occupied by an adverse
Party to the conflict shall, however, have the right to search the consignments, to regulate their passage according toprescribed times and routes, and to be reasonably satisfied through the Protecting Power that these consignments areto be used for the relief of the needy population and are not to be used for the benefit of the Occupying Power.”).

803

the consent of the Protecting Power. 284
11.17.1.2 Distribution of Collective Relief Consignments. The distribution ofcollective relief consignments referred to in Articles 59 and 60 of the GC shall be carried out
with the cooperation and under the supervision of the Protecting Power. This duty may also bedelegated, by agreement between the Occupying Power and the Protecting Power, to a neutral
State, the ICRC, or any other impartial humanitarian body. 285
The Occupying Power shall facilitate the rapid distribution of these consignments. 286 For
example, it may be necessary for the occupation authorities to remove administrative
impediments (e.g., granting permits) to relief organizations distributing consignments. 287
11.17.1.3 Charges, Taxes, and Customs Duties on Collective Relief Consignments
for Occupied Territories. Collective relief consignments referred to in Articles 59 and 60 of the
GC shall be exempt in occupied territory from all charges, taxes, or customs duties unless suchcharges, taxes, or customs duties are necessary in the interests of the economy of the territory. 288
All Parties to the GC shall endeavor to permit the transit and transport, free of charge, of such
relief consignments on their way to occupied territories. 289
11.17.2 Individual Relief Consignments. Subject to imperative reasons of security,protected persons in occupied territories shall be permitted to receive individual relief
consignments sent to them. 290
An individual relief consignment is a shipment that is addressed to a particular person. 291
284

GC art. 60 (“The Occupying Power shall in no way whatsoever divert relief consignments from the purpose forwhich they are intended, except in cases of urgent necessity, in the interests of the population of the occupied
territory and with the consent of the Protecting Power.”).

285

GC art. 61 (“The distribution of the relief consignments referred to in the foregoing Articles shall be carried out
with the cooperation and under the supervision of the Protecting Power. This duty may also be delegated, byagreement between the Occupying Power and the Protecting Power, to a neutral Power, to the International
Committee of the Red Cross or to any other impartial humanitarian body.”).
286

GC art. 61 (“The Occupying Power shall facilitate the rapid distribution of these consignments.”).

287

GC COMMENTARY 328 (“The second sentence in paragraph 2 says that the Occupying Power is to facilitate therapid distribution of the consignments. The effect of a relief scheme will depend above all on the time theconsignments take to reach the recipients; it is therefore important for the occupation authorities to take all necessary
steps to facilitate their despatch and distribution (cutting out red tape, making transport available, granting permits
allowing freedom of movement, facilities of all kinds for the staff of the distributing and supervising bodies, etc.).”).
288

GC art. 61 (“Such consignments shall be exempt in occupied territory from all charges, taxes or customs duties
unless these are necessary in the interests of the economy of the territory.”).
289

GC art. 61 (“All Contracting Parties shall endeavour to permit the transit and transport, free of charge, of such
relief consignments on their way to occupied territories.”).
290

GC art. 62 (“Subject to imperative reasons of security, protected persons in occupied territories shall be permitted
to receive the individual relief consignments sent to them.”).
291

GC COMMENTARY 329 (“Unlike the three previous Articles which refer to relief supplies for a group of protected
persons (collective consignments), Article 62 deals with consignments addressed to individuals (individual
consignments).”).

804

The occupation authorities may limit or temporarily forbid the entry of individual relief
supplies for imperative reasons of security, such as if the volume of relief consignments preventssecurity screening. 292
11.17.3 Continuing Responsibilities of the Occupying Power. Relief consignments shallin no way relieve the Occupying Power of any of its responsibilities under Articles 55, 56, and
59 of the GC. 293 The responsibilities of the Occupying Power under Articles 55, 56, and 59 of
the GC relate to ensuring the provision of food, medical supplies, and medical services to the
population. 294
11.17.4 National Red Cross or Red Crescent Societies and Other Relief Organizations.
Subject to temporary and exceptional measures imposed for urgent reasons of security by the
Occupying Power:•recognized National Red Cross (Red Crescent, Red Lion and Sun) Societies shall be able
to pursue their activities in accordance with Red Cross principles, as prescribed by theInternational Red Cross Conferences. Other relief societies shall be permitted to continue
their humanitarian activities under similar conditions;•

the Occupying Power may not require any changes in the personnel or structure of thesesocieties that would prejudice these activities. 295

The same principles shall apply to the activities and personnel of special organizations ofa non-military character that already exist or that may be established for the purpose of ensuring
the living conditions of the civilian population by the maintenance of the essential public utility
services, by the distribution of relief, and by the organization of rescues. 296

292

GC COMMENTARY 329 (“[T]he occupation authorities have the right to refuse to receive individual relief
consignments if imperative reasons of security so demand. A similar reservation in regard to collective relief was
put forward during the preparatory work on Article 59, but was not adopted. The reservation was kept in Article 62
in order that efficient verification should not be rendered impossible by the arrival of huge quantities of individual
parcels. Under such circumstances the Occupying Power could avoid importing articles detrimental to its security
by limiting or temporarily forbidding the entry of individual relief supplies.”).
293

GC art. 60 (“Relief consignments shall in no way relieve the Occupying Power of any of its responsibilities under
Articles 55, 56 and 59.”).
294

Refer to § 11.14 (Food and Medical Supplies for the Civilian Population); § 11.15 (Public Health and Hygiene);§ 11.17.1 (Collective Relief).
295

GC art. 63 (“Subject to temporary and exceptional measures imposed for urgent reasons of security by the
Occupying Power: (a) recognized National Red Cross (Red Crescent, Red Lion and Sun) Societies shall be able topursue their activities in accordance with Red Cross principles, as defined by the International Red Cross
Conferences. Other relief societies shall be permitted to continue their humanitarian activities under similar
conditions; (b) the Occupying Power may not require any changes in the personnel or structure of these societies,
which would prejudice the aforesaid activities.”).
296

GC art. 63 (“The same principles shall apply to the activities and personnel of special organizations of a nonmilitary character, which already exist or which may be established, for the purpose of ensuring the living conditionsof the civilian population by the maintenance of the essential public utility services, by the distribution of relief andby the organization of rescues.”).

805

11.18 ENEMY PROPERTY DURING OCCUPATION
Pillage is prohibited. Enemy property in occupied territory may not be seized or
destroyed unless imperatively demanded by the necessities of war. The Occupying Power may
take certain control measures with respect to property in occupied territory. Other rules apply tothe treatment of public enemy property and private enemy property in occupied territory.
11.18.1 Prohibition Against Pillage in Occupied Territory. Pillage is forbidden. 297 In
addition to this specific prohibition in the context of occupied territory, pillage is prohibited as a
general matter. 298
11.18.2 Seizure or Destruction of Property During Occupation – Application of theMilitary Necessity Standard. The general rule that enemy property may not be seized or
destroyed unless imperatively demanded by the necessities of war also applies to property during
the occupation of enemy territory. 299 In particular, any destruction by the Occupying Power ofreal (immovable) or personal (movable) property belonging individually or collectively toprivate persons, to the State of the occupied territory, to other public authorities, or to social orcooperative organizations, is prohibited, except where such destruction is rendered absolutely
necessary by military operations. 300
11.18.2.1 Assessment of Military Necessity for Seizure or Destruction. The
evaluation of whether destruction of property is militarily necessary in the context of occupationis undertaken by applying the standards that also are applied in the context of combat
operations. 301 For example, the evaluation of whether the destruction of property is militarily
necessary is made by the responsible commander or other authority of the Occupying Power. 302
However, such assessment must be made in good faith based on the information available at thetime. 30311.18.2.2 Temporary Possession for Direct Military Use. An Occupying Power
may always take temporary possession of enemy property (real or personal, and public or
297

HAGUE IV REG. art. 47 (“Pillage is formally forbidden.”).

298

Refer to § 5.17.4 (Pillage Prohibited).

299

Refer to § 5.17.2 (Enemy Property – Military Necessity Standard).

300

GC art. 53 (“Any destruction by the Occupying Power of real or personal property belonging individually orcollectively to private persons, or to the State, or to other public authorities, or to social or cooperative
organizations, is prohibited, except where such destruction is rendered absolutely necessary by military
operations.”).
301

Refer to § 5.17.2 (Enemy Property – Military Necessity Standard).

302

GC COMMENTARY 302 (“Furthermore, it will be for the Occupying Power to judge the importance of such
military requirements. It is therefore to be feared that bad faith in the application of the reservation may render the
proposed safeguard valueless; for unscrupulous recourse to the clause concerning military necessity would allow the
Occupying Power to circumvent the prohibition set forth in the Convention. The Occupying Power must therefore
try to interpret the clause in a reasonable manner: whenever it is felt essential to resort to destruction, the occupying
authorities must try to keep a sense of proportion in comparing the military advantages to be gained with the damage
done.”).
303

Refer to § 5.3.2 (Decisions Must Be Made in Good Faith and Based on Information Available at the Time).

806

private) where required for direct military use in military operations. In the case of private
property, an Occupying Power, where possible, should requisition the property and offer
compensation to the owner. 304
11.18.2.3 Capture or Seizure and Vesting of Title in the Occupying Power. In thecase of real (immovable) property that is captured or seized, the Occupying Power may use suchproperty for the duration of the occupation but does not take title to the property. 305
Public property captured or seized from the enemy, as well as private property validly
captured on the battlefield and abandoned property, is the property of the capturing State. 306
Valid capture or seizure of property requires both an intent to take such action and aphysical act of capture or seizure. The mere presence within occupied territory of property thatis subject to appropriation under international law does not operate to vest title thereto in the
Occupying Power. 307
11.18.2.4 Seizure or Destruction of Submarine Cables Connecting an Occupied
Territory With a Neutral Territory. Submarine cables connecting an occupied territory with aneutral territory shall not be seized or destroyed except in the case of absolute necessity. Suchcables must likewise be restored and compensation fixed when peace is made. 308
This rule applies only to activities on land and does not deal with seizure or destruction ofcables in the open sea. 309
11.18.3 Property Control Measures. Public and private property within occupied territory
may be controlled by the Occupying Power to the degree necessary to prevent its use by or for

304

Refer to § 11.18.7 (Requisitions of Private Enemy Property).

305

Refer to § 11.18.5.1 (Public Real (Immovable) Property Susceptible of Direct Military Use); § 11.18.5.2 (Public
Real (Immovable) Property That Is Essentially of a Non-Military Nature).
306
1956 FM 27-10 (Change No. 1 1976) ¶396 (“Public property captured or seized from the enemy, as well asprivate property validly captured on the battlefield and abandoned property, is property of the United States (seeU.S. Const., Art. I, sec. 8, cl. 11), and failure to turn over such property to the proper authorities or disposal thereof
for personal profit is a violation of Article 103 of the Uniform Code of Military Justice.”). Refer to § 5.17.3.2(Ownership of Captured or Found Property on the Battlefield).
307

1956 FM 27-10 (Change No. 1 1976) ¶395 (“Valid capture or seizure of property requires both an intent to takesuch action and a physical act of capture or seizure. The mere presence within occupied territory of property which
is subject to appropriation under international law does not operate to vest title thereto in the occupant.”).
308

HAGUE IV REG. art. 54 (“Submarine cables connecting an occupied territory with a neutral territory shall not be
seized or destroyed except in the case of absolute necessity. They must likewise be restored and compensation fixed
when peace is made.”).
309

JAMES BROWN SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: III THE CONFERENCE OF 1907
13 (1921) (“Mr. Louis Renault observes that this amendment has reference only to what takes place on land, without
touching the question of seizure or destruction of submarine cables in the open sea. The President thanks him forhaving given the text an interpretation that leaves no room for doubt.”).

807

the benefit of hostile forces, or in a manner harmful to the Occupying Power. 310 For example, inthe case of persons who have acted against the security of the Occupying Power, the Occupying
Power may freeze their accounts to prevent such funds from being used against the interests of
the Occupying Power. 311
Conservators may be appointed to manage the property of absent persons (including
nationals of the United States and of friendly States) and of internees, property managed by such
persons, and property of persons whose activities are deemed to be prejudicial to the Occupying
Power. However, when the owners or managers of such property are again able to resumecontrol of their property and the risk of its hostile use no longer exists, it must be returned tothem. 312
Measures of property control must not extend to confiscation of private property. 313 For
example, if the Occupying Power controls a private business and earns a profit, the owner must
be indemnified. 314
However, the authority of the Occupying Power to impose such controls does not limit its
power to seize or requisition property or take such other action with respect to it as may be
authorized by other provisions of law. 315
11.18.4 Determination Whether Property Is Public or Private. The rules for the treatmentof enemy property may depend on whether the property is public or private.
For example, private property may not be confiscated, and there is an obligation to pay
compensation for requisitions of private property. 316 On the other hand, public property

310

1956 FM 27-10 (Change No. 1 1976) ¶399 (“Property within occupied territory may be controlled by theoccupant to the degree necessary to prevent its use by or for the benefit of the hostile forces or in a manner harmful
to the occupant.”).
311

VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 207 (“This control includes not only the steps mentioned
above in connection with central banks and commercial banks but covers such things as the freezing of accounts
where the owner of the funds in question has acted against the interests of the occupying power, control of large
cash deposits, control over safe deposit boxes, and, of course, the removal of personnel held to be undesirable fromthe viewpoint of the occupant.”).
312

1956 FM 27-10 (Change No. 1 1976) ¶399 (“Conservators may be appointed to manage the property of absent
persons (including nationals of the United States and of friendly States) and of internees, property managed by such
persons, and property of persons whose activities are deemed to be prejudicial to the occupant. However, when theowners or managers of such property are again able to resume control of their property and the risk of its hostile use
no longer exists, it must be returned to them.”).
313

Refer to § 11.18.6.1 (Prohibition on Confiscation of Private Property in Occupied Territory).

314

Refer to § 11.23.3 (Control of Business in Occupied Territory).

315

1956 FM 27-10 (Change No. 1 1976) ¶399 (“Measures of property control must not extend to confiscation.
However, the authority of the occupant to impose such controls does not limit its power to seize or requisition
property or take such other action with respect to it as may be authorized by other provisions of law.”).
316

Refer to § 11.18.6.1 (Prohibition on Confiscation of Private Property in Occupied Territory); § 11.18.7.3 (Prices
and Compensation for Requisitioned Articles and Services).

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generally may be seized or captured without any obligation to pay compensation. 317
11.18.4.1 Beneficial Ownership Test. Under modern conditions, the distinction
between public and private property is not always easy to draw. For the purpose of treatment ofproperty under military occupation, it is often necessary to look beyond strict legal title and toascertain the character of the property on the basis of the beneficial ownership thereof. Thus, forexample, trust funds, pension funds, and bank deposits generated by private persons are not to be
regarded as public property simply by reason of their being held by a State-owned bank. 318
11.18.4.2 Property of Mixed Ownership. For the purpose of determining what
type of control the Occupying Power may exercise over property (by way of confiscation,
seizure, requisition, etc.), the most cogent evidence of public character is such a complete orpartial assumption by the State of the economic risk involved in the holding and management of
the property in question that the enemy State, rather than private individuals or corporations,would be subjected to a substantial portion of the loss were the property to be appropriated forthe use of the Occupying Power. 319 Should property that is ostensibly private be subjected to alarge measure of governmental control and management, or perform functions that are
essentially public, these facts would tend to indicate that the property should be regarded inpractice as public. 320
If property that is appropriated by the Occupying Power is beneficially owned in part by
the enemy State and in part by private interests, the occupation authorities should compensate theprivate owners to the extent of their interest. Such compensation should bear the same
relationship to the compensation that would be paid if the property were entirely privately
owned. The Occupying Power may take those measures it deems necessary to ensure that no
portion of the compensation paid on account of private interests accrues to the enemy State. 321

317

Refer to § 11.18.5 (Treatment of Enemy Public Property).

318

1956 FM 27-10 (Change No. 1 1976) ¶394a (“Beneficial Ownership. Under modern conditions, the distinction
between public and private property is not always easy to draw. For the purpose of treatment of property under
belligerent occupation, it is often necessary to look beyond strict legal title and to ascertain the character of theproperty on the basis of the beneficial ownership thereof. Thus, for example, trust funds, pension funds, and bankdeposits generated by private persons are not to be regarded as public property simply by reason of their being heldby a State-owned bank.”).
319

1956 FM 27-10 (Change No. 1 1976) ¶394b (“Property of Mixed Ownership. For the purpose of determining
what type of control the occupant may exercise over property (by way of confiscation, seizure, requisition, etc.), themost cogent evidence of public character is such a complete or partial assumption by the State of the economic risk
involved in the holding and management of the property in question that the State, rather than private individuals or
corporation, would be subjected to a substantial portion of the loss were the property to be appropriated for the useof the occupant.”).
320

1956 FM 27-10 (Change No. 1 1976) ¶394b (“Should property which is ostensibly private be subjected to a large
measure of governmental control and management or perform functions which are essentially public, these facts
would tend to indicate that the property should be regarded in practice as public.”).
321

1956 FM 27-10 (Change No. 1 1976) ¶394b (“If property which is appropriated by the occupant is beneficiallyowned in part by the State and in part by private interests, the occupation authorities should compensate the private
owners to the extent of their interest. Such compensation should bear the same relationship to the full compensation
which would be paid if the property were entirely privately owned as their interest bears to the total value of the809

11.18.4.3 Property of Unknown Ownership. If it is unknown whether certain
property is public or private, it should be treated as public property until its ownership is
ascertained. 322
11.18.5 Treatment of Enemy Public Property. In general, an Occupying Power may
capture or seize the real (immovable) and personal (movable) property of the occupied State anduse it for military operations or the administration of the occupied territory. No compensationneeds to be paid to the occupied State for the use or taking of such property.
11.18.5.1 Public Real (Immovable) Property Susceptible of Direct Military Use.
Real property of the occupied State that is of direct military use, such as forts, arsenals,
dockyards, magazines, barracks, railways, bridges, piers, wharves, airfields, and other militaryfacilities, may remain in the hands of the Occupying Power until the close of the hostilities, andmay be destroyed or damaged by the Occupying Power, if it deems it necessary to military
operations. 323
11.18.5.2 Public Real (Immovable) Property That Is Essentially of a Non-Military
Nature. The Occupying Power shall be regarded only as administrator and usufructuary of
public buildings, real estate, forests, and agricultural estates belonging to the hostile State, andsituated in the occupied territory. It must safeguard the capital of these properties, andadminister them in accordance with the rules of usufruct. 324 This real (immovable) property thatis essentially of a non-military nature may not be damaged or destroyed unless such destruction
is rendered absolutely necessary by military operations. 325
The term usufruct means literally “to use the fruit.” 326 The Occupying Power may use
property concerned. The occupant may take what measures it deems necessary to assure that no portion of thecompensation paid on account of private interests accrues to the State.”).
322

1956 FM 27-10 (Change No. 1 1976) ¶394c (“Property of Unknown Ownership. If it is unknown whether certain
property is public or private, it should be treated as public property until its ownership is ascertained.”).
323

1956 FM 27-10 (Change No. 1 1976) ¶401 (“Real property of a State which is of direct military use, such as
forts, arsenals, dockyards, magazines, barracks, railways, bridges, piers, wharves, airfields, and other militaryfacilities, remains in the hands of the occupant until the close of the war, and may be destroyed or damaged, if
deemed necessary to military operations.”).
324
HAGUE IV REG. art. 55 (“The occupying State shall be regarded only as administrator and usufructuary of publicbuildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied
country. It must safeguard the capital of these properties, and administer them in accordance with the rules ofusufruct.”).
325

1956 FM 27-10 (Change No. 1 1976) ¶402 (“Real property of the enemy State which is essentially of a nonmilitary nature, such as public buildings and offices, land, forests, parks, farms, and mines, may not be damaged or
destroyed unless such destruction is rendered absolutely necessary by military operations (see Art. 63, GC; par. 393
herein).”). Refer to § 11.18.2 (Seizure or Destruction of Property During Occupation – Application of the Military
Necessity Standard).
326

See DEPARTMENT OF THE ARMY PAMPHLET 27-161-2, II International Law, 183 (Oct. 23, 1962) (“The term
‘usufruct’ means literally ‘to use the fruit.’ The occupant can therefore enjoy the benefits of public real property,
but he cannot interfere with the substantive rights still possessed by the displaced sovereign.”); Brigadier General
George B. Davis, Working Memoranda (Confidential for the United States Delegates): The Second Peace
Conference (Paragraph 2 of Programme), The Rules of War on Land, 43 (1907) (“In the meaning which has been
assigned to the term ‘usufruct’ in both the common and civil law, the usufructuary is entitled to the enjoyment of the810and enjoy the benefits of public real (immovable) property belonging to an enemy State, but does
not have the right of sale or unqualified use of such property. As administrator or usufructuary,
the Occupying Power should not exercise its rights in such a wasteful and negligent manner as
seriously to impair the property’s value. 327
The Occupying Power may, however, lease or utilize public lands or buildings, sell thecrops, cut and sell timber, and work the mines. The term of a lease or contract should not extend
beyond the conclusion of the war. 328
11.18.5.3 Public Personal (Movable) Property. An army of occupation may only
take possession of cash, funds, and realizable securities that are strictly the property of an enemy
State, depots of arms, means of transport, stores and supplies, and, generally, all personal(movable) property belonging to the State that may be used for military operations. 329
Thus, all personal (movable) property belonging to an enemy State susceptible of military
use may be taken possession of, and utilized for, the benefit of the Occupying Power. Under
modern conditions of warfare, a large proportion of State property may be regarded as capable ofbeing used for military purposes. However, personal (movable) property that is not susceptibleof military use must be respected and may not be appropriated. 330
11.18.6 Treatment of Enemy Private Property. Private property may not be
confiscated. 331
Private personal (movable) property susceptible to direct military use may be seized, witha receipt to be given to allow for compensation to be paid at the conclusion of the war. 332
Other private property may be subject to requisition, with payment in cash given as soon
revenue so long as he preserves the substance or capital of which he appropriates and uses the usufruct. In its
application to the commanding general of occupied territory this means that, so long as he maintains the properties
thus unimpaired, he may apply the usufructuary revenue to the necessary expenses of the military occupation.”).
327

1956 FM 27-10 (Change No. 1 1976) ¶402 (“The occupant does not have the right of sale or unqualified use ofsuch property. As administrator or usufructuary he should not exercise his rights in such a wasteful, and negligent
manner as seriously to impair its value.”).
328

1956 FM 27-10 (Change No. 1 1976) ¶402 (“He may, however, lease or utilize public lands or buildings, sell thecrops, cut and sell timber, and work the mines. The term of a lease or contract should not extend beyond theconclusion of the war.”).
329

HAGUE IV REG. art. 53 (“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 military operations.”).
330

1956 FM 27-10 (Change No. 1 1976) ¶404 (“All movable property belonging to the State susceptible of military
use may be taken possession of and utilized for the benefit of the occupant’s government. Under modern conditionsof warfare, a large proportion of State property may be regarded as capable of being used for military purposes.
However, movable property which is not susceptible of military use must be respected and cannot beappropriated.”).
331

Refer to § 11.18.6.1 (Prohibition on Confiscation of Private Property in Occupied Territory).

332

Refer to § 11.18.6.2 (Seizure of Private Property Susceptible to Direct Military Use).

811

as possible. 333
Private property may be forfeited to the Occupying Power as a result of the valid
imposition of penalties. 334 For example, a regulation closing a road for security reasons could
specify that, as a penalty, unauthorized private vehicles found on the road would be subject toforfeiture without any compensation. 335
11.18.6.1 Prohibition on Confiscation of Private Property in Occupied Territory.
Private property may not be confiscated. 336
The prohibition against confiscation of private property extends not only to outrighttaking in violation of the law of war, but also to any acts that, through the use of threats,
intimidation, or pressure, or by actual exploitation of the power of the Occupying Power,
permanently or temporarily deprive the owner of the use of such property without the owner’s
consent, or without authority under international law. 337
The prohibition against confiscation of private property does not extend to takings by
way of contribution, requisition, or the valid imposition of penalties. 338
11.18.6.2 Seizure of Private Property Susceptible to Direct Military Use. All
333

Refer to § 11.18.7 (Requisitions of Private Enemy Property).

334

See Philip C. Jessup, A Belligerent Occupant’s Power over Property, 38 AJIL 457, 459 (1944) (“3) Seizure andconfiscation. This case is not spelled out in the Hague Regulations but it is important. Private property of any kind
may be forfeited as a penalty. For example, a military regulation may forbid civilian carts to cross a certain bridge
under penalty of forfeiture of the cart and its contents and the draft animal. A regulation may forbid the sale ofintoxicating liquors under penalty of forfeiture of all stocks on hand. Especially in agrarian communities of rather
primitive economy, fines may be imposed in terms of farm produce, articles of native manufacture, or any othercommodities. Property taken by the occupant in this way is acquired with a clear title and may be used in any way
the occupant sees fit.”).
335

VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 188 (“Private property may also have to be forfeited to an
occupant as a penalty: fines for a great number of minor offenses may be lawfully exacted in terms of products orgoods. For instance, vehicles found on closed roads may be confiscated, clothing over and above a stated maximum
might well be seized, and so on. A lawful occupant could utilize all property thus acquired in any manner he saw fit,since he would have a clear title to the goods without having paid any compensation.”).
336

HAGUE IV REG. art. 46 (“Private property cannot be confiscated.”).

337

1956 FM 27-10 (Change No. 1 1976) ¶406b (“Prohibited Acts. The foregoing prohibition extends not only tooutright taking in violation of the law of war but also to any acts which, through the use of threats, intimidation, orpressure or by actual exploitation of the power of the occupant, permanently or temporarily deprive the owner of theuse of his property without his consent or without authority under international law.”).
338

Brigadier General George B. Davis, Working Memoranda (Confidential for the United States Delegates): The
Second Peace Conference (Paragraph 2 of Programme), The Rules of War on Land, 38 (1907) (“Article XVLI. …
Private property may be taken by way of contribution or requisition, in order to compel the enemy to bear his shareof the burdens and hardships of war, but it can not be confiscated—that is, it can not be seized by way ofpunishment for a breach of allegiance, for no tie of allegiance exists between the inhabitants of the occupied territory
and the invading enemy. It is not understood that in the operation of a penalty which may be imposed by a militarycommission or other tribunal with jurisdiction to try cases in occupied territory the private property of an individual
may not be taken. It is rather a taking without compensation—a taking which is not in conformity to the laws of war
which is here made the subject of the express prohibition.”).

812

appliances, whether on land, at sea, or in the air, adapted for the transmission of news, or for thetransport of persons or things, exclusive of cases governed by naval law, depots of arms, and,generally, all kinds of ammunition of war, may be seized, even if they belong to private
individuals, but must be restored and compensation fixed when peace is made. 339
Private property susceptible of direct military use includes cables, telephone andtelegraph facilities, radio, television, telecommunications and computer networks and equipment,
motor vehicles, railways, railway plants, port facilities, ships in port, barges and other watercraft,
airfields, aircraft, depots of arms (whether military or sporting), documents connected with theconflict, 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 kindsof war material. 340
If private property is seized on the grounds that is it susceptible to direct military use, areceipt should be given the owner, or a record made of the nature and quantity of the property
and the name of the owner or person in possession of it, in order that restoration andcompensation may be made at the conclusion of the war. 341
11.18.6.3 Private Real (Immovable) Property. Private real (immovable) property
may under no circumstances be seized. It may, however, be requisitioned. 342
11.18.6.4 Municipal, Religious, Charitable, and Cultural Property. The property
of municipalities, that of institutions dedicated to religion, charity, and education, and the artsand sciences, even when State property, shall be treated as private property. All seizure of,destruction of, or willful damage done to institutions of this character, historic monuments,
works of art, and science, is forbidden, and should be made the subject of legal proceedings. 343
The reference to “property of municipalities” above has been interpreted as not granting
339

HAGUE IV REG. art. 53 (“All appliances, whether on land, at sea, or in the air, adapted for the transmission ofnews, or for the transport of persons or things, exclusive of cases governed by naval law, depots of arms, and,generally, all kinds of ammunition of war, may be seized, even if they belong to private individuals, but must be
restored and compensation fixed when peace is made.”).
340
1956 FM 27-10 (Change No. 1 1976) ¶410a (“Seizure. The rule stated in the foregoing paragraph includes
everything susceptible of direct military use, such as cables, telephone and telegraph plants, radio, television, andtelecommunications equipment, motor vehicles, railways, railway plants, port facilities, ships in port, barges andother watercraft, airfields, aircraft, depots of arms, whether military or sporting, documents connected with the 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.”).
341

See 1956 FM 27-10 (Change No. 1 1976) ¶409 (“If private property is seized in conformity with the preceding
paragraph, a receipt therefor should be given the owner or a record made of the nature and quantity of the property
and the name of the owner or person in possession in order that restoration and compensation may be made at theconclusion of the war.”).
342

Refer to § 11.18.7 (Requisitions of Private Enemy Property).

343

HAGUE IV REG. art. 56 (“The property of municipalities, that of institutions dedicated to religion, charity andeducation, the arts and sciences, even when State property, shall be treated as private property. All seizure of,destruction or willful damage done to institutions of this character, historic monuments, works of art, and science, isforbidden, and should be made the subject of legal proceedings.”).

813

preferential treatment for all types of property owned by municipalities, but as referring tocommunal property, such as poor houses, asylums, park buildings, museums, and public records,
whether owned by a parish, a town, or a province. 344
Just as private property may be subject to requisitions and contribution and certain otherpurposes during a military occupation, the types of property referred to in Article 56 of theHague IV Regulations may also be subject to such demands. 345 For example, such property may
be requisitioned in case of necessity for quartering the forces and the sick and wounded, storageof supplies and material, housing of vehicles and equipment, and generally as prescribed for
private property. 346 Such property must, however, be secured against all avoidable injury, evenwhen located in fortified places that are subject to seizure or bombardment. 347
Additional rules apply to cultural property. 348
In the practice of the United States, religious buildings, shrines, and consecrated places
employed for worship are used only for aid stations, for medical installations, or for the housingof wounded personnel awaiting evacuation, provided in each case that a situation of emergency
requires such use. 349
11.18.7 Requisitions of Private Enemy Property. Although private enemy property may
not be confiscated, it may be subject to requisition, which is the method of taking private enemy

344

William M. Franklin, Municipal Property Under Belligerent Occupation, 28 AJIL 383, 395-96 (1944) (“3. It was
not the intention of the drafters of the article to grant the highly preferential treatment of Article 56 to all types ofproperty owned by municipalities, simply on the basis of their ownership. Military installations maintained bymunicipalities and all other types of property owned by municipalities which would be susceptible of direct military
use and were not dedicated to humanitarian, educational, scientific or artistic purposes do not enjoy the protection of
Article 56. 4. For this reason it was never thought necessary to define the word ‘communes’ in terms of any specificunit of local government. The expression was intended to include communal property, such as poor houses,
asylums, park buildings, museums and public records, whether owned by a parish, a town or a province.”).
345

VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 192 (“It has to be remembered, in this connection, thatmunicipal property is subject to requisitions and contributions…. While an occupant is prevented from confiscating
the various kinds of property listed in Article 56, the rules of international law do not prevent him, on the other
hand, from utilizing these properties for certain purposes during military occupation. He is entitled to lodge troops,
animals, stores, supplies, and the like in buildings belonging to exempt or immune institutions, and may convert
such buildings into hospitals for the care of this wounded. In other words, municipal and other exempt property may
be used by the occupying forces in the same manner and to the same extent as in the case of private property.”).
346

1956 FM 27-10 (Change No. 1 1976) ¶405 (“b. Use of Such Premises. The property included in the foregoingrule may be requisitioned in case of necessity for quartering the troops and the sick and wounded, storage ofsupplies and material, housing of vehicles and equipment, and generally as prescribed for private property. Suchproperty must, however, be secured against all avoidable injury, even when located in fortified places which are
subject to seizure or bombardment.”).
347

Refer to § 5.17.5 (Feasible Precautions Should Be Taken to Mitigate the Burden on Civilians).

348

Refer to § 11.19 (Protection of Cultural Property During Occupation).

349

1956 FM 27-10 (Change No. 1 1976) ¶405c (“Religious Buildings, Shrines, and Consecrated Places. In thepractice of the United States, religious buildings, shrines, and consecrated places employed for worship are used
only for aid stations, medical installations, or for the housing of wounded personnel awaiting evacuation, provided
in each case that a situation of emergency requires such use.”).

814

real (immovable) and personal (movable) property for the needs of the army of occupation. 350
Requisitions in kind and services shall not be demanded from municipalities or
inhabitants except for the needs of the army of occupation. They shall be in proportion to theresources of the country, and of such a nature as not to involve the inhabitants in the obligationof taking part in military operations against their own country. 351
11.18.7.1 Method of Requisitioning. Requisitions must be made under theauthority of the commander in the locality. 352 No prescribed method is fixed, but if practicable,
requisitions should be accomplished through the local authorities by systematic collection inbulk. They may be made direct by detachments if local authorities fail or if circumstances
preclude resort to such authorities. 353
11.18.7.2 Types of Property That May Be Requisitioned. Goods and services thatare necessary for the maintenance of the occupation army (e.g., fuel, food, clothing, building
materials, machinery, tools, vehicles, furnishings for quarters) may be requisitioned. Billeting offorces in occupied areas is also authorized. 354
Special additional rules apply to the requisition of foodstuffs, articles necessary tosupport life, or medical supplies available in the occupied territory. 355 Similarly, additional rules
apply to the requisition of civilian hospitals and their supplies. 356
11.18.7.3 Prices and Compensation for Requisitioned Articles and Services.
Contributions in kind shall as far as possible be paid for in cash; if not, a receipt shall be given,

350

DEPARTMENT OF THE ARMY PAMPHLET 27-161-2, II International Law, 181 (Oct. 23, 1962) (“Requisition is themethod of taking private enemy movable and immovable property for the needs of the army of occupation.”); VON
GLAHN, THE OCCUPATION OF ENEMY TERRITORY 165 (“Requisition is the term used for the demand of a supply of
all kinds of articles needed by an army such as foodstuffs, clothing, horses, transportation and means oftransportation, and buildings.”).
351

HAGUE IV REG. art. 52 (“Requisitions in kind and services shall not be demanded from municipalities or
inhabitants except for the needs of the army of occupation. They shall be in proportion to the resources of thecountry, and of such a nature as not to involve the inhabitants in the obligation of taking part in military operations
against their own country.”).
352

HAGUE IV REG. art. 52 (“Such requisitions and services shall only be demanded on the authority of thecommander in the locality occupied.”).
353

1956 FM 27-10 (Change No. 1 1976) ¶415 (“Requisitions must be made under the authority of the commander inthe locality. No prescribed method is fixed, but if practicable requisitions should be accomplished through the local
authorities by systematic collection in bulk. They may be made direct by detachments if local authorities fail or if
circumstances preclude resort to such authorities.”).
354

1956 FM 27-10 (Change No. 1 1976) ¶412b (“What May Be Requisitioned. Practically everything may berequisitioned under this article that is necessary for the maintenance of the army, such as fuel, food, clothing,building materials, machinery, tools, vehicles, furnishings for quarters, etc. Billeting of troops in occupied areas isalso authorized.”).
355

Refer to § 11.14.2 (Limitation on Requisition of Food and Medical Supplies).

356

Refer to § 11.15.5 (Requisition of Civilian Hospitals).

815and the payment of the amount due shall be made as soon as possible. 357
The prices of articles and services requisitioned will be fixed by agreement if possible,
otherwise by military authority. 358
11.18.7.4 Method of Enforcing Requisition. Coercive measures may be used to
enforce requisitions, but will be limited to the amount and kind necessary to secure the articles
requisitioned. 359
11.19 PROTECTION OF CULTURAL PROPERTY DURING OCCUPATION
The following rules address the protection of cultural property during occupation. The
general rules for the protection of cultural property during hostilities also apply during
occupation. 360 For example, military commanders have an obligation to take reasonablemeasures to prevent or stop any form of theft, pillage, or misappropriation of, and any acts ofvandalism directed against, cultural property. 361
11.19.1 Obligation With Respect to the Safeguarding and Preservation of Cultural
Property. Any Party to the 1954 Hague Cultural Property Convention in occupation of the wholeor part of the territory of another Party to the 1954 Hague Cultural Property Convention shall as
far as possible support the competent national authorities of the occupied country in safeguarding
and preserving its cultural property. 362
Should it prove necessary to take measures to preserve cultural property situated in
occupied territory and damaged by military operations, and should the competent national
authorities be unable to take such measures, the Occupying Power shall, as far as possible, and inclose co-operation with such authorities, take the most necessary measures of preservation. 363
11.19.2 Respect for Cultural Property by Members of a Legitimate Resistance357

HAGUE IV REG. art. 52 (“Contributions in kind shall as far as possible be paid for in cash; if not, a receipt shall begiven and the payment of the amount due shall be made as soon as possible.”).
358
1956 FM 27-10 (Change No. 1 1976) ¶416 (“The prices of articles and services requisitioned will be fixed byagreement if possible, otherwise by military authority. Receipts should be taken up and compensation paid
promptly.”).
359

1956 FM 27-10 (Change No. 1 1976) ¶417 (“Coercive measures will be limited to the amount and kind necessary
to secure the articles requisitioned.”).
360

Refer to § 5.18 (Protection of Cultural Property During Hostilities).

361

Refer to § 5.18.6.1 (Obligation to Stop or Prevent Theft, Pillage, or Misappropriation of, and Acts of Vandalism
Against, Cultural Property).
362

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 5(1) (“Any High Contracting Party in occupation of thewhole or part of the territory of another High Contracting Party shall as far as possible support the competent
national authorities of the occupied country in safeguarding and preserving its cultural property.”).
363

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 5(2) (“Should it prove necessary to take measures topreserve cultural property situated in occupied territory and damaged by military operations, and should thecompetent national authorities be unable to take such measures, the Occupying Power shall, as far as possible, and inclose co-operation with such authorities, take the most necessary measures of preservation.”).

816

Movement. Any Party to 1954 Hague Cultural Property Convention whose government is
considered by members of a resistance movement as their legitimate government shall, if
possible, draw the resistance movement members’ attention to the obligation to comply withthose provisions of the 1954 Hague Cultural Property Convention dealing with respect for
cultural property. 364
11.19.3 Special Representative for Cultural Property in Occupied Territory andApplication for Special Protection. An Occupying Power shall appoint a special representative
for cultural property situated in that territory. 365
The Occupying Power is competent to submit an application for immovable culturalproperty to be entered into the International Register of Cultural Property Under Special
Protection. 366
11.19.4 Transfers of Cultural Property From and Within Occupied Territory. The
requisition of movable cultural property situated in the territory of another Party to the 1954
Hague Cultural Property Convention is prohibited. 367
If necessary under its obligation to take measures to preserve damaged cultural property,
the Occupying Power may arrange for the transport of cultural property to a refuge within
occupied territory in accordance with other provisions of the 1954 Hague Cultural Property
Convention. 368 Whenever a High Contracting Party occupying territory of another HighContracting Party transfers cultural property to a refuge situated elsewhere in that territory,
without being able to follow the procedure for the transport of cultural property under special
protection provided for in Article 17 of the Regulations, the transfer in question shall not be
regarded as misappropriation within the meaning of Article 4 of the Convention, provided that
the Commissioner-General for Cultural Property certifies in writing, after having consulted the3641954 HAGUE CULTURAL PROPERTY CONVENTION art. 5(3) (“Any High Contracting Party whose government is
considered their legitimate government by members of a resistance movement, shall, if possible, draw their attention
to the obligation to comply with those provisions of the Conventions dealing with respect for cultural property.”).
365

REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 2 (“As soon as
any High Contracting Party is engaged in an armed conflict to which Article 18 of the Convention applies: (a) It
shall appoint a representative for cultural property situated in its territory; if it is in occupation of another territory, it
shall appoint a special representative for cultural property situated in that territory;”).

366

REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 13 (“1. Any
High Contracting Party may submit to the Director General of the United Nations Educational, Scientific andCultural Organization an application for the entry in the Register of certain refuges, centres containing monuments
or other immovable cultural property situated within its territory. Such application shall contain a description of thelocation of such property and shall certify that the property complies with the provisions of Article 8 of theConvention. 2. ln the event of occupation, the Occupying Power shall be competent to make such application.”).
Refer to § 5.18.8 (Special Protection for Certain Cultural Property).

367

Refer to § 5.18.6.2 (Prohibition Against Requisition of Movable Cultural Property Situated in the Territory ofAnother Party to the 1954 Hague Cultural Property Convention).
368

Refer to § 5.18.9.1 (Transport Under Special Protection).

817

usual custodians, that such transfer was rendered necessary by circumstances. 369
11.20 LABOR OF PROTECTED PERSONS IN OCCUPIED TERRITORY
11.20.1 Types of Labor That May Not Be Compelled. The Occupying Power may notcompel protected persons to perform certain types of labor.
11.20.1.1 Prohibition on Compulsory Service in an Occupying Power’s Armed
Forces. The Occupying Power may not compel protected persons to serve in its armed or
auxiliary forces. No pressure or propaganda that aims at securing voluntary enlistment ispermitted. 370
Compelling protected persons to serve in its armed or auxiliary forces would in mostcases also violate the prohibition against compelling inhabitants of occupied territory to swear
allegiance to the hostile State. 371 Compelling a protected person to serve in the forces of ahostile Power is a grave breach of the GC. 372
11.20.1.2 Prohibition Against Compelling Protected Persons as Guards for
Compulsory Work Installations. The Occupying Power may not compel protected persons toemploy forcible means to ensure the security of the installations where protected persons are
performing compulsory labor. 373
11.20.1.3 Prohibition Against Requisition Labor Such That Workers Are
Mobilized in a Military or Semi-Military Organization. In no case shall requisition of labor leadto a mobilization of workers in an organization of a military or semi-military character. 374
11.20.1.4 Prohibition Against Forcing Inhabitants to Provide Information About
the Opposing Army or Its Means of Defense. A belligerent is forbidden to force the inhabitantsof territory occupied by it to furnish information about the army of the other belligerent, or about
its means of defense. 375 This obligation also results from the general prohibition against use of369

REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 19 (“Whenevera High Contracting Party occupying territory of another High Contracting Party transfers cultural property to a
refuge situated elsewhere in that territory, without being able to follow the procedure provided for in Article 17 of
the Regulations, the transfer in question shall not be regarded as misappropriation within the meaning of Article 4 of
the Convention, provided that the Commissioner-General for Cultural Property certifies in writing, after having
consulted the usual custodians, that such transfer was rendered necessary by circumstances.”).
370

GC art. 51 (“The Occupying Power may not compel protected persons to serve in its armed or auxiliary forces.
No pressure or propaganda which aims at securing voluntary enlistment is permitted.”).
371

Refer to § 11.6.2.1 (Prohibition on Compelling Inhabitants of Occupied Territory to Swear Allegiance to the
Hostile State).
372

Refer to § 18.9.3.1 (Acts Constituting Grave Breaches).

373

GC art. 51 (“The Occupying Power may not compel protected persons to employ forcible means to ensure thesecurity of the installations where they are performing compulsory labour.”).
374

GC art. 51 (“In no case shall requisition of labour lead to a mobilization of workers in an organization of amilitary or semi-military character.”).

375

HAGUE IV REG. art. 44 (“A belligerent is forbidden to force the inhabitants of territory occupied by it to furnish
information about the army of the other belligerent, or about its means of defence.”).

818

physical or moral coercion against protected persons. 376
11.20.1.5 Prohibition Against Other Work That Would Involve Protected Persons
in the Obligation of Taking Part in Military Operations. Protected persons may not becompelled to undertake any work that would involve them in the obligation of taking part inmilitary operations. 377 This rule is formulated more broadly than the general rule against
compelling a national to take part in operations against his or her own country378 because itprohibits compulsory service in any military operation. 379
The purpose of this rule, at least in part, is to ensure that civilians in occupied territory
are not required to engage in activities that would forfeit their protections as civilians under thelaw of war. 380
The prohibition against forcing the inhabitants of an occupied territory to take part inmilitary operations against their own country precludes requisitioning their services in work
directly promoting the ends of the war, such as construction of fortifications, entrenchments, andmilitary airfields, or the transportation of supplies or ammunition in the zone of operations. 381

376

GC COMMENTARY 220 (“Furthermore, coercion is forbidden for any purpose or motive whatever. The authors of
the Convention had mainly in mind coercion aimed at obtaining information, work or support for an ideological orpolitical idea. The scope of the text is more general than that of Article 44 of the Hague Regulations of 1907, underwhich ‘a belligerent is forbidden to force the inhabitants of a territory occupied by it to furnish information about thearmy of the other belligerent, or about its means of defence’; Article 31 prohibits coercion for any purpose or reason
and the obtaining of information is only given as an example. Thus, the custom, hitherto accepted in practice but
disputed in theory, that an invasion army may force the inhabitants of an occupied territory to serve as ‘guides’ is
now forbidden.”). Refer to § 10.5.3.1 (No Physical or Moral Coercion).
377

GC art. 51 (“Protected persons may not be compelled to undertake any work which would involve them in the
obligation of taking part in military operations.”). See also HAGUE IV REG. art. 52 (“Requisitions in kind andservices shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation.
They shall be in proportion to the resources of the country, and of such a nature as not to involve the inhabitants inthe obligation of taking part in military operations against their own country.”).
378

Refer to § 5.27 (Prohibition Against Compelling Enemy Nationals to Take Part in the Operations of War Directed
Against Their Own Country).
379
GC COMMENTARY 296-97 (“The prohibition in this sentence is even more general than that contained in Article
52 of the Hague Regulations; for it does not only embrace work involving the participation of the inhabitants in‘military operations against their own country’, but refers in a general way to any work ‘which would involve themin the obligation of taking part in military operations’. The importance of the distinction will be realised if the mind
is cast back to cases when the occupying authorities have tried to circumvent the law of war by pretending that they
are no longer engaged in military operations against the home country of the persons whose services they are
requisitioning.”).
380

GC COMMENTARY 297 (“One point must not be forgotten: the Fourth Convention applies to civilians andcivilians are by definition outside the fighting. Any action on the part of the Occupying Power which had the effectof involving them, directly or indirectly, in the fighting and so preventing them from benefiting by special protection
under the Convention must be regarded as unlawful. The application of this clause depends very largely on the goodfaith of the occupant, who must judge in each individual case, with a full sense of his responsibility in the matter,
whether or not the work demanded is compatible with the conditions here laid down.”).
381

1956 FM 27-10 (Change No. 1 1976) ¶420 (“The prohibition against forcing the inhabitants to take part inmilitary operations against their own country precludes requisitioning their services upon works directly promoting819

11.20.2 Types of Work That May Be Compelled. The Occupying Power may not compel
protected persons to work unless they are over eighteen years of age, and then only on work thatis necessary for: (1) the needs of the army of occupation; (2) the public utility services; or (3)the feeding, sheltering, clothing, transportation, or health of the population of the occupied
country. 382
Thus, the Occupying Power may compel protected persons to engage in these three types
of work, provided that such work is consistent with the other prohibitions against employing
protected persons. 383 For example, even if it is permitted to compel civilian engineers in
occupied territory to provide information about the telecommunications system of an occupied
country in order to facilitate restoration of service, they may not be required to provide suchinformation where it will be used to locate and attack the armed forces of the occupied territory.
11.20.2.1 Examples of Services That May Be Requisitioned From Inhabitants.
The services that may be obtained from inhabitants by requisition include those of professionals,
such as engineers, physicians, and nurses; and of artisans and laborers, such as clerks, carpenters,
butchers, bakers, and truck drivers. The officials and employees of:•railways, trucking companies, airlines, canals, and river or coastal steamship companies;•

cable, telegraph, telephone, radio, postal, and similar services;•gas, electric, and water works; and•sanitary authorities;

whether employed by the State or private companies, may be requisitioned to perform theirduties only so long as the duties required do not directly concern the operations of war against
their own country. 384
The Occupying Power may also requisition labor to restore the general condition of the
public works to that of peace, including the repair of roads, bridges, railways, andtelecommunication networks, and to perform services on behalf of the local population, such as
the ends of the war, such as construction of fortifications, entrenchments, and military airfields or the transportationof supplies or ammunition in the zone of operations.”).
382

GC art. 51 (“The Occupying Power may not compel protected persons to work unless they are over eighteen
years of age, and then only on work which is necessary either for the needs of the army of occupation, or for the
public utility services, or for the feeding, sheltering, clothing, transportation or health of the population of theoccupied country.”).
383

Refer to § 11.20.1 (Types of Labor That May Not Be Compelled).

384

1956 FM 27-10 (Change No. 1 1976) ¶419 (“The services which may be obtained from inhabitants by requisition
include those of professional men, such as engineers, physicians and nurses and of artisans and laborers, such as
clerks, carpenters, butchers, bakers, and truck drivers. The officials and employees of railways, trucklines, airlines,
canals, river or coastwise steamship companies, telegraph, telephone, radio, postal and similar services, gas, electric,
and water works, and sanitary authorities, whether employed by the State or private companies, may berequisitioned to perform their professional duties only so long as the duties required do not directly concern theoperations of war against their own country.”).

820

the care of the wounded and sick, and the burial of the dead. 385
In addition, inhabitants over eighteen years of age may be compelled to perform work
necessary to meet the maintenance needs of the occupation forces (as opposed to its strategic ortactical needs), such as providing telephone, water, or electricity services to the facilities of theoccupation army from which the occupied territory is administered, or providing support toprisons, police stations, and other facilities necessary for the maintenance of order among thecivilian population. 386
11.20.2.2 Requisition of Police and Other Services Essential to Good Order. In
general, police, firefighters, prison guards, and others who provide services essential to goodorder and security in occupied territory may be compelled by an Occupying Power to continue toprovide those services. 387 Such a requirement is consistent with the Occupying Power’s
obligation to maintain public order in occupied territory. 388
These officials may not be required to participate in military operations or other measures
aimed at countering belligerent acts against the Occupying Power that are performed byprivileged combatants under the law of war. 389 For example, civilian police forces in occupied
territory may not be compelled to provide security for an occupying force against attacks incompliance with the law of war launched by lawful combatants, including resistance fighters
who, if captured, would be entitled to POW status under GPW Article 4.
On the other hand, such police forces may be required to continue to perform theirnormal policing functions with respect to actual or threatened criminal acts, even where thevictim of such acts is the Occupying Power. 390 Similarly, civilian firefighters may be required to3851956 FM 27-10 (Change No. 1 1976) ¶419 (“The occupant may also requisition labor to restore the generalcondition of the public works to that of peace, including the repair of roads, bridges, and railways, and to perform
services on behalf of the local population, such as the care of the wounded and sick and the burial of the dead.”).
386

GC COMMENTARY 294 (“The wording ‘work which is necessary for the needs of the army of occupation’ is very
comprehensive and its interpretation is open to discussion. It will be enough to note here that the clause covers awide variety of services—those connected with billeting and the provision of fodder, transport services, the repairingof roads, bridges, ports and railways and laying telephone and telegraph lines. On the other hand it is generally
agreed that the inhabitants of the occupied territory cannot be requisitioned for such work as the construction of
fortifications, trenches or aerial bases. It is the maintenance needs of the army of occupation and not its strategic ortactical requirements which are referred to here. The distinction is essential and should be emphasized. It is
confirmed by a provision, to be examined further on, laying down that the Occupying Power cannot compel
protected persons to do work which would involve their participation in military operations.”).
387

See VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 68 (“[I]n fact, all able-bodied native inhabitants may
be called upon to perform police duties, to assist the regular native police in the maintenance of public order, to help
in fire-fighting organizations, or to perform any other duty for the public good.”).

388

Refer to § 11.5 (Duty of the Occupying Power to Ensure Public Order and Safety).

389

Refer to § 11.20.1.5 (Prohibition Against Other Work That Would Involve Protected Persons in the Obligation of
Taking Part in Military Operations).
390

See GC COMMENTARY 307 (“The reference to Article 51 relates not only to the list of different types of work, butalso to the conditions and safeguards contained in that Article, in particular the prohibition on the use of compulsion
to make protected persons take part in military operations. This is particularly important in the case of police
officers, who cannot under any circumstances be required to participate in measures aimed at opposing legitimate
belligerent acts, whether committed by armed forces hostile to the Occupying Power, by corps of volunteers or by821

extinguish fires endangering the Occupying Power’s military property that result from attacks byunprivileged combatants.
11.20.3 Working Conditions for Laborers Performing Requisitioned Work.
Requisitioned work shall be carried out only in the occupied territory where the persons whose
services have been requisitioned are resident, and such persons shall, so far as possible, be kept
in their usual places of employment. 391
Workers shall be paid a fair wage, and the work shall be proportionate to their physicaland intellectual capacities. 392
The legislation in force in the occupied country concerning working conditions, andsafeguards as regards, in particular, such matters as wages, hours of work, equipment,
preliminary training, and compensation for occupational accidents and diseases, shall beapplicable to the protected persons assigned to the work. 393
11.20.4 Voluntary Work Not Prohibited by the GC. Although the GC prohibits protected
persons from being compelled to provide certain types of work related to military operations,
there is no prohibition in the law of war to such persons being employed voluntarily and for pay
in such work. 394 For example, there is no law of war prohibition against civilian firefightersputting out fires endangering civilian property resulting from attacks by lawful combatants
against the Occupying Power’s military property.
However, no pressure or propaganda that aims at securing voluntary enlistment in thearmed or auxiliary forces of the Occupying Power is permitted. 395
In addition, certain voluntary humanitarian work is recognized and protected by theorganized resistance movements. On the other hand it would certainly appear that the Occupying Power is entitled
to require the local police to take part in tracing and punishing hostile acts committed under circumstances otherthan those laid down in Article 4 of the Third Geneva Convention. Such acts may in fact be regarded as offences
under common law, whatever ideas may have inspired their authors, and the occupation authorities, being
responsible for maintaining law and order, are within their rights in claiming the co-operation of the police.”).
391

GC art. 51 (“The work shall be carried out only in the occupied territory where the person whose services havebeen requisitioned are. Every such person shall, so far as possible, be kept in his usual place of employment.”).
392

GC art. 51 (“Workers shall be paid a fair wage and the work shall be proportionate to their physical andintellectual capacities.”).
393

GC art. 51 (“The legislation in force in the occupied country concerning working conditions, and safeguards as
regards, in particular, such matters as wages, hours of work, equipment, preliminary training and compensation foroccupational accidents and diseases, shall be applicable to the protected persons assigned to the work referred to inthis Article.”).
394

1956 FM 27-10 (Change No. 1 1976) ¶420 (“The prohibition against forcing the inhabitants to take part inmilitary operations against their own country precludes requisitioning their services upon works directly promoting
the ends of the war, such as construction of fortifications, entrenchments, and military airfields or the transportationof supplies or ammunition in the zone of operations. There is no objection in law to their being employed
voluntarily and for pay in such work.”).
395

Refer to § 11.20.1.1 (Prohibition on Compulsory Service in an Occupying Power’s Armed Forces).

822

GWS. 396
11.20.5 General Protections Applicable to Workers in Occupied Territory.
11.20.5.1 Access to Protecting Power. No contract, agreement, or regulation shall
impair the right of any worker, whether voluntary or not and wherever he or she may be, to apply
to the representatives of the Protecting Power in order to request the Protecting Power’s
intervention. 397
For example, it would be prohibited to forbid workers who are protected persons fromapplying to the Protecting Power. It would also be prohibited to require any protected persons
who are workers, as a condition of work, to renounce their right to apply for assistance to theProtecting Power concerning work conditions or any other matter. 398
11.20.5.2 No Use of Measures to Create Unemployment to Induce Work for the
Occupying Power. All measures aiming at creating unemployment or at restricting theopportunities offered to workers in an occupied territory, in order to induce them to work for the
Occupying Power, are prohibited. 399
Measures intended to reduce unemployment would not be prohibited by this rule. 400
11.21 JUDGES AND OTHER PUBLIC OFFICIALS
11.21.1 Continued Service of Judges and Other Public Officials. The Occupying Power
may not alter the status of public officials or judges in the occupied territories, or in any way
apply sanctions to or take any measures of coercion or discrimination against them, should they
abstain from fulfilling their functions for reasons of conscience. 401
Public officials may be understood to include officials at both the national and local
levels who fulfill public duties. 402
396

Refer to § 7.4.5 (Collection and Care of the Wounded, Sick, and Shipwrecked by Civilians).

397

GC art. 52 (“No contract, agreement or regulation shall impair the right of any worker, whether voluntary or not
and wherever he may be, to apply to the representatives of the Protecting Power in order to request the said Power’s
intervention.”).
398

Refer to § 10.5.6 (Facility for Applying to the Protecting Powers and Assistance Organizations Such as theICRC).
399

GC art. 52 (“All measures aiming at creating unemployment or at restricting the opportunities offered to workers
in an occupied territory, in order to induce them to work for the Occupying Power, are prohibited.”).
400

For example, Coalition Provisional Authority Order No. 39, Foreign Investment, preamble (Sept. 19, 2003)(“Determined to improve the conditions of life, technical skills, and opportunities for all Iraqis and to fightunemployment with its associated deleterious effect on public security,”).
401

GC art. 54 (“The Occupying Power may not alter the status of public officials or judges in the occupied
territories, or in any way apply sanctions to or take any measures of coercion or discrimination against them, should
they abstain from fulfilling their function for reasons of conscience.”).
402

GC COMMENTARY 304 (“[T]he term public official generally designates people in State or local government
service, who fulfill public duties.”).

823

This prohibition does not prejudice the application of the second paragraph of Article 51of the GC. 403 Thus, a public official may be compelled to work to meet the needs of the army ofoccupation or for the public utility services, such as water, electricity, or sanitation. 404 Similarly,
a public official may be compelled to provide certain police services. 405
This prohibition does not affect the right of the Occupying Power to remove public
officials from their posts. 406 For example, the Occupying Power may remove the politicalleadership and other political agents from their posts to prevent them from undermining the
Occupying Power’s administration. 407
11.21.2 Oath of Public Officials. An Occupying Power may not require the inhabitantsof occupied territory, including officials, to swear allegiance to it. 408 However, the Occupying
Power may require such officials as are continued in their offices to take an oath to perform theirduties conscientiously and not to act to its prejudice. 409 Any official who declines to take theoath may be removed; but, regardless of whether the official takes the oath, the official isrequired to obey the legitimate orders of the Occupying Power. 410
11.21.3 Salaries of Public Officials. The salaries of civil officials of the hostile
government who remain in the occupied territory and continue the work of their offices,
especially those who can properly continue it under the circumstances arising out of the war –such as judges, administrative or police officers, and officers of city or communal governments –are paid from the public revenues of the occupied territory, until the military government has

403

GC art. 54 (“This prohibition does not prejudice the application of the second paragraph of Article 51.”).

404

Refer to § 11.20.2 (Types of Work That May Be Compelled).

405

Refer to § 11.20.2.2 (Requisition of Police and Other Services Essential to Good Order).

406

GC art. 54 (“It does not affect the right of the Occupying Power to remove public officials from their posts.”).

407

GC COMMENTARY 308 (“The provision refers primarily to government officials and other political agents who
are generally removed from their posts by the occupation authorities.”). For example, Coalition Provisional
Authority Order No. 1, De-Ba`athification of Iraqi Society, §1(1) (May 16, 2003) (“On April 16, 2003 the Coalition
Provisional Authority disestablished the Ba`ath Party of Iraq. This order implements the declaration by eliminating
the party’s structures and removing its leadership from positions of authority and responsibility in Iraqi society.”).
408

Refer to § 11.6.2.1 (Prohibition on Compelling Inhabitants of Occupied Territory to Swear Allegiance to the
Hostile State).
409

1956 FM 27-10 (Change No. 1 1976) ¶423 (“The occupant may require such officials as are continued in theiroffices to take an oath to perform their duties conscientiously and not to act to its prejudice. Every such official who
declines to take such oath may be removed; but, whether he does so or not, he owes strict obedience to the occupant
as long as he remains in office.”). For example, Military Government, Germany, Supreme Commander’s Area ofControl, Law No. 2, German Courts, art. V, reprinted as Appendix 9 in VON GLAHN, THE OCCUPATION OF ENEMYTERRITORY 305, 306 (“QUALIFICATIONS OF JUDGES, PROSECUTORS, NOTARIES, AND LAWYERS No person shall be
qualified to act as a of judge, prosecutor, notary or lawyer, until he shall have taken an oath in the following form:
Oath ‘I swear by almighty God that I will at all times apply and administer the law without fear or favour and withjustice and equity to all persons of whatever creed, race, color or political opinion they may be, that I will obey thelaws of Germany, and all enactments of the Military Government, in spirit as well as in letter, and will constantly
endeavour to establish equal justice under the law for all persons. So help me God.’”).
410

Refer to § 11.7.1 (Inhabitants’ Obedience to the Occupying Power).

824

reason wholly or partially to dispense with their services. 411
Based on consistent practice, salaries or incomes connected with purely honorary titles
would be suspended. 412 Similarly, the Occupying Power need not continue to pay salaries thatare rewards for loyalty to the prior regime, and may reform the pay system of public servants toincrease transparency and fairness, as well as to create incentives for meritorious service. 413
11.22 PUBLIC FINANCES AND TAXESAs a result of assuming the functions of government of the occupied territory, thefinancial administration of the occupied territory passes into the hands of the Occupying Power.
During the occupation, the fiscal laws of the enemy State remain in effect, but may be changed
or suspended by the Occupying Power under certain circumstances, as discussed below.
11.22.1 Taxes. If, in the occupied territory, the Occupying Power collects the taxes,
dues, and tolls imposed for the benefit of the State, it shall do so, as far as is possible, in
accordance with the rules of assessment and incidence in force, and shall in consequence bebound to defray the expenses of the administration of the occupied territory to the same extent as
the legitimate Government was so bound. 414
11.22.1.1 Supervision of Taxes Collected by Local Authorities. The words “forthe benefit of the State” were inserted in Article 48 of the Hague IV Regulations to exclude local
taxes, dues, and tolls collected by local authorities for local purposes. 415 The Occupying Power
411

1956 FM 27-10 (Change No. 1 1976) ¶424 (“The salaries of civil officials of the hostile government who remainin the occupied territory and continue the work of their offices, especially those who can properly continue it under
the circumstances arising out of the war – such as judges, administrative or police officers, officers of city orcommunal governments – are paid from the public revenues of the occupied territory, until the military government
has reason wholly or partially to dispense with their services.”). For example, Coalition Provisional Authority
Regulation No. 2, Development Fund for Iraq, §6(3) (Jun. 15, 2003) (“Purposes. Sums may be disbursed from theFund to meet the humanitarian needs of the Iraqi people and for the economic reconstruction and repair of Iraq’s
infrastructure; for the continued disarmament of Iraq; for the costs of Iraq’s civilian administration; and for otherpurposes the Administrator determines to be for the benefit of the people of Iraq.”).
412

1956 FM 27-10 (Change No. 1 1976) ¶424 (“Salaries or incomes connected with purely honorary titles arealways suspended.”).
413
For example, Coalition Provisional Authority Order No. 30, Reform of Salaries and Employment Conditions ofState Employees, preamble (Sept. 8, 2003) (“Understanding that the salaries of public workers under the former
regime were paid through a complicated system largely composed of incentive pay that rewarded loyalty to theformer regime over meritorious service, ... Noting that salary and conditions of employment reform is essential toguarantee fairness within the public system to ensure that state employees receive appropriate compensation for theirefforts, but also to provide incentives for meritorious service or sanctions for failure to perform appropriately,”).
414

HAGUE IV REG. art. 48 (“If, in the territory occupied, the occupant collects the taxes, dues, and tolls imposed forthe benefit of the State, he shall do so, as far as is possible, in accordance with the rules of assessment and incidence
in force, and shall in consequence be bound to defray the expenses of the administration of the occupied territory to
the same extent as the legitimate Government was so bound.”).
415

J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 185 (“Taxes raised by local authorities for local
purposes may not be diverted by the occupant from the purpose for which they were raised although the occupant
may supervise their collection. It would seem that state taxes collected by local bodies and not used for local
purposes but transmitted to the state treasury are taxes ‘imposed for the benefit of the state.’”). See also SPAIGHT,
WAR RIGHTS ON LAND 378 (“The words ‘imposed for the benefit of the State’ in Article XLVIII are intended to825may supervise the expenditure of such revenue and prevent its hostile use. 416
11.22.1.2 Changes in Taxes or New Taxes. The Occupying Power shall collecttaxes, as far as is possible, in accordance with the rules of assessment and incidence in force.
This is an example of the general rule that the Occupying Power shall respect the laws in force inthe occupied territory unless absolutely prevented. 417 Modifications to the tax laws may bejustified by practical considerations and considerations of public order and safety.
If, due to the flight or unwillingness of local officials, it is impracticable to follow therules of incidence and assessment in force, then the total amount of taxes to be paid may beallotted among the districts, towns, etc., and the local authorities may be required to collect it. 418
The Occupying Power may suspend the tax laws of the occupied territory. 419 Similarly,
the Occupying Power may also reduce the rate of taxes under the existing tax laws.
Unless required to do so by considerations of public order and safety, the Occupying
Power must not create new taxes. 420 Additional revenue may be raised in some other form, suchexclude provincial and parochial taxes, or ‘rates’ as they are called in England. The latter the occupant must notintercept; he can only supervise the expenditure of such revenue, to see that it is not devoted to a hostile purpose.”).
416

1956 FM 27-10 (Change No. 1 1976) ¶427 (“The words ‘for the benefit of the State’ were inserted in theforegoing article (HR, art. 48; par. 425 herein) to exclude local taxes, dues, and tolls collected by local authorities.
The occupant may supervise the expenditure of such revenue and prevent its hostile use.”). See also JAMES BROWNSCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: THE CONFERENCE OF 1899 523 (1920) (“Jonkheer
van Karnebeek remarks that as the fundamental purport of this article is that the authority of the occupant issubstituted for that of the invaded State, it cannot be admitted that the occupant, by assuming a right which theoccupied State does not possess, may take possession of the municipal taxes, which the invaded State itself would
not think of appropriating in normal circumstances. Mr. Veljkovitch remarks that in this eventuality the municipal
authorities, being no longer able to discharge their duties, can likewise not collect the municipal taxes and especiallythe county rate; it is therefore proper for the occupant, whose power is substituted for that of the authorities, to takepossession of the said taxes.”).
417

J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 186 (“The occupant in collecting taxes must follow
the rules of procedure as well as the law of the country with regard to the distribution of the tax burden. This is an
instance of the general rule that the occupant shall respect the laws in force in the occupied territory unlessabsolutely prevented.”).
418
1956 FM 27-10 (Change No. 1 1976) ¶426a (“When Existing Rules May Be Disregarded. If, due to the flight or
unwillingness of the local officials, it is impracticable to follow the rules of incidence and assessment in force, then
the total amount of taxes to be paid may be allotted among the districts, towns, etc., and the local authorities
required to collect it.”).
419

VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 151-52 (“Just as an occupant may collect taxes, so he may
suspend existing taxes if the unaffected levies are sufficient to cover administrative expenses and if he does notdesire to enrich himself out of possible surplus revenues.”). For example, Coalition Provisional Authority OrderNo. 37, Tax Strategy for 2003, §2 (Sept. 19, 2003) (“Subject to Section 6 of this Order, the following taxes are
suspended from April 16, 2003 to the end of calendar year 2003:”).
420

1956 FM 27-10 (Change No. 1 1976) ¶426b (“New Taxes. Unless required to do so by considerations of publicorder and safety, the occupant must not create new taxes.”); Bassil Abu Aita et al. v. The Regional Commander of
Judea and Samaria and Staff Officer in Charge of Matters of Custom and Excise, HCJ 69/81; Omar Abdu Kadar
Kanzil, et al. v. Officer in Charge of Customs, Gaza Strip Region and the Regional Commander of the Gaza Strip,
HCJ 493/81, Israel Supreme Court Sitting as the High Court of Justice, 200, 270-71 (Apr. 5, 1983) (“Since thepower of imposing ordinary taxes are within the domain of the sovereign alone, accordingly, it is argued, it does not826as monetary contributions or customs duties. 421
U.N. Security Council resolutions may provide additional authority for the Occupying
Power to amend the tax laws. 422
11.22.1.3 Spending of Tax Revenue. The first charge upon such taxes is for thecost of the administration of the occupied territory. The balance may be used for the purposes of
the Occupying Power. 423
The Occupying Power may use tax revenue to defray the costs of maintaining order in theoccupied territory or for expenditures that benefit the local population (e.g., infrastructure
improvements). 424
The Occupying Power may refrain from spending money for the support of any activity
opposed to its military interests or to the restoration of order in the occupied territory, even if theState whose territory is occupied formerly allocated tax revenues to such activity. 425
11.22.1.4 Exemption of the Occupying Power From Local Taxation. As theparamount authority in the occupied territory, 426 the Occupying Power is exempt fromindigenous taxation in the occupied territory unless it specifically waives its sovereign immunity

pertain to anyone whose authority is temporary and military, as described. However, while no one disputes thetheoretical base of this doctrine, it does not of necessity create a limitation on the power to impose taxation if thebenefit and requirements of the territory deem it necessary, since the maintenance of proper balance between themand the requirements of the ruling army is a constant central guiding principle of military government. This
character of military government indeed explains why taxes may be imposed only for the requirements of theterritory (or requirements of the army when army contributions are involved), but it does not necessarily lead to theconclusion that the limitation on the imposition of taxes also takes precedence over the obligation to satisfy theneeds of the territory and its inhabitants, and as far as possible, to restore normal life, including the economic aspect
thereof.”).
421

Refer to § 11.22.2 (Contributions); § 11.22.3 (Customs Duties).

422

Refer to § 11.1.2.5 (Occupation and U.N. Security Council Resolutions).

423
1956 FM 27-10 (Change No. 1 1976) ¶425b (“Surplus. The first charge upon such taxes is for the cost of theadministration of the occupied territory. The balance may be used for the purposes of the occupant.”).
424

See also VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 151 (“It should be pointed out in this connectionthat as long as it is a duty of the occupant to restore order and public safety in the territory, the expenditures incurredby him as administrator for the benefit of the territory and its inhabitants should be paid for by the beneficiaries.
This appears to be particularly true in the case of capital expenditures. Normally an occupant would be unwilling topermit heavy capital outlays in occupied enemy territory (such as the construction of dams, power stations, canals,
and public buildings), but if, in rare instances, permission would be granted for such extraordinary outlays over andabove normal operating expenses of the native administration, then the necessary funds should come from any
excess revenues collected by the indigenous agencies, not from the occupant’s own reserves.”).
425

VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 150 (“Obviously no occupant need spend money for the
support of any activity opposed to his military interests or to the restoration of order in the area, even if the absent
legitimate sovereign formerly allocated tax revenues to such activity.”).

426

Refer to § 11.8.1 (Paramount Authority of the Occupying Power Over Government Functions in Occupied
Territory).

827

and consents to be taxed. 427 Its personnel are also generally exempt from local taxation, as partof their immunity from local law. 428
In practice, the Occupying Power often issues an order specifying that no direct taxes ofany kind may be levied or assessed within the occupied territory on the persons, agencies,
property, instrumentalities, or transactions of the Occupying Power. 429
11.22.1.5 Scope of the Occupying Power’s Power to Collect Taxes. The power of
the Occupying Power to collect taxes extends only to persons or property under its actual
control. 430 For example, persons and property wholly outside occupied territory generally may
not be taxed, 431 but the property of the absent inhabitants that is within the occupied territory
may be taxed.
11.22.1.6 Social Welfare Taxes. An Occupying Power is often an employer of
local civilian labor. Local law may provide that employers are responsible for the deduction andtransfer to indigenous agencies of unemployment, health insurance, pensions, and similar welfare
contributions. However, generally the agencies of the Occupying Power do not act as a collector
for the local authorities, and will not be responsible for the employer’s share of such welfare
taxes. On the other hand, the inhabitants retain their obligation to pay their share of suchcontributions out of their remuneration. 432
11.22.2 Contributions. If, in addition to continuing to collect taxes under the existing lawof the occupied territory as permitted by Article 48 of the Hague IV Regulations, the Occupying427

VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 153-54 (“[A]n occupant is virtually exempt fromindigenous taxation in an occupied territory unless he takes the rather unlikely step of waiving his sovereign
immunity and consents to be taxed. In actual practice the occupation authorities normally issue an order to theeffect that no direct taxes of any kind may be levied within the occupied area on the persons, agencies, or propertyof the armed forces of the invader and that no direct taxes may be assessed against the property, instrumentalities ortransactions of the occupying authorities themselves.”).
428

Refer to § 11.8.5 (Immunity of Occupation Personnel From Local Law).

429

For example, Coalition Provisional Authority Order No. 17, Status of the Coalition Provisional Authority, MNFIraq, Certain Missions and Personnel in Iraq, §10(1) (Jun. 27, 2004) (“The MNF, Sending States and Contractors
shall be exempt from general sales taxes, Value Added Tax (VAT), and any similar taxes in respect of all local
purchases for official use or for the performance of Contracts in Iraq.”).
430

J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 197 (“It must be remembered that the power of theoccupant to collect taxes is purely de facto and territorial, i.e., it extends only to persons or property under his actual
control.”).
431

Cf. MacLeod v. United States, 229 U.S. 416, 432-33 (1913) (“A state of war as to third persons continued until
the exchange of treaty ratifications, and, although rice, not being contraband of war, might have been imported, theauthority of the military commander, until the exchange of ratifications, may have included the right to control
vessels sailing from Manila to trade in the enemy’s country and to penalize violations of orders in that respect. But
whatever the authority of the commander at Manila or those acting under his direction to control shipments by
persons trading at Manila and in vessels sailing from there of American registration, such authority did not extend to
the second collection of duties upon a cargo from a foreign port to a port occupied by a de facto government which
had compulsorily required the payment of like duties.”).

432
VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 153 (“An inhabitant of the occupied territory will retain
his obligation to pay such contributions out of his remuneration as approved local law demands, but must pay theamounts due from his take-home pay to whatever native agency is responsible for the collection of the funds.”).

828

Power levies other money contributions in the occupied territory, this shall only be for the needsof the army or the administration of the territory in question. 433
11.22.2.1 Prohibited Purposes for Levying Contributions. Contributions may not
be levied for other than the needs of the occupying forces and the administration of the occupied
territory. For example, contributions may not be levied:•for the enrichment of the Occupying Power;•

for the payment of war expenses generally; 434•

for the purposes of collective punishment; 435 or•for the purposes of impoverishing the population in order to pressure the enemy to sue forpeace. 436

11.22.2.2 Methods of Levying Contributions. No contribution shall be collected
except under a written order, and on the responsibility of a “Commander-in-chief.” 437 The term“Commander-in-chief” may be understood to refer to the highest military officer charged withthe administration of the occupied territory. 438 Commanders of small units or detachments may
not order the collection of contributions. 439
The collection of contributions shall only be effected as far as possible in accordancewith the rules of assessment and incidence of the taxes in force. 440
For every contribution, a receipt shall be given to the contributors. 441 The receipt is
intended to secure for the contributors the possibility of being indemnified afterward by their
433

HAGUE IV REG. art. 49 (“If, in addition to the taxes mentioned in the above article, the occupant levies othermoney contributions in the occupied territory, this shall only be for the needs of the army or the administration of
the territory in question.”).

434

1956 FM 27-10 (Change No. 1 1976) ¶428b (“Prohibited Purposes. Contributions may not be levied for theenrichment of the occupant, for the payment of war expenses generally, or for other than the needs of the occupying
forces and the administration of the occupied territory.”).
435

Refer to § 11.6.2.2 (Prohibition Against General Penalties in Occupied Territory).

436

J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 177 (“They may not be imposed for the purpose ofenriching the occupant or for impoverishing the population and thus exerting pressure on it to sue for peace.”).
437

HAGUE IV REG. art. 51 (“No contribution shall be collected except under a written order, and on the
responsibility of a Commander-in-chief.”).
438

J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 182 (“Seemingly the term ‘commander in chief' refers
to the highest military officer charged with the administration of the occupied territory.”).

439

J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 181 (“Levies of contributions by commanders ofsmall units or detachments are prohibited.”).
440

HAGUE IV REG. art. 51 (“The collection of the said contribution shall only be effected as far as possible inaccordance with the rules of assessment and incidence of the taxes in force.”). Compare § 11.22.1.2 (Changes inTaxes or New Taxes).
441

HAGUE IV REG. art. 51 (“For every contribution a receipt shall be given to the contributors.”).

829

own government, and does not imply a promise of reimbursement by the Occupying Power. 442
11.22.2.3 Forced Loans. The Occupying Power may seek contributions from theinhabitants of an occupied territory in the form of forced loans. The Occupying Power isrequired to repay such loans. As forced loans are viewed as a form of contribution, they aregoverned by the rules applicable to contributions. 443
11.22.2.4 Non-Cash Contributions. As contributions are money demands,
commodities may not be exacted as contributions. However, if the inhabitants of the occupied
territory use certain commodities, rather than money, as a medium of exchange and receivable inpayment of tax obligations, contributions in-kind limited to such commodities would bepermissible. 444 Additionally, if the Occupying Power finds it difficult to secure prompt money
payment, it may accept securities and bills of exchange from contributors in lieu of money. 445
11.22.3 Customs Duties. The Occupying Power has the right to continue to exact
existing duties, as part of its right to collect existing taxes. 446 Such collection must comply withthe rules for the collection of existing taxes. 447
The Occupying Power may also exact new duties as a form of contributions leviedagainst the enemy or its trade. 448 Such new duties must comply with the rules for
442

J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 183-84 (“There is no obligation imposed by theHague Regulations for the reimbursement of contributions. The receipt required to be given the contributors isevidence that money has been exacted but implies no promise to pay by the occupant. The receipt is intended tosecure to the contributors ‘the possibility of being indemnified afterwards by their own government’.”).
443

J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 184 (“A forced loan is an involuntary exaction ofmoney imposed on the inhabitants by the occupant which the latter is bound to repay. It is a form of contribution
and differs from the latter only in that there is a duty of returning the money exacted. The same rules that govern
contributions apply to forced loans.”).

444

J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 182-83 (“In primitive communities somecommodities may be the medium of exchange and receivable in payment of tax obligations. In such circumstances
contributions in kind limited to such commodities would seemingly be permissible as being contributions inmoney.”).
445

J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 183 (“An occupant who finds it difficult to secure
prompt money payments may accept securities and bills of exchange from the contributors in lieu of money. This
practice was used by the Germans in the Franco-German War of 1870.”).
446

Dooley v. United States, 182 U.S. 222, 230 (1901) (“Upon the occupation of the country by the military forces of
the United States, the authority of the Spanish Government was superseded, but the necessity for a revenue did notcease. The government must be carried on, and there was no one left to administer its functions but the militaryforces of the United States. Money is requisite for that purpose, and money could only be raised by order of themilitary commander. The most natural method was by the continuation of existing duties. In adopting this method,
General Miles was fully justified by the laws of war.”).
447

Refer to § 11.22.1 (Taxes).

448

For example, Coalition Provisional Authority Order No. 38, Reconstruction Levy, §1 (Sept. 19, 2003) (“1)
Notwithstanding CPA Order Number 12 or any other CPA Order suspending a tax, levy, duty, charge, withholding,fee or tariff, there shall be created a levy known as the Reconstruction Levy. 2) For the purpose of calculating theReconstruction Levy, the taxable value of goods shall consist of their total customs value assessed in accordancewith international practice. 3) The Reconstruction Levy shall be imposed at a rate of 5% of the taxable value ofgoods. The revenues from the Reconstruction Levy shall be used only to assist the Iraqi people and support the830

contributions. 449
11.22.3.1 Exemptions for Certain Relief Shipments. Relief shipments for POWs,
relief shipments for internees, and other relief consignments intended for occupied territory are
exempt from customs duties. 450
11.22.3.2 Power to Suspend Customs Duties and Tariffs or Exempt Certain
Goods. The Occupying Power may suspend customs duties and tariffs for shipment of goods
into the occupied territory. 451 It may also exempt certain types of goods (e.g., humanitarian
goods, goods for its forces) from customs duties and tariffs. 452
11.22.4 Enemy Public Debts.
11.22.4.1 Debts Owed to Occupied Territory. Many jurists have taken the viewthat the Occupying Power is generally not permitted to collect pre-occupation debts owed to thesovereign of the occupied territory, as it is not a party to the agreement originating the debt. 453
reconstruction of Iraq. It shall expire two years from the date that this Order enters into force. 4) Unless exempted
under this Order, the Reconstruction Levy shall be imposed on all goods imported into Iraq from all countries
beginning 1 January 2004.”); Fleming v. Page, 50 U.S. 603, 616 (1850) (“The person who acted in the character ofcollector in this instance, acted as such under the authority of the military commander, and in obedience to hisorders; and the duties he exacted, and the regulations he adopted, were not those prescribed by law, but by the
President in his character of commander-in-chief. The custom-house was established in an enemy’s country, as oneof the weapons of war. … The duties required to be paid were regulated with this view, and were nothing more thancontributions levied upon the enemy, which the usages of war justify when an army is operating in the enemy’s
country.”).
449

Refer to § 11.22.2 (Contributions).

450

Refer to § 9.20.4.1 (Exemption From Dues for Relief Shipments): § 10.23.4.1 (Exemption From Dues for Relief
Shipments); § 11.17.1.3 (Charges, Taxes, and Customs Duties on Collective Relief Consignments for Occupied
Territories).
451

For example, Coalition Provisional Authority Order No. 12, Trade Liberalization Policy, §1 (Jun. 8, 2003) (“Alltariffs, customs duties, import taxes, licensing fees and similar surcharges for goods entering or leaving Iraq, and allother trade restrictions that may apply to such goods, are suspended until December 31, 2003.”); Coalition
Provisional Authority Order No. 54, Trade Liberalization Policy 2004, §1 (Feb. 26, 2004) (“All customs tariffs,
duties, import taxes (not including the Reconstruction Levy imposed by CPA Order Number 38), and similarsurcharges for goods entering or leaving Iraq are suspended until the sovereign transitional Iraqi administration
imposes such charges following the CPA’s transfer of full governance authority to that administration.”).
452

Coalition Provisional Authority Order No. 38, Reconstruction Levy, §2 (Sept. 19, 2003) (“1) The following
humanitarian goods shall be exempt from the Reconstruction Levy: … e. Goods imported to be delivered as
humanitarian assistance to the people of Iraq or in support of reconstruction of Iraq. … 2) The Reconstruction Levy
shall not apply to the following persons or entities: … b) Coalition Forces;”).
453

See VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 156 (“[T]he majority of jurists concur in the view thatthe occupant cannot legally collect pre-occupation debts owed to the legitimate sovereign of the territory and at thesame time act in accordance with the prevailing rules of international law.”); U.S. ARMY, THE JUDGE ADVOCATE
GENERAL’S SCHOOL, CIVIL AFFAIRS MILITARY GOVERNMENT: SELECTED CASES AND MATERIALS 108 (1958) (“Thefirst paragraph of Article 53, HR (par. 403, FM 27-10), raises, rather than answers, the question whether theoccupant may collect debts due the ousted sovereign. The question is complicated by the argument that as statedebts constitute obligations between the debtors and the ousted sovereign and as occupation does not transfer
sovereignty, the occupant does not succeed to the privity enjoyed by the ousted sovereign. Some authorities accept
this rationale and take the position that the occupant cannot legally collect any debts due the state. See, Von Glahn,831

However, the Occupying Power may collect the debts owed to the sovereign, provided that the
debts may be legitimately characterized as realizable securities that are strictly the property of
the State (e.g., bearer instruments). 454 In addition, the Occupying Power may seize debts owed
to insurgent forces. 455
11.22.4.2 Existing Debts Owed by the Occupied Territory. The Occupying Poweris under no obligation to pay the debts owed by the occupied territory, although it may choose to
do so as a matter of policy. 456
The Occupying Power may prevent payments from being made from occupied territory toa hostile belligerent. 457
11.22.4.3 Contracting New Debt on Behalf of the Occupied Territory. In general,
the Occupying Power may not contract new debts (including through the issuance of debt
securities) on behalf of the occupied territory or collect taxes to pay interest on such debt. 458

The Occupation of Enemy Territory 156-159 (1957). Other authorities, resorting to Article 48 HR (par. 425a, FM
27-10), contend that as the occupant is obliged to defray the expenses of administration of the territory, he ought tobe authorized to collect those debts falling due during the period of his occupation. See, Stone, Legal Controls ofInternational Conflict 717 (1954).”).
454

Refer to § 11.18.5.3 (Public Personal (Movable) Property).

455

For example, In Re, Order of Major-General Otis Requiring Smith, Bell & Co., A Banking House at Manila, toTurn Over to the American Authorities One Hundred Thousand Dollars, Held by Said House as the Property of the
Insurgent Forces in the Philippines, Submitted October 10, 1899, Case No. 738, Division of Insular Affairs, War
Department in CHARLES E. MAGOON, LAW OFFICER, BUREAU OF INSULAR AFFAIRS, WAR DEPARTMENT, REPORTS
ON THE LAW OF CIVIL GOVERNMENT IN TERRITORY SUBJECT TO MILITARY OCCUPATION BY THE MILITARY FORCES
OF THE UNITED STATES 261, 262 (2nd ed., 1902) (“It is conceded that the fund seized was intended to be used for
promoting the insurrection and that the insurgents sought to utilize the bank as a means of transfer for said funds.
Under the laws and usages of war the United States may lawfully seize and retain such funds, and to that end maycompel the person having such funds, in his possession to pay over the same to the military authorities. The mostfavorable view of the conduct of the bank in attempting to perform the service rendered the insurgents herein, is toconsider the obligation assumed by the bank as creating an indebtedness to the persons associated in the insurrection
and the draft as an evidence thereof. Such indebtedness may properly be collected by the United States as a military
measure calculated to weaken the insurrection.”).
456
VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 158-59 (“Most authorities concur in the belief that an
occupant is under no obligation to pay interest on or the principal of any public debt owed by the territory, that is, by
the lawful sovereign. The occupant may, of course, choose to do so, as a matter of public policy, just as he may
decide to pay pensions hitherto charged against the absent sovereign, but ordinarily all such payments are notconsidered to constitute proper administrative expenses obligating the occupying power.”).
457

VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 156 (“The occupant may rightfully prevent all paymentsfrom the area under his control to the hostile government.”).
458

VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 159 (“Second, it is generally accepted that an occupant
may not contract new debts on behalf of the occupied territory or collect taxes to pay interest on such unlawful debt.
Some authorities differ with this conclusion and maintain that there exists an exception, based on necessity and on
the occupant’s obligation to restore and maintain order and public safety. This latter view appears reasonable,
provided that it could be demonstrated convincingly that the new indebtedness was not only required by the welfareof the native population but also constituted a fair and reasonable transaction.”). For example, Coalition Provisional
Authority Order No. 95, Financial Management Law and Public Debt Law, §4(2) (Jun. 4, 2004) (“Until such time as
the Iraqi Interim Government assumes full governance authority in accordance with Article (2)(B)(1) of the Law of832

However, new debt may be undertaken on behalf of the occupied territory if immediately
necessary for the welfare of the inhabitants of occupied territory, and if undertaking such debt
constitutes a fair and reasonable transaction. 459
11.22.4.4 Refinancing or Consolidating Existing Public Debt. The Occupying
Power may refinance or consolidate already existing public debt of the occupied territory if it isclearly in the interest of sound financial administration of that territory, and therefore of direct
benefit to the inhabitants. 460
11.22.5 Currency and Exchange Rates. The Occupying Power may leave the local
currency of the occupied area in circulation. The Occupying Power may also authorize domestic
authorities to re-issue currency if necessary for ensuring public order and safety. 461
The Occupying Power may introduce its own currency into the occupied area or issue
special currency for use in the occupied area territory, should the introduction or issuance of suchcurrency be necessary. 462 There is a long history of issuing such war currency. 463 The issuancethe Administration for the State of Iraq for the Transitional Period, the Ministry of Finance is prohibited fromissuing new debt securities if the issuance of such securities would increase the total level of Iraq’s public debt,
including obligations to the Central Bank, beyond the current level of such debt.”).
459

John W. Griggs, Attorney General, Cuba—Claims—Contracts, Jan. 19, 1899, 22 OPINIONS OF THE ATTORNEY
GENERAL 310, 311 (1900) (“The completion of the proposed contract between Dady & Co. and the city of Havanawould involve an expenditure for the benefit of that city of $14,000,000, to be secured by an issue of municipal
bonds. It is manifest that a matter of such great importance to the city of Havana, its citizens and taxpayers, ought
not to be determined without a full and complete understanding of all the facts and a thorough knowledge of thecivil law applicable thereto under the system prevailing in Cuba. … The administration of the United States in Cuba
is of a military nature, and merely temporary. No action binding the island or any of its municipalities to large
expenditures and continuing debt ought to be made, except upon grounds of immediate necessity, which in this casedo not appear to be present.”).
460

For example, Coalition Provisional Authority Order No. 95, Financial Management Law and Public Debt Law,
§1(2) (Jun. 4, 2004) (“This Order promulgates the Public Debt Law, which authorizes the Ministry of Finance toissue and pay debt securities guaranteed by the Government, and establishes certain related authorities and duties,
for the purposes of financing Government operations and promoting a stable Iraqi economy.”). See also VON
GLAHN, THE OCCUPATION OF ENEMY TERRITORY 159 (“[A]n occupant appears to be entitled to refinance or toconsolidate already existing public debts of an occupied territory if such a step is clearly in the interest of soundfinancial administration and thus for the direct benefit of the inhabitants of the area.”); J.A.G.S. TEXT NO. 11, LAW
OF BELLIGERENT OCCUPATION 232 (“Seemingly, the occupant acting as administrator of the occupied territory may
refinance or consolidate the existing indebtedness of the occupied state in the interest of sound public
administration.”).
461

For example, Coalition Provisional Authority Order No. 43, New Iraqi Dinar Banknotes, §3(1) (Oct. 14, 2003)(“The CBI [Central Bank of Iraq] is, pursuant to Article 34 of the Central Bank of Iraq Law No. 64 of 1976, as
amended, the sole authority in the Republic of Iraq vested with the power to issue legal tender currency. The CBI,
under the supervision of the CPA, shall issue New Iraqi dinar banknotes and determine the denominations, designs,
technical specifications, and other characteristics of New Iraqi dinar banknotes.”).
462

1956 FM 27-10 (Change No. 1 1976) ¶430 (“The occupying power may leave the local currency of the occupied
area in circulation. It is also authorized to introduce its own currency or to issue special currency for use only in theoccupied area, should the introduction or issuance of such currency become necessary.”); Abotiz & Co. v. Price, 99
F. Supp. 602, 611-12 (D. Utah 1951) (“Some recognized medium of exchange was necessary to keep the economic
life of the community going. And, the power of a military government in occupied enemy territory to issue military
currency cannot seriously be questioned.”).

833

of occupation currency may be necessary to counteract the enemy State’s practice of engaging ineconomic sabotage. 464
The Occupying Power may also set exchange rates for currency in occupied territory. 465
The Occupying Power’s powers to regulate currency must not be used to confiscate
private property. 466 For example, intentional debasement of currency by the establishment offictitious valuation or exchange rates, or like devices, as well as failure to take reasonable steps
to prevent inflation, with the result of enrichment of the Occupying Power, would violate
international law. 467
463

Aboitiz & Co. v. Price, 99 F. Supp. 602, 614-15 (D. Utah 1951) (“The validity of such war currency is not only
supported by these principles of international law, to which our own country has given its assent, but, it is supportedby the dictates of a sound public policy, and, there is back of it a long history of the use of war money by manynations. During our own Revolutionary War, the Continental Congress issued currency for use in British territory
occupied by the colonial troops before the Declaration of Independence. The rebel government of the ConfederateStates issued a war currency which, as we have seen, was held valid by the Supreme Court of the United States.
Moreover, the United States and her allies in World War II issued occupation currency in Sicily, Germany, andAustria. The Combined Chief of Staffs of the Supreme Allied Commander issued a directive June 24, 1943, that thetask forces use, besides regular United States coins, yellow seal dollars and besides regular British coins, British
Military Authority (BMA) notes, to supplement lire currency. The Combined Directive for Military Government inGermany, April 28, 1944, directed the Allied forces to use yellow seal dollars and British Military Authority notes(BMA), if the Reichs mark currency became inadequate. The American Directive on Military Government ofAustria, June 27, 1945, ordered our forces to use for military purposes only Allied Military Schillings.”).
464

For example, Opinion on the Legality of the Issuance of AMG (Allied Military Government) Currency in Sicily,
Sept. 23, 1943, reprinted in Occupation Currency Transactions: Hearings Before the Committees on
Appropriations Armed Services and Banking and Currency, U.S. Senate, 80th Congress, First Session, 73, 81-82(Jun. 17-18, 1947) (“The currency policies deliberately followed by the Axis in retreat were designed to make themaintenance of ‘public order and safety’ by the Allied powers as difficult as possible. The variety of forms of
economic sabotage which the Germans might use is illustrated by the seemingly opposite practices followed in
Tunisia and in Sicily. In Tunisia, the Germans distributed Bank of France notes on a grand scale, increasing wage
rates to some classes of employees manifold, patronizing the black market freely, and paying collaborationists
lavishly. … In Sicily, Mussolini went even further [than in Italy] and ordered the banks to be substantially depleted
to the point where additional new currency was urgently needed for immediate use to permit the resumption of
normal commercial activity. … Thus, the Axis practices made a ready supply of new currency even more essential
than otherwise, and provide a complete justification for the use of such currency under the test of the Hague
Convention.”).
465

For example, Coalition Provisional Authority Order No. 43, New Iraqi Dinar Banknotes, §5 (Oct. 14, 2003)(“The 1990 dinar banknotes and the Swiss dinar banknotes and coins shall be exchanged against New Iraqi dinarbanknotes at the official conversion rates of one (1) 1990 dinar to one (1) New Iraqi dinar, and of one (1) Swissdinar to one-hundred-and-fifty (150) New Iraqi dinars.”).
466

Refer to § 11.18.6.1 (Prohibition on Confiscation of Private Property in Occupied Territory).

467

1956 FM 27-10 (Change No. 1 1976) ¶430 (“Intentional debasement of currency by the establishment offictitious valuation or exchange rates, or like devices, as well as failure to take reasonable steps to prevent inflation,
are violative of international law.”). See also Opinion on the Legality of the Issuance of AMG (Allied Military
Government) Currency in Sicily, Sept. 23, 1943, reprinted in Occupation Currency Transactions: Hearings Before
the Committees on Appropriations Armed Services and Banking and Currency, U.S. Senate, 80th Congress, First
Session, 73, 82 (Jun. 17-18, 1947) (“The Germans were roundly criticized during the First World War, and again inthis war, for introducing occupation marks and similar currency devices. … The vice of the German practice is notin the use of currency, but in the excessive issue of valueless currency as a device for stripping the occupied area ofits good and its labor for the benefit of Germany.”).

834

11.23 OTHER ECONOMIC REGULATION OF OCCUPIED TERRITORY
11.23.1 General Authority of the Occupying Power to Regulate Commercial Intercourse.
The Occupying Power has the right to regulate commercial intercourse within, into, or out of theoccupied territory. It may subject such intercourse to such prohibitions or restrictions as are
essential to the purposes of the occupation. 468 The Occupying Power also may remove existing
commercial restrictions or regulations when essential to the purposes of the occupation. 469 For
example, the Occupying Power may suspend existing customs tariffs. 470
The purposes of the occupation that justify economic regulation may include the militaryinterest of the Occupying Power, the needs of the inhabitants of occupied territory, andapplicable law of war obligations.
For example, for its military purposes, the Occupying Power may impose a moratorium
on business payments until an effective occupation government is in place in order to safeguard
financial institutions, to preserve records, and to ensure that funds and other assets of the enemy
government are not transferred without the knowledge and approval of the Occupying Power.
Similarly, for purposes of security and restoration of public order, the Occupying Power may
also take steps to prevent hoarding of supplies, to curb or prevent black markets, and to regulate
labor conditions, including strikes. 471 As another case in point, in order to fulfill its obligations
with respect to the preservation of cultural property in occupied territory, the Occupying Powermay issue commercial regulations intended to prevent illegal traffic in, and looting of, suchproperty. 472
Additional authority to regulate the economy of occupied territory may be provided by
U.N. Security Council resolutions. 473

468

1956 FM 27-10 (Change No. 1 1976) ¶376 (“The occupant has the right to regulate commercial intercourse in theoccupied territory. It may subject such intercourse to such prohibitions and restrictions as are essential to the
purposes of the occupation.”). See also WILLIAM E. BIRKHIMER, MILITARY GOVERNMENT AND MARTIAL LAW 268(1914) (“One of the most important incidents of military government is the regulation of trade with the subjugatedstate. The Occupying State has an unquestioned right to regulate commercial intercourse with conquered territory.
It may be absolutely prohibited, or permitted to be unrestricted, or such limitations may be imposed thereon as either
policy or a proper attention to military measures may justify.”).
469

2004 UK MANUAL ¶11.32 (“The occupying power may place on the occupied territory such restrictions andconditions in respect of commercial dealings as may be necessary for military purposes. For the same reasons it
may remove existing restrictions, such as current customs tariffs.”); 1958 UK MANUAL ¶530 (“The Occupant may
place such restrictions and conditions upon all commercial intercourse with the occupied territory as he may deem
suitable for his military purpose. He may likewise remove existing restrictions; for instance, he may suspend thecustoms tariff in force.”).
470

Refer to § 11.22.3.2 (Power to Suspend Customs Duties and Tariffs or Exempt Certain Goods).

471

VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 208 (“The occupant also appears to possess other powers
over private business, including the right to prevent hoarding of supplies and raw materials, the prevention of black
markets, the regulation of labor conditions, including strikes, and, in general, the power to return business conditionsin the territory to nearly normal conditions as speedily as possible.”).
472

Refer to § 11.19.1 (Obligation With Respect to the Safeguarding and Preservation of Cultural Property).

473

Refer to § 11.1.2.5 (Occupation and U.N. Security Council Resolutions).

835

11.23.2 Limit on the Overall Burdens Placed on the Economy of the Occupied Territory.
The economy of an occupied territory can only be required to bear the expenses of theoccupation, and these should not be greater than the economy of the occupied territory canreasonably be expected to bear. 474 For example, requisitions must be in proportion to theresources of the occupied territory. 475
11.23.3 Control of Business in Occupied Territory. The Occupying Power may exercise
controls over private business for the purpose of addressing the needs of the inhabitants of theoccupied territory or for military purposes, including by: (1) compelling the continued operationof a business; (2) granting of business subsidies; (3) closing down a business; or (4) assuming
control and management of a business.
The Occupying Power may compel a business to continue operations if necessary toserve the needs of the local population or for military purposes. 476 Compulsory work ofprotected persons, however, must comply with the GC. 477
The Occupying Power may take steps to increase production from private business, suchas by granting subsidies out of available governmental revenues from the occupied territory. 478
If the Occupying Power determines that the continued operation of a business isdetrimental to the interests of the local population or to the Occupying Power, the Occupying
Power may close down the business. 479
The Occupying Power may assume control and management of such a business ifnecessary to serve the needs of the local population or for military purposes. 480 Title to thebusiness in such circumstances remains with the legal owner, and if the Occupying Power earns
4741956 FM 27-10 (Change No. 1 1976) ¶364 (“The economy of an occupied country can only be required to bear
the expenses of the occupation, and these should not be greater than the economy of the country can reasonably be
expected to bear.”). See also United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR
CRIMINALS BEFORE THE IMT 239 (“The evidence in this case has established, however, that the territories occupied
by Germany were exploited for the German war effort in the most ruthless way, without consideration of the local
economy, and in consequence of a deliberate design and policy. There was in truth a systematic ‘plunder of public
or private property’, which was criminal under Article 6(b) of the Charter… . Raw materials and finished products
alike were confiscated for the needs of the German industry.”).
475

Refer to § 11.18.7 (Requisitions of Private Enemy Property).

476

VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 207 (“If the operations of a given enterprise appear
necessary to the occupant, he may compel the continuation of such operations.”).
477

Refer to § 11.20 (Labor of Protected Persons in Occupied Territory).

478

VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 207-08 (“If existing private industries fail to supply inrequired quantities such commodities as may be urgently needed by the native inhabitants or by occupants own
forces in the occupied territory, it appears to be permissible for him to undertake steps to increase production, if
necessary by subsidization out of available government revenues of the occupied area.”).
479

VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 207 (“If, on the other hand, such continued operations
appear to be against the interests of the population or of the occupying power, the latter may close down theenterprise in question.”).
480

Refer to § 11.18.3 (Property Control Measures).

836

a profit from the operation of the business, the legal owner must be indemnified, to avoid aprohibited confiscation of private property. 481
11.23.4 Regulation of External Trade. The Occupying Power may also regulate foreign
trade, including completely suspending such trade. 482 For example, the Occupying Power may
halt the export of precious metals and other valuable items that are readily converted or
exchanged on the international market, including metals such as copper, jewels, and securities. 483
Commercial relations between the occupied territory and the remaining territory of theenemy and its allies are also normally suspended. 484 Such suspension may be relaxed throughlicenses to trade. 485
11.23.5 Exchange Controls, Including Clearing Arrangements, and Asset Controls. The
Occupying Power may also institute exchange controls, including clearing arrangements, and, if
necessary, the freezing or blocking of certain assets, in order to conserve the monetary assets of
the occupied territory, as well as for security purposes. 486 For example, the Occupying Power481

VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 207 (“An occupant apparently may also lawfully place
under his direct control and management any enterprise which is held by him to be vital for his needs or the needs ofthe indigenous population. Such an assumption of management is not expropriation, for title to the property inquestion remains vested in its former owner-operator; the occupant merely assumes a temporary control and has toreturn the firm when the need for his control has passed. If the occupant earns a profit during his operation of a
private enterprise seized by him he should indemnify the owner in full for the amount of the profit, since the Hague
regulations prohibit the confiscation of private property.”).
482

VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 211-12 (“The occupant possesses a right, based on logic,
to regulate all trade between an occupied area and the outside world. ... [N]ormally, also, all commercial relations
between the area and its allies as well as the remainder of the sovereign’s territory are suspended as soon as
occupation becomes effective.”).
483

For example, Coalition Provisional Authority Order No. 12, Trade Liberalization Policy, Annex – Prohibited
Exports (Jun. 8, 2003); Coalition Provisional Authority Order No. 54, Trade Liberalization Policy 2004, Annex –Restricted Exports (Feb. 26, 2004); Coalition Provisional Authority Memorandum No. 8, Exportation of Scrap
Metal Under Order Number 12, Trade Liberalization Policy (CPA/ORD/7 June2003/12), §3 (Jan. 25, 2004)(“Effective February 1, 2004, metal, including scrap metal, shall not be exported without authorization from the
Ministry of Trade. Prior to February 1, 2004, scrap metal, excluding copper and lead, may be exported without alicense.”).
484

1956 FM 27-10 (Change No. 1 1976) ¶376 (“The commander of the occupying forces will usually find it
advisable to forbid intercourse between the occupied territory and the territory still in the possession of theenemy.”). Refer to § 12.1.1 (Traditional Rule of Non-Intercourse During War).
485

Refer to § 12.6.3.2 (Licenses to Trade).

486

1956 FM 27-10 (Change No. 1 1976) ¶430 (“The occupant may also institute exchange controls, including
clearing arrangements, in order to conserve the monetary assets of the occupied territory.”). For example, Coalition
Provisional Authority Order No. 93, Anti-Money Laundering Act of 2004, §1 (Jun. 3, 2004) (“The purpose of theAnti-Money Laundering Law is to secure financial institutions and combat instability by criminalizing the acts oflaundering money, financing crime, financing terrorism, and structuring certain transactions.”); Haw Pia v. China
Banking Corp. (Supreme Ct., Philippines 1949), Annual Digest, 1951, Case No. 203, reprinted in 43 AJIL 821-23(1949) (“As to the first question, we … hold, that the Japanese military authorities had power, under theinternational law, to order the liquidation of the China Banking Corporation and to appoint and authorize the Bankof Taiwan as liquidator to accept the payment in question, because such liquidation is not a confiscation of theproperties of the bank appellee, but a mere sequestration of its assets which require the liquidation or winding up of
the business of said bank.”) (amendment in AJIL).

837

may regulate, or even prohibit, the flow of funds between the occupied territory and othercountries, under the theory that preventing flight of capital assets is critical to maintaining orderand stability. 487 Such measures must not, however, be used to enrich the Occupying Power orotherwise circumvent the restrictions placed on requisitions, contributions, seizures, and othermeasures dealing with property. 488
11.23.6 Price Controls in Occupied Territory. The Occupying Power may regulate prices
in the occupied territory. For example, shortages of commodities and increased demand forcertain commodities in the occupied territory may result in a rise in price fluctuations requiring
the Occupying Power to resort to measures designed to maintain prices at a reasonable maximum
level. 489 However, the Occupying Power may not use its power over price controls for the
purpose of exploiting the occupied territory to its own illegal advantage. 490

487

VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 203-04 (“Thus an occupant would appear to possess theright to regulate and even to prohibit a flow of funds between an occupied territory and other countries, in view ofthe likely possibility that a capital flight would disrupt the monetary system and hence the order and safety to bepreserved by the occupant.”).
488

1956 FM 27-10 (Change No. 1 1976) ¶430 (“Such measures must not, however, be utilized to enrich theoccupant or otherwise circumvent the restrictions place on requisitions, contributions, seizures, and other measuresdealing with property.”). For example, JUDGMENT OF THE INTERNATIONAL MILITARY TRIBUNAL FOR THE TRIAL OF
THE GERMAN MAJOR WAR CRIMINALS (Indictment Count 3(E)(6) (“By a variety of financial mechanisms, they
despoiled all of the occupied countries of essential commodities and accumulated wealth, debased the local currency
systems and disrupted the local economies. They financed extensive purchases in occupied countries throughclearing arrangements by which they exacted loans from the occupied countries. They imposed occupation levies,
exacted financial contributions, and issued occupation currency, far in excess of occupation costs. They used theseexcess funds to finance the purchase of business properties and supplies in the occupied countries.”).
489

VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 209 (“A majority of jurists writing on the law ofoccupation and most military manuals on the subject approve the right of an occupant to regulate prices in occupied
territory. Shortages of every kind of commodity, ruined or damaged crops, lack of imported goods, increased
demands through requisitions or purchases by occupation forces – all these contribute to a rise in the general pricelevel unless the occupant resorts to measures designed to maintain prices at a reasonable maximum.”).
490
VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 209-10 (“Yet an unscrupulous occupant may easily
misuse his power over price controls to exploit the occupied territory to his own illegal advantage—as shown
repeatedly during the Second World War.”).

838

XII – Non-Hostile Relations Between Belligerents
Chapter Contents
12.1 Introduction
12.2 Principle of Good Faith in Non-Hostile Relations
12.3 Methods for Communication Between Belligerents
12.4 The White Flag of Truce to Initiate Negotiations
12.5 Rules for Parlementaires
12.6 Military Passports, Safe-Conducts, and Safeguards
12.7 Cartels
12.8 Capitulations – Negotiated Instruments of Surrender
12.9 Capitulations – Subjects Usually Addressed
12.10 Capitulations – Violations and Denunciation
12.11 Armistices and Other Cease-Fire Agreements
12.12 Armistices – Subjects Usually Addressed
12.13 Armistices – Violations and Denunciation
12.14 U.N. Security Council Cease-Fires
12.1 INTRODUCTION
This Chapter addresses the legal principles for non-hostile relations between belligerents
and the basic mechanisms for implementing them.
More specifically, this Chapter addresses the rules for the protection of certain personnel
engaged in non-hostile relations, such as parlementaires, and persons protected by military
passports, safe-conducts, or safeguards. In addition, this Chapter addresses certain agreements
between opposing belligerents, such as cartels, capitulations, and armistices.
12.1.1 Traditional Rule of Non-Intercourse During War. The traditional rule during
international armed conflict is that, even without any special proclamation, all intercourse
between the territories occupied by belligerent forces, including communication, transportation,and commerce, would cease. 1
The traditional rule of non-intercourse reflects a belligerent’s authority under the law of
war to limit and regulate intercourse between persons and territory controlled by or belonging tothat belligerent and persons and territory controlled by or belonging to the enemy. 2 For example,1

See 1956 FM 27-10 (Change No. 1 1976) ¶449 (“All intercourse between the territories occupied by belligerent
armies, whether by traffic, communication, travel, or in any other way, ceases. This is the general rule to beobserved without special proclamation.”); LIEBER CODE art. 86 (“All intercourse between the territories occupied bybelligerent armies, whether by traffic, by letter, by travel, or in any other way, ceases. This is the general rule, to beobserved without special proclamation.”).

2

See Hamilton v. Dillin, 88 U.S. 73, 97 (1874) (“As before stated, the power of the government to impose suchconditions upon commercial intercourse with an enemy in time of war as it sees fit is undoubted. It is a power
which every other government in the world claims and exercises, and which belongs to the government of theUnited States as incident to the power to declare war and to carry it on to a successful termination. We regard the839

States may authorize their military commanders to limit travel and trade within their areas ofoperations for security purposes. During armed conflict, States have exercised their authority tolimit intercourse with the enemy in order to avoid supporting the enemy’s war effort and in orderto speak with one voice in communications with the enemy State.
In particular, the traditional rule of non-intercourse notifies a State’s nationals and otherpersons subject to its jurisdiction that they may be liable to punishment by that State under its
domestic law and war powers if they communicate with or support the State’s enemies in war
without proper authorization. 3
Exceptions to the general rule of non-intercourse (such as communication with enemy
forces or permission to trade or travel between territories that are controlled by forces hostile toone another) have been granted on behalf of individuals only with the approval of theGovernment or the highest military authority. 4
12.1.1.1 Limitations on the Belligerent’s Authority to Regulate Intercourse. A
belligerent’s authority to regulate intercourse between territory it controls and territory controlled
by the enemy is subject to certain limitations.
Insofar as restrictions on travel and trade imposed by a belligerent affect neutral rights,
such restrictions may be limited by the law of neutrality. An Occupying Power’s authority tocontrol travel and trade during belligerent occupation is addressed by the law of occupation. 5
Under the GC, however, protected persons in a belligerent’s home country, or in territory
regulations in question as nothing more than the exercise of this power. It does not belong to the same category as
the power to levy and collect taxes, duties, and excises. It belongs to the war powers of the government, just as
much so as the power to levy military contributions, or to perform any other belligerent act.”).
3

For example, 10 U.S.C. § 904 (“Any person who-- (1) aids, or attempts to aid, the enemy with arms, ammunition,
supplies, money, or other things; or (2) without proper authority, knowingly harbors or protects or gives intelligenceto, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shallsuffer death or such other punishment as a court-martial or military commission may direct. This section does not
apply to a military commission established under chapter 47A of this title.”); Amos T. Akerman, Attorney General,
Unlawful Traffic with Indians, Jul. 19, 1871, 13 OPINIONS OF THE ATTORNEY GENERAL 470, 471-72 (1873) (“But I
observe that General Sherman, in his letter, refers to the parties apprehended by the military as having been captured‘while engaged in unlawful traffic with hostile Indians;’ and the papers submitted show that a portion of the property
employed in this trade consisted of ammunition. Now, if the Indians to whom the captured persons were thus
supplying ammunition, &c., were in open and notorious hostility to the United States at the time, and, therefore,
properly came within the description of public enemies, the parties apprehended would seem to be amenable to trial
and punishment by court-martial under the 56th article of war, which applies to persons who are not, as well as topersons who are, in the military service.”); LIEBER CODE art. 86 (“Contraventions of this rule [of non-intercourse]
are highly punishable.”).
41956 FM 27-10 (Change No. 1 1976) ¶450 (“Exceptions to this rule, whether by safe-conduct, license to trade,
exchange of mails, or travel from one territory into the other, are made on behalf of individuals only with theapproval of the Government or the highest military authority.”); LIEBER CODE art. 86 (“Exceptions to this rule,whether by safe-conduct, or permission to trade on a small or large scale, or by exchanging mails, or by travel from
one territory into the other, can take place only according to agreement approved by the government, or by thehighest military authority.”).
5Refer to § 11.12 (Movement of Persons in Occupied Territory); § 11.23.4 (Regulation of External Trade).

840

occupied by a belligerent, are entitled to leave unless such departure is contrary to the interests of
the State. 6
12.1.2 Necessity for Non-Hostile Relations. Despite the general rule of non-intercourse
during war, the conduct of war and the restoration of peace require certain non-hostile relations
between belligerents. 7
12.1.2.1 Non-Hostile Relations to Facilitate Humanitarian Activities During
Armed Conflict. Non-hostile relations, including local communication between belligerent
forces, may be necessary to facilitate the conclusion and implementation of special agreements
contemplated by the 1949 Geneva Conventions. These include:•

special agreements to facilitate the protection of the wounded, sick, shipwrecked, andmedical personnel, 8 such aso armistices or local arrangements to permit the removal, exchange, or transport of
the wounded and sick; 9•special agreements to facilitate the protection of POWs, 10 such aso agreements to effect the direct repatriation or accommodation in neutral countriesof certain seriously wounded and sick POWs during hostilities; 11 and•special agreements to facilitate the protection of civilians, 12 such aso agreements to establish areas where civilians or the wounded and sick areprotected. 13

Relatedly, non-hostile relations, including local communication between belligerent
forces, may also be necessary:•to obtain the necessary consent for the appointment of Protecting Powers; 14

6Refer to § 10.8.2 (Departures of Protected Persons From a Belligerent’s Home Territory); § 11.12.2 (Departure ofProtected Persons Who Are Not Nationals of the State Whose Territory Is Occupied).
7

1956 FM 27-10 (Change No. 1 1976) ¶451 (“The conduct of war and the restoration of peace require certain
nonhostile relations between belligerents.”).
8Refer to § 7.1.1.2 (Special Agreements Under the GWS and GWS-Sea).

9

Refer to § 7.4.3.1 (Armistices and Local Arrangements to Permit the Removal, Exchange, or Transport of the
Wounded).
10

Refer to § 9.1.2.2 (Special Agreements Under the GPW).

11

Refer to § 9.36 (Direct Repatriation and Accommodation in Neutral Countries During Hostilities).

12

Refer to § 10.1.1.2 (Special Agreements Under the GC).

13

Refer to § 5.14.3 (Establishing Areas Where Civilians or the Wounded and Sick Are Protected).

14

Refer to § 18.15.2 (Appointment of a Protecting Power).

841

•

to establish safe-conduct protections for certain persons or property under the 1949
Geneva Conventions; 15 and•to conclude special agreements applicable to a non-international armed conflict to bring
into effect treaty provisions that would normally only apply during international armed
conflict. 16

12.1.2.2 Non-Hostile Relations to Facilitate the Restoration of Peace. Nonhostile relations, including local communication between belligerent forces, may also be
important in facilitating the restoration of peace, including by facilitating:•ceasefires or local armistices that implement a general armistice;•armistices that are a prelude to a peace treaty; 17•

the permanent cessation of hostilities through a peace treaty;•

agreements on the repatriation of POWs or retained personnel after the cessation of
hostilities; 18•

measures to protect civilians from the effects of minefields, mined areas, mines, boobytraps, and other devices, such as information sharing with another party or parties to theconflict; 19 and•the provision of certain assistance to facilitate the marking and clearance, removal, or
destruction of explosive remnants of war, in cases where a user of explosive ordnancethat has become explosive remnants of war does not exercise control of the territory. 20

12.2 PRINCIPLE OF GOOD FAITH IN NON-HOSTILE RELATIONS
Absolute good faith with the enemy must be observed as a rule of conduct, including in
non-hostile relations between opposing belligerents. 21 In particular, in the context of non-hostile
relations, the principle of good faith requires that:•compacts between enemies, such as truces and capitulations, shall be faithfully adhered

15

Refer to § 12.6.3.3 (Safe-Conducts Contemplated by the 1949 Geneva Conventions).

16

Refer to § 17.3 (Special Agreements Between Parties to the Conflict).

17

Refer to § 12.11.1.2 (Armistice as a Suspension of Hostilities and Not a Peace Treaty).

18

Refer to § 9.37.1 (Agreements on POW Release and Repatriation).

19

Refer to § 6.12.12 (Obligations Arising After the Cessation of Active Hostilities).

20

Refer to § 6.20.8 (Providing Assistance to Facilitate the Removal of Explosive Remnants of War From a Party’s
Military Operations in Areas Outside Its Control).

21

Refer to § 5.21 (Overview of Good Faith, Perfidy, and Ruses).

842

to; 22•no advantage not intended to be given by the adversary shall be taken; 23 and•the means of conducting non-hostile relations (such as flags of truce) must not be
misused. 24
On the other hand, the principle of good faith does not prohibit belligerents from:•continuing their military operations while negotiations are ongoing; 25 or•

declining to respond to offers to negotiate, refusing offers to negotiate, or refusing
specific offers from the adversary for reasons of military expediency. 26

12.3 METHODS FOR COMMUNICATION BETWEEN BELLIGERENTS
Belligerents may communicate with one another through a variety of methods, including:•

directly by telecommunications; 27

22

Daniel Webster, Secretary of State, Letter to Waddy Thompson, Esq., Envoy Extraordinary and Minister
Plenipotentiary of the United States to the Mexican Republic, Apr. 15, 1842, reprinted in THE DIPLOMATIC AND
OFFICIAL PAPERS OF DANIEL WEBSTER, WHILE SECRETARY OF STATE 321, 331 (1848) (“If there is one rule of thelaw of war more clear and peremptory than another, it is that compacts between enemies, such as truces andcapitulations, shall be faithfully adhered to; and their non-observance is denounced as being manifestly at variancewith the true interest and duty; not only of the immediate parties, but of all mankind.”).
23

1956 FM 27-10 (Change No. 1 1976) ¶453 (“It is absolutely essential in all nonhostile relations that the most
scrupulous good faith shall be observed by both parties, and that no advantage not intended to be given by theadversary shall be taken.”).
24

2004 UK MANUAL ¶10.2 (“Whenever there are non-hostile relations between parties to an armed conflict, thoserelations must be conducted with the utmost good faith and any agreement reached scrupulously observed. In
particular, there should be no abuse of a flag of truce or emblems of identification in dealings between
belligerents.”).
25

For example, Donald W. Boose, Jr., Fighting While Talking: The Korean War Truce Talks, OAH MAGAZINE OFHISTORY, 25, 27 (Spring 2000) (“The truce talks resumed on 26 April [1953], and the two sides quickly agreed on
the broad outlines of a plan to deal with the POW issue through a Neutral Nations Repatriation Commission
composed of the same members as the Neutral Nations Supervisory Commission, in addition to India. There werestill unresolved issues, however. The U.S. leadership, losing patience with the slow pace of negotiations, now
attempted to use military action to pressure the Chinese and North Koreans. In May U.S. aircraft attacked irrigation
dams near Pyongyang, disrupting rail lines and roads and further straining the North Korean infrastructure. Then on
20 May Eisenhower and his advisors decided that if no progress were made, the UNC would initiate a military
offensive that might include attacks on China and the use of nuclear weapons.”).
26

Refer to § 12.5.2 (Refusal or Reception of a Parlementaire).

27

For example, James Reston, Ridgway in Offer; Key Figure in Truce Plan Receives a Visitor U.S. Asks Commandof Reds to Parley, THE NEW YORK TIMES, Jun. 30, 1951 (“In accordance with Presidential instructions
recommended by the National Security Council and dispatched from the Pentagon at 1:27 o’clock this afternoon,
Gen. Matthew B. Ridgway of the United States broadcast the following message at 6 P.M. to ‘The Commander in
Chief, Communist Forces in Korea’:”).

843

•

through the traditional mechanism of a display of a flag of truce and the sending ofparlementaires; 28•

in conferences between belligerent representatives in an agreed neutral zone; 29•

through international organizations, such as the United Nations;•indirectly through another State, such as a Protecting Power; 30 and•indirectly through the ICRC or other impartial humanitarian organization. 31

12.4 THE WHITE FLAG OF TRUCE TO INITIATE NEGOTIATIONSIn the past, the normal means of initiating negotiations between belligerents has been thedisplay of the white flag of truce. 32
12.4.1 Meaning of the White Flag—a Desire to Communicate. As a legal matter, thewhite flag, when used by military forces, indicates a desire to communicate with the enemy. The
hoisting of a white flag has no other legal meaning in the law of war. 33
The hoisting of a white flag may indicate that the party hoisting it desires to open
communication with a view to an armistice (e.g., to enable forces to collect the wounded) or asurrender. 34 If hoisted during a military action by an individual combatant or a small party of
combatants, it may signify merely that those persons or forces wish to surrender. 35 Although thewhite flag has been used with this intent, the display of the white flag does not necessarily meanthat the person or forces displaying it are prepared to surrender. Moreover, enemy forces in theimmediate area might not have the same intent as the individual or forces displaying the whiteflag, especially where the display of the white flag was not authorized by the individual or28

Refer to § 12.4 (The White Flag of Truce to Initiate Negotiations); § 12.5 (Rules for Parlementaires).

29

Refer to § 12.5.5 (Neutral Zone and Other Appropriate Measures to Facilitate Negotiations).

30

For example, Acceptance of Germany’s Offer Concerning Prisoners of War, Apr. 23, 1945, 12 DEPARTMENT OF
STATE BULLETIN 810 (Apr. 29, 1945) (“The Department of State and the War Department announced on April 23that the Government of the United States has accepted an offer of the German Government to leave in camps all
prisoners of war as the Allies advance. The proposal of the German Government was made to the United States
through the Swiss Government as protecting power.”).
31

1956 FM 27-10 (Change No. 1 1976) ¶452 (“One belligerent may communicate with another directly by radio,
through parlementaires, or in a conference, and indirectly through a Protecting Power, a third State other than aProtecting Power, or the International Committee of the Red Cross.”).
32

1956 FM 27-10 (Change No. 1 1976) ¶458 (“In the past, the normal means of initiating negotiations between
belligerents has been the display of a white flag.”).
33

1956 FM 27-10 (Change No. 1 1976) ¶458 (“The white flag, when used by troops, indicates a desire tocommunicate with the enemy. The hoisting of a white flag has no other signification in international law.”).
34

1956 FM 27-10 (Change No. 1 1976) ¶458 (“It may indicate that the party hoisting it desires to open
communication with a view to an armistice or a surrender.”).
35

1956 FM 27-10 (Change No. 1 1976) ¶458 (“If hoisted in action by an individual soldier or a small party, it may
signify merely the surrender of that soldier or party.”).

844

force’s commander.
12.4.2 Rules for the Party Displaying the White Flag. Forces displaying a flag of truce
must show clearly that they intend to engage in non-hostile relations. They bear the burden ofcommunicating their intent to the adversary.
To indicate that the hoisting of the white flag is authorized by its commander, theappearance of the flag should be accompanied or followed promptly by a complete cessation offire from that side. 36
The commander authorizing the hoisting of the flag should also promptly send aparlementaire to communicate the commander’s intent. 37
12.4.2.1 Prohibition on Improper Use of the Flag of Truce. It is especiallyforbidden to make improper use of a flag of truce. 38 It would be improper to use a flag of truce
to feign an intention to negotiate, surrender, or otherwise suspend hostilities when there is nosuch intention. 39
It is an abuse of the flag of truce if the force that sends a parlementaire does not halt andcease fire while the parlementaire is approaching, or is being received by, the other party. 40
Improper use of a flag of truce also includes its use while engaging in attacks or in orderto shield, favor, or protect one’s own military operations, or otherwise to impede enemy military
operations. 41 For example, flags of truce may not be used surreptitiously to obtain military
information, or with the purpose of obtaining time to effect a withdrawal, secure reinforcements,

36

1956 FM 27-10 (Change No. 1 1976) ¶458 (“To indicate that the hoisting is authorized by its commander, theappearance of the flag should be accompanied or followed promptly by a complete cessation of fire from thatside.”); 1958 UK MANUAL ¶395 (“It is essential, however, that the troops who hoist the white flag to indicate a wish
to enter into communication with the enemy, should halt and cease firing, for otherwise the enemy cannot be certainthat the hoisting of the white flag is authorised.”).
37

1956 FM 27-10 (Change No. 1 1976) ¶458 (“The commander authorizing the hoisting of the flag should also
promptly send a parlementaire or parlementaires.”).
38

HAGUE IV REG. art. 23(f) (it is especially forbidden “[t]o make improper use of a flag of truce”). Consider AP I
art. 38(1)(a) (“It is also prohibited to misuse deliberately in an armed conflict other internationally recognizedprotective emblems, signs or signals, including the flag of truce, and the protective emblem of cultural property.”).

39

Cf. 10 U.S.C. § 950t (18) (“Any person subject to this chapter who uses a flag of truce to feign an intention tonegotiate, surrender, or otherwise suspend hostilities when there is no such intention shall be punished as a militarycommission under this chapter may direct.”).

40

1958 UK MANUAL ¶415 (“The improper use of a flag of truce is forbidden. It is an abuse of the flag of truce if theforce which sends a parlementaire does not halt and cease fire whilst the parlementaire is approaching, or is being
received by, the other party.”); 1956 FM 27-10 (Change No. 1 1976) ¶467 (“It is an abuse of the flag of truce,
forbidden as an improper ruse under Article 23 (f), HR (par. 52), for an enemy not to halt and cease firing while theparlementaire sent by him is advancing and being received by the other party;”).
41

Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military
Operations).

845

resupply, or conduct other operations. 42
12.4.3 Rules for the Party to Whom the White Flag Is Displayed. A party is not required
to cease firing or other military operations when a white flag is raised by the other side. 43
It is essential to determine with reasonable certainty that the flag is shown by actual
authority of the enemy commander before basing important action upon that assumption. 44 For
example, forces should not assume that all enemy forces in the locality intend to surrender andexpose themselves to hostile fire based on the enemy’s display of a white flag. 45
Fire must not be directed intentionally on the person carrying the white flag or on persons
near him or her unless there is a clear manifestation of hostile intent by those persons. 46
12.5 RULES FOR PARLEMENTAIRES
After the display of the white flag, a parlementaire would be sent to conduct
negotiations, traveling under the display and protection of the white flag of truce.
12.5.1 The Parlementaire and Party. Parlementaires ordinarily are agents employed bycommanders of belligerent forces in the field, to go in person within the enemy lines, for the42

LIEBER CODE art. 114 (“If it be discovered, and fairly proved, that a flag of truce has been abused for
surreptitiously obtaining military knowledge, the bearer of the flag thus abusing his sacred character is deemed aspy. So sacred is the character of a flag of truce, and so necessary is its sacredness, that while its abuse is anespecially heinous offense, great caution is requisite, on the other hand, in convicting the bearer of a flag of truce asa spy.”); 1958 UK MANUAL ¶416 (“It is also an abuse of the flag of truce to use a white flag for the purpose of
making the enemy believe that a parlementaire is about to be sent when there is no such intention, and to carry out
operations under the protection granted by the enemy to the pretended flag of truce.”).
43

1956 FM 27-10 (Change No. 1 1976) ¶458 (“The enemy is not required to cease firing when a white flag israised.”); LIEBER CODE art. 112 (“Firing is not required to cease on the appearance of a flag of truce in battle.”).
44

1956 FM 27-10 (Change No. 1 1976) ¶458 (“It is essential, therefore, to determine with reasonable certainty thatthe flag is shown by actual authority of the enemy commander before basing important action upon thatassumption.”).
45

For example, 2004 UK MANUAL ¶10.5.2 footnote 10 (“A British officer was killed at Goose Green during the
Falklands conflict 1982 when moving towards a white flag. The shots were not fired by those displaying the whiteflag, but by others in the vicinity.”); SPAIGHT, WAR RIGHTS ON LAND 92-93 (“At Spion-Kop, some of the British
troops in an advanced trench on the mountain held up handkerchiefs in token of surrender, and the Boers cameforward to take them prisoners; they were fired upon by the other British soldiers, and some of them and also someof the prisoners were shot. Presidents Kruger and Steyn protested against this ‘abuse of the white flag,’ but theprotest cannot be upheld. For the particular men who put up the signal of surrender to have fired on their captors
would have been treachery, but their comrades were not bound by their action; the surrender was not authorised andthe main body of the British troops on the hill were perfectly entitled to disregard it and to fire both on their own
men who surrendered and on the enemy disarming them.”).
46
1956 FM 27-10 (Change No. 1 1976) ¶461 (“Fire should not be intentionally directed on parlementaires or thoseaccompanying them.”); 1958 UK MANUAL ¶396 (“Fire must not be directed intentionally on the person carrying thewhite flag or on persons near him.”).

846

purpose of communicating or negotiating openly and directly with the enemy commander. 47
12.5.1.1 Parlementaire – Notes on Terminology. The term parlementaire isderived from “parley” and was adopted by governments at the First Hague Peace Conference in
1899. 48 These provisions were repeated in the 1907 Hague IV Regulations.
Article 32 of the Hague IV Regulations provides that “a person is regarded as bearing aflag of truce who has been authorized by one of the belligerents to enter into communication
with the other, and who advances bearing a white flag.” 49 Although the word parlementaire has
been translated as a person bearing a flag of truce, the parlementaire need not physically carry
the white flag. 50
12.5.1.2 Authorization and Credentials of the Parlementaire. A parlementairemust be authorized by a belligerent to enter into communications with the other side. 51 To
demonstrate the authorization to negotiate, a parlementaire must be duly authorized in a written
instrument signed by the commander of his or her forces. 52
12.5.1.3 Members of a Parlementaire Party. A parlementaire may come alone, or
he or she may request to have others, such as an interpreter, accompany him or her. In the past,
flag-bearers or drummers accompanied parlementaires to reduce the risk that the parlementaires
would be inadvertently attacked. 53 In modern warfare, members of a parlementaire’s party may
include, for example, a driver and communications personnel, and they would take similar

47

1956 FM 27-10 (Change No. 1 1976) ¶459 (“Parlementaires are agents employed by commanders of belligerent
forces in the field, to go in person within the enemy lines, for the purpose of communicating or negotiating openly
and directly with the enemy commander.”).
48

1958 UK MANUAL ¶389 (“The usual agents in the non-hostile intercourse of belligerent armies are known asparlementaires.”); 1958 UK MANUAL ¶389 note 1 (“It has been thought desirable to adopt this term, for which theancient verb ‘to parley’ would seem good authority, from the Hague Rules; it is current in other armies, in addition
to the expression ‘flag of truce’. The use of the latter term by British manuals in the past to mean sometimes boththe envoy and the emblem, sometimes only the envoy, and at other times the envoy and his attendants, has given rise
to some confusion. The use of the expression ‘bearer of a flag of truce’ to signify the principal agent is also
misleading, as he is seldom the actual bearer of the flag.”).
49

HAGUE IV REG. art. 32.

501914 RULES OF LAND WARFARE ¶235 note 1 (“The adoption of the word ‘parlementaire’ to designate anddistinguish the agent or envoy seems absolutely essential in order to avoid confusion and because all other nations,
including Great Britain, utilize the word. In the past this word has been translated at times to mean the agent or
envoy only, at other times the agent and emblem, or both. To call the parlementaire ‘the bearer of a flag of truce’ is
not in reality correct, because he seldom, if ever, actually carries it.”).
51

HAGUE IV REG. art. 32 (“A person is regarded as bearing a flag of truce who has been authorized by one of thebelligerents to enter into communication with the other, and who advances bearing a white flag.”).

52

1956 FM 27-10 (Change No. 1 1976) ¶462 (“Parlementaires must be duly authorized in a written instrument
signed by the commander of the forces.”).
53

HAGUE IV REG. art. 32 (“A person is regarded as bearing a flag of truce who has been authorized by one of thebelligerents to enter into communication with the other, and who advances bearing a white flag. He has a right toinviolability, as well as the trumpeter, bugler or drummer, the flag-bearer and interpreter who may accompany
him.”).

847

measures to make their status and purpose clear to the other side. 54
12.5.2 Refusal or Reception of a Parlementaire. The commander to whom a flag of truce
is sent is not in all cases obliged to receive it. 55 A commander may decline to receive aparlementaire for reasons of military necessity, such as if the reception of the parlementaire
would interfere with the commander’s operations. 56 However, a belligerent may not declare
beforehand, even for a specified period – except in case of reprisal for abuses of the flag of truce– that it will not receive parlementaires. 57
A commander may declare the formalities and conditions upon which he or she will
receive a parlementaire and fix the hour and place at which the parlementaire must appear. 58
The receiving commander may set the details of the meeting, such as the time, place, number of
persons accompanying the parlementaire, authorized method of transport (e.g., foot or vehicle),and the frequency of meetings if more than one will take place. For example, the receiving
commander may limit the size of the parlementaire’s party and need not allow an unnecessary
repetition of parlementaire visits. 59
Although commanders may refuse to receive parlementaires and other enemy envoys
seeking to negotiate, commanders may not refuse the unconditional surrender of the adversary or
declare that they will refuse unconditional surrender. 60
12.5.3 Duties and Liabilities of the Parlementaire. Persons who display a white flag
during combat accept the risk that they might be inadvertently wounded or killed while
attempting to communicate with opposing forces. 61 Parlementaires bear the burden of
54

See also 2004 UK MANUAL ¶10.4 footnote 5 (“Although the reference here is to ‘trumpeter, bugler or drummer,
the flag bearer and interpreter who may accompany him’, in modern warfare, the party is more likely to consist of adriver and radio operator, together with an interpreter. The interpreter will not necessarily be a member of thearmed forces and may be a civilian. The white flag will most likely be attached to the vehicle conveying theparty.”).

55

HAGUE IV REG. art. 33 (“The commander to whom a flag of truce is sent is not in all cases obliged to receive it.”).
See also LIEBER CODE art. 111 (“The bearer of a flag of truce cannot insist upon being admitted. He must always beadmitted with great caution. Unnecessary frequency is carefully to be avoided.”).

56

1958 UK MANUAL ¶398 (“The commander to whom a parlementaire is sent is not obliged to receive him in everycase. There may be a movement in progress the success of which depends on secrecy, or owing to the state of the
defences, it may be considered undesirable to allow an envoy to approach a besieged locality.”).

57

1956 FM 27-10 (Change No. 1 1976) ¶464 (“The present rule is that a belligerent may not declare beforehand,even for a specified period -- except in case of reprisal for abuses of the flag of truce -- that he will not receive
parlementaires.”).
58

1956 FM 27-10 (Change No. 1 1976) ¶464 (“A commander may declare the formalities and conditions uponwhich he will receive a parlementaire and fix the hour and place at which he must appear.”).
59

See, e.g., 1956 FM 27-10 (Change No. 1 1976) ¶464 (“An unnecessary repetition of visits need not be allowed.”);LIEBER CODE art. 111 (“Unnecessary frequency is carefully to be avoided.”).
60

Refer to § 5.4.7 (Prohibition Against Declaring That No Quarter Be Given); § 5.9.3 (Persons Who Have
Surrendered).
61

1956 FM 27-10 (Change No. 1 1976) ¶461 (“If, however, the parlementaires or those near them present
themselves during an engagement and are killed or wounded, it furnishes no ground for complaint.”); LIEBER CODE

848

communicating their status to the enemy. 62 They should take appropriate measures to help
clarify their status to enemy forces. For example, the parlementaire’s party should move slowly
and deliberately so that it is not inadvertently attacked. 63
While within the lines of the enemy, the parlementaire must obey all instructions given
to him or her. The parlementaire may be required to deliver his or her message to a subordinateof the commander. 64
12.5.4 Rights of Inviolability of the Parlementaire. A parlementaire and members of theparlementaire’s party (e.g., an interpreter) have a right to inviolability. 65 For example, it would
be a serious violation of good faith to attack deliberately a parlementaire’s party that has been
received and acknowledged. 66
12.5.4.1 Security Measures Are Consistent With Inviolability. The receiving
commander, however, may take all the necessary steps to prevent the envoy from taking
advantage of his or her mission to obtain information. 67 For example, the envoy and the envoy’s
interpreter may be blindfolded or hooded for security purposes. 68
12.5.4.2 Loss of Rights of Inviolability of Parlementaire. A parlementaire loses
his or her rights of inviolability if it is proved in a clear and uncontestable manner that he or she
has taken advantage of his or her privileged position to provoke or commit an act of treachery. 69
Such acts of treachery include sabotage or the secret gathering of information about theart. 113 (“If the bearer of a flag of truce, presenting himself during an engagement, is killed or wounded, it furnishes
no ground of complaint whatever.”).
62

See 1956 FM 27-10 (Change No. 1 1976) ¶461 (“It is the duty of the parlementaire to select a propitious momentfor displaying his flag, such as during the intervals of active operations, and to avoid dangerous zones by making adetour.”); 1958 UK MANUAL ¶396 (“It is for the parlementaire to wait until there is a propitious moment, or to makea detour to avoid a dangerous zone.”).
63

See 1958 UK MANUAL ¶402 note 1 (“Unfortunate incidents may occur if the parlementaire arrives at or leaves theenemy lines at speed as he may draw fire before he is recognised.”).

64

1956 FM 27-10 (Change No. 1 1976) ¶464 (“While within the lines of the enemy, the parlementaire must obey all
instructions given him. He may be required to deliver his message to a subordinate of the commander.”).
65

HAGUE IV REG. art. 32 (“A person is regarded as bearing a flag of truce who has been authorized by one of thebelligerents to enter into communication with the other, and who advances bearing a white flag. He has a right toinviolability, as well as the trumpeter, bugler or drummer, the flag-bearer and interpreter who may accompany
him.”).
66

George H. Williams, Attorney General, The Modoc Indian Prisoners, Jun. 7, 1873, 14 OPINIONS OF THE
ATTORNEY GENERAL 249, 250 (1875) (“According to the laws of war there is nothing more sacred than a flag oftruce dispatched in good faith, and there can be no greater act of perfidy and treachery than the assassination of its
bearers after they have been acknowledged and received by those to whom they are sent.”).
67

HAGUE IV REG. art. 33 (“[The commander to whom a flag of truce is sent] may take all the necessary steps toprevent the envoy taking advantage of his mission to obtain information.”).

68

SPAIGHT, WAR RIGHTS ON LAND 217-18 (“[I]t is no indignity for a parlementaire, however high his rank, to have
his eyes bandaged.”).

69

HAGUE IV REG. art. 34 (“The envoy loses his rights of inviolability if it is proved in a clear and incontestablemanner that he has taken advantage of his privileged position to provoke or commit an act of treachery.”).

849

adversary while under the adversary’s protection. 70
A parlementaire does not commit an act of treachery if he or she reports what he or she
observed in plain sight during his or her mission. 71
12.5.4.3 Detention of Parlementaire. In case of abuse of a flag of truce, acommander to whom a flag of truce is sent has the right to detain the envoy temporarily. 72
In addition to the right of detention for abuse of his or her position, a parlementaire may
be detained for other imperative security reasons. For example, a parlementaire admitted during
an engagement may be detained pending the conclusion of the immediate fighting. 73 In addition,a parlementaire may be detained in case he or she has seen anything that may be detrimental tothe enemy, or otherwise obtained such knowledge, or if the envoy’s departure would reveal
information on the movement of forces. 74
A parlementaire should be detained only so long as circumstances imperatively require,
and information regarding the parlementaire’s detention, as well as any other action against theparlementaire or against any member of the parlementaire’s party, should be sent to his or hercommander. 75
12.5.5 Neutral Zone and Other Appropriate Measures to Facilitate Negotiations. If it isanticipated that negotiations between belligerents may be prolonged, a neutralized area may by

70

1958 UK MANUAL ¶410 note 1 (“Examples of a parlementaire abusing his position are the making of sketch maps
or taking photographs of defense positions and the secret gathering of information.”).

71

1958 UK MANUAL ¶408 (“A parlementaire is not, however, forbidden to observe, and afterwards report, what his
enemy does not hide.”); SPAIGHT, WAR RIGHTS ON LAND 219 (“It is for the commander who receives the flag oftruce to ensure that the bearer gains no information, whether by sight or speech, and if he fails to take the requisite
precautions, it is palpably unjust to treat the envoy’s offense, for which his (the commander’s) contributory
negligence is partly to blame, as the very grave offence of spying.”).
72

HAGUE IV REG. art. 33 (“The commander to whom a flag of truce is sent is not in all cases obliged to receive it.
He may take all the necessary steps to prevent the envoy taking advantage of his mission to obtain information. In
case of abuse, he has the right to detain the envoy temporarily.”).

73

LIEBER CODE art. 112 (“If the bearer of a flag of truce offer himself during an engagement, he can be admitted asa very rare exception only. It is no breach of good faith to retain such flag of truce, if admitted during theengagement.”).

74

1956 FM 27-10 (Change No. 1 1976) ¶465 (“In addition to the right of detention for abuse of his position, aparlementaire may be detained in case he has seen anything or obtained knowledge which may be detrimental to theenemy, or if his departure would reveal information on the movement of troops.”); 1958 UK MANUAL ¶412(“According to the Hague Rules a commander has the right to detain a parlementaire temporarily if the latter abuses
his position. In addition, a commander has, by a customary rule of international law, the right to retain aparlementaire so long as circumstances require, if the latter has seen anything, knowledge of which might haveadverse consequences for the receiving forces, or if his departure would coincide with movements of forces whose
destination or employment he might guess. See Hague Rules 33.”).
75
1956 FM 27-10 (Change No. 1 1976) ¶465 (“He should be detained only so long as circumstances imperatively
demand, and information should be sent at once to his commander as to such detention, as well as of any otheraction taken against him or against his party.”).

850

agreement of the parties be set aside for the site of the negotiations. 76 The belligerents may
agree that no combat activity will take place within or over the area, and that forces will be
detailed to maintain the security of the area. 77 The area designated as neutral on maps
interchanged by representatives of the belligerents may be marked with searchlights, balloons,and other devices to ensure that it will not be attacked. 78
Other appropriate measures may also be agreed upon to facilitate negotiations. For
example, special signals that the parlementaire’s party should give or routes that theparlementaire’s party must take may be agreed upon to help identify the parlementaire’s party tothe opposing forces.
12.6 MILITARY PASSPORTS, SAFE-CONDUCTS, AND SAFEGUARDS
Persons within an area occupied by a belligerent may be protected from molestation orinterference through military passports, safe-conducts, and safeguards. These devices are amatter of international law only when granted or posted by arrangement with the enemy or with aneutral State. 79
12.6.1 Military Passports, Safe-Conducts, and Safeguards – Notes on Terminology. The
terms pass or permit may be used instead of passport. Pass has sometimes been used for ageneral permission to do certain things, while permit has sometimes been used like safe-conduct,
to signify permission to do a particular thing. 80
The terms military passport and safe-conduct have to some degree been used
76

1956 FM 27-10 (Change No. 1 1976) ¶468 (“If it is anticipated that negotiations between belligerents may be
prolonged, a neutralized area may by agreement of the parties be set aside for the site of the negotiations.”). For
example, Howard S. Levie, How it All Started – and How it Ended: A Legal Study of the Korean War, 35 AKRONLAW REVIEW 205, 223 (2002) (“Negotiations for an armistice began at Kaesong on July 10, 1951. Shortly
thereafter, the negotiations were moved to Panmunjom at the insistence of the UNC because Kaesong, which had
been between the two lines at the time of the negotiations of the liaison officers, had been occupied by theCommunists and they presumed to dictate who could enter the area, while Panmunjom was located in a zone
between territories occupied by the two sides. It was declared a neutral zone as were Kaesong (the Communist
Armistice Delegation headquarters), Munsan-ni (the UNC Armistice Delegation headquarters), and the roads
leading from each Delegation headquarters to Panmunjom.”).
77

1956 FM 27-10 (Change No. 1 1976) ¶468 (“The belligerents may agree that no combat activity will take place
within or over the area and that forces will be detailed to maintain the security of the area.”).
78

1956 FM 27-10 (Change No. 1 1976) ¶468 (“The area designated as neutral on maps interchanged byrepresentatives of the belligerents may be marked with searchlights, balloons, and other devices to insure that it will
not be attacked.”).
79

1956 FM 27-10 (Change No. 1 1976) ¶454 (“Persons within an area occupied by a belligerent may be protectedfrom molestation or interference through military passports, safe-conducts, and safeguards. These devices are amatter of international law only when granted or posted by arrangement with the enemy.”); 1958 UK MANUAL ¶495(“Safeguards, like passports and safe-conducts, fall within the scope of international law only when posted byarrangement with the enemy.”).
80

1958 UK MANUAL ¶490 (“The expressions ‘pass’ and ‘permit’ have in recent years been employed in the place ofthe older terms ‘passport’ and ‘safe-conduct,’ with, as a rule, the same distinction, although ‘pass’ has sometimes
meant a general permission to do certain things, while ‘permit’ has been confined to permission to do a particularact.”).

851

interchangeably, but military passport generally has been used in a broader sense than safeconduct. 81
Ultimately, however, the purpose of the document will be more important than thenomenclature in deciding the nature of the document issued. 82
12.6.2 Military Passport. A military passport is a document issued by order of acommander of belligerent forces, authorizing a person or persons named therein residing or
sojourning within territory occupied by such forces to travel unmolested within such territory,
with or without permission to pass, or to pass and return by designated routes through the lines,
subject to such further conditions and limitations as the commander may prescribe. 83
Unlike a passport for peacetime travel, such as a passport issued by the U.S. State
Department, a military passport would be issued under a commander’s authority to regulatecommerce and travel within territory controlled by his or her forces. 84
12.6.3 Safe Conduct. Documents like passports, issued by the same authority and forsimilar purposes to persons residing or traveling outside of the occupied areas who desire toenter and remain within or pass through such areas, are called safe-conducts. 85 Similar
documents issued by the same authority to persons residing within or without the occupied areas
to permit them to carry specified goods to or from designated places within those areas, and toengage in trade otherwise forbidden by the general rule of non-intercourse, are also called safeconducts. 86 Safe-conducts for goods in which the grantee is given a continuing right for a81

SPAIGHT WAR RIGHTS ON LAND 230 (“A ‘safe-conduct’ or ‘passport’ is a written authority issued by acommander to one or more individuals, allowing him or them to pass through districts occupied by his forces. The
terms appear to be convertible, though some would make the ‘passport’ confer a more extended liberty of movement
than the ‘safe-conduct,’ which they would confine to an authority to come to a specified place for a specified
object.”).

82

2004 UK MANUAL ¶10.35.1 (“Arrangements are sometimes made between a military commander and an
individual national or group of nationals belonging to the adverse party or to a neutral state. Such arrangements may
be in the form of passports or safe conducts. Nomenclature is not significant in deciding the nature of the document
issued. In fact, occasionally, the term ‘pass’ or ‘permit’ has been used. The decisive factor is the purpose for which
the document has been issued, and not its terminology.”).
83

1956 FM 27-10 (Change No. 1 1976) ¶455 (“A military passport is a document issued by order of a commander
of belligerent forces, authorizing a person or persons named therein, residing or sojourning within territory occupied
by such forces, to travel unmolested within such territory, with or without permission to pass, or to pass and return,by designated routes, through the lines, subject to such further conditions and limitations as the commander may
prescribe.”).
84

Refer to § 5.19.1.1 (Belligerent Authority to Exercise Control in the Immediate Vicinity of Military Operations);§ 11.4.1 (Right of the Occupying Power to Govern the Enemy Territory Temporarily).
85

1956 FM 27-10 (Change No. 1 1976) ¶456 (“Documents like passports, issued by the same authority and forsimilar purposes, to persons residing or sojourning outside of the occupied areas, who desire to enter and remain
within or pass through such areas, are called safe-conducts.”).
86

1956 FM 27-10 (Change No. 1 1976) ¶456 (“Similar documents, issued by the same authority, to persons residing
within or without the occupied areas, to permit them to carry specified goods to or from designated places withinthose areas, and to engage in trade otherwise forbidden by the general rule of nonintercourse, are also called safeconducts.”).

852

prescribed period, or until further orders, to engage in the specified trade, are sometimes called
licenses to trade. 87
12.6.3.1 Safe-Conduct Pass for Ambassadors and Diplomatic Agents of Neutral
Governments Accredited to the Enemy. Ambassadors and other diplomatic agents of neutral
governments accredited to the opposing party to the conflict may receive a safe-conduct passthrough territory under the opposing force’s control, unless there are military or other security
reasons to the contrary, including the safety of the personnel in question, and unless they may
reach their destination conveniently by another route. 88 There is no international law
requirement, however, for issuing such a safe-conduct pass; such passes usually would be
granted by national-level authorities and not subordinate officers. 89
12.6.3.2 Licenses to Trade. Licenses to trade must, as a general rule, emanatefrom the supreme authority of the State. 90 In an international armed conflict, a State controlling
territory of the enemy may grant licenses to trade that relax its prohibitions on trading with theenemy. 91
Licenses to trade issued by military authorities may be either general or special. A
general license generally or partially relaxes the exercise of the rights of war in regard to trade in
relation to any community or individuals liable to be affected by their operation. 92 A special
license is one given to individuals for a particular voyage or journey for the importation orexportation of particular goods. 93
12.6.3.3 Safe-Conducts Contemplated by the 1949 Geneva Conventions. Certain
safe-conduct protection may be granted by special agreements contemplated in the 1949 Geneva
87

1956 FM 27-10 (Change No. 1 1976) ¶456 (“Safe-conducts for goods in which the grantee is given a continuingright for a prescribed period, or until further orders, to engage in the specified trade, are sometimes called licenses totrade.”); 1958 UK MANUAL ¶489 (“A safe-conduct may, however, also be given for goods, and it then comprises
permission for such good to be carried unmolested from or to a certain place, for instance from or into a besieged
town.”).
88

1956 FM 27-10 (Change No. 1 1976) ¶456 (“Ambassadors and other diplomatic agents of neutral powers,
accredited to the enemy, may receive safe-conducts through the territories occupied by the belligerents, unless there
are military reasons to the contrary and unless they may reach the place of their destination conveniently by anotherroute.”); LIEBER CODE art. 87 (“Ambassadors, and all other diplomatic agents of neutral powers, accredited to theenemy, may receive safe-conducts through the territories occupied by the belligerents, unless there are military
reasons to the contrary, and unless they may reach the place of their destination conveniently by another route.”).
89

1956 FM 27-10 (Change No. 1 1976) ¶456 (“There is, however, no legal requirement that such safe-conducts be
issued. Safe-conducts of this nature are usually given by the supreme authority of the State and not by subordinate
officers.”); LIEBER CODE art. 87 (“It implies no international affront if the safe-conduct is declined. Such passes areusually given by the supreme authority of the State, and not by subordinate officers.”).
90

1914 RULES OF LAND WARFARE ¶281 note 1 (“Licenses to trade must, as a general rule, emanate from thesupreme authority of the State.”).
91

Refer to § 12.1.1 (Traditional Rule of Non-Intercourse During War).

92

1914 RULES OF LAND WARFARE ¶281 (“A general license relaxes the exercise of the rights of war, generally or
partially, in relation to any community or individuals liable to be affected by their operation.”).
93

1914 RULES OF LAND WARFARE ¶281 (“A special license is one given to individuals for a particular voyage orjourney for the importation or exportation of particular goods.”).

853

Conventions. Such agreements include:•

agreements for the removal and passage of certain personnel, such as vulnerable civilians,from besieged areas; 94•

agreements for the passage of consignments; 95•

agreements for the removal or transport of the wounded and sick; 96•

agreements for the passage of medical aircraft for the transport of the military or civilian
wounded and sick; 97•

agreements for the safe passage of chartered medical transport ships; 98 and•agreements for the special transport of relief shipments for POWs or civilian internees. 99

12.6.4 Safeguard. A safeguard may refer to a detachment of forces posted for theprotection of, or a written instrument affording protection by a belligerent to, enemy or neutral
persons or property.
A safeguard falls within the law of war, however, only when granted and posted byarrangement with the enemy or a neutral. For example, guards or written orders posted by abelligerent for the protection of its own personnel or property would not be governed by the lawof war. 100
The effect of a safeguard is to pledge the honor of the nation that the person or property
will be respected by its armed forces. 101 It does not commit the government to its protection or
defense against attacks by enemy armed forces or other hostile elements.
Safeguards have been used to protect cultural property or other civilian property or
94
Refer to § 5.19.2 (Removal and Passage of Certain Personnel – Vulnerable Civilians, Diplomatic and Consular
Personnel, the Wounded and Sick, and Medical Personnel).
95

Refer to § 5.19.3 (Passage of Relief Consignments).

96

Refer to § 7.4.3.1 (Armistices and Local Arrangements to Permit the Removal, Exchange, or Transport of the
Wounded).
97

Refer to § 7.14 (Military Medical Aircraft); § 7.19 (Civilian Medical Aircraft).

98

Refer to § 7.13 (Chartered Medical Transport Ships).

99

Refer to § 9.20.5 (Special Means of Transport of Shipments to POWs); § 10.23.5 (Special Means of Transport of
Shipments to Internees).
100

MANUAL FOR COURTS-MARTIAL IV-39 (¶26.c.(1)) (2012) (“A safeguard is not a device adopted by a belligerent
to protect its own property or nationals or to ensure order within its own forces, even if those forces are in a theaterof combat operations, and the posting of guards or of off-limits signs does not establish a safeguard unless acommander takes those actions to protect enemy or neutral persons or property.”).
101

1956 FM 27-10 (Change No. 1 1976) ¶457 (“The effect of a safeguard is to pledge the honor of the nation thatthe person or property shall be respected by the national armed forces.”).

854

personnel meriting special protection. 102
12.6.4.1 Personnel Serving as a Safeguard. A safeguard is a detachment, guard,
or detail posted by a commander for the protection of persons, places, or property of the enemy
or of a neutral. 103
Combatants serving as safeguards occupy a protected status. 104 They may not be
attacked, and it is customary to send them back, together with their equipment and arms, to theirown armed forces when the locality is occupied by the enemy and as soon as military exigencies
permit. 105
12.6.4.2 Written Safeguard. The term safeguard also refers to a written order leftby a commander with an enemy subject, or posted upon enemy property, for the protection ofthat person or property. 106 It is usually directed to the succeeding commander and requests a
grant of protection. 107
12.6.4.3 Uniform Code of Military Justice Offense of Forcing a Safeguard. The
violation of a safeguard is a serious violation of the law of war. 108 The Uniform Code of
Military Justice makes forcing a safeguard punishable. 109 “Forcing a safeguard” means toperform an act or acts in violation of the protection of the safeguard. 110
12.6.5 Revocation of Passports, Safe-Conducts, and Similar Documents. In general,
passports, as well as safe-conducts, may be revoked for good reasons of military expediency by102

For example, SPAIGHT, WAR RIGHTS ON LAND 231 (“The object of a safeguard is generally to protect museums,
historic monuments or the like; occasionally to show respect for a distinguished enemy, as in the case of thesafeguard which McClellan placed over Mrs. R. E. Lee’s residence, White House, Virginia, in 1862. When allies
invaded France in 1814, the Emperor Alexander of Russia honoured himself and Poland by his graceful act inassigning a guard of honour of Polish soldiers to protect the house of Kosciusko -- then living, almost as a peasant,near Troyes -- from pillage and contribution.”).
103

1956 FM 27-10 (Change No. 1 1976) ¶457 (“A safeguard is a detachment, guard, or detail posted by acommander for the protection of persons, places, or property of the enemy, or of a neutral.”).
104

1956 FM 27-10 (Change No. 1 1976) ¶457 (“Soldiers on duty as safeguards occupy a protected status.”).

105

1956 FM 27-10 (Change No. 1 1976) ¶457 (“They may not be attacked, and it is customary to send them back,
together with their equipment and arms, to their own army when the locality is occupied by the enemy and as soon
as military exigencies permit.”).
106

1956 FM 27-10 (Change No. 1 1976) ¶457 (“The term also includes a written order left by a commander with anenemy subject or posted upon enemy property for the protection of the individual or property concerned.”).
107

1956 FM 27-10 (Change No. 1 1976) ¶457 (“It is usually directed to the succeeding commander and requests the
grant of protection.”).
108

1956 FM 27-10 (Change No. 1 1976) ¶457 (“The violation of a safeguard is a grave violation of the law of war
and, if committed by a person subject to the Uniform Code of Military Justice, is punishable under Article 102
thereof with death or such other punishment as a court-martial may direct.”).
109

See 10 U.S.C. § 902 (“Any person subject to this chapter who forces a safeguard shall suffer death or such otherpunishment as a court-martial may direct.”).
110

MANUAL FOR COURTS-MARTIAL IV-39 (¶26.c.(2)) (2012) (“‘Forcing a safeguard’ means to perform an act or acts
in violation of the protection of the safeguard.”).

855

the person who issued them or that person’s superior officer. Revocation must never be used asa means of detaining the holder, who is always allowed to withdraw in safety. 111
In addition, if the holder commits any wrongful act, such as using the opportunity given
by a passport or safe-conduct to obtain military information or if the holder exceeds its terms, theprivilege may be withdrawn. 112
12.7 CARTELS
In its narrower sense, a cartel is an agreement entered into by opposing belligerents forthe exchange of POWs. 113 In its broader sense, it is any convention concluded between
belligerents for the purpose of arranging or regulating certain kinds of non-hostile intercoursethat would otherwise be prohibited by reason of the existence of the armed conflict (e.g., postal
communication or trade in certain goods or commodities). 114
Both parties to a cartel are honor bound to observe its provisions scrupulously. A cartel
is voidable by a party upon definite proof that it has been intentionally violated in an importantparticular by the other party. 115
12.8 CAPITULATIONS – NEGOTIATED INSTRUMENTS OF SURRENDER
12.8.1 Definition of Capitulation. A capitulation is an agreement (sometimes with certain
conditions) entered into between commanders of belligerent forces for the surrender of a body offorces, a fortress, or other defended locality, or of a district of the theater of operations. 116 For
111

1958 UK MANUAL ¶493 (“Passports, as well as safe-conducts, may be revoked for good reasons of military
expediency by the person who issued them or his superior officer. Until revoked, however, they are binding not
only upon the person who granted them, but also upon his successors. The reasons for revocation need not be given,
but revocation must never be used as a means of detaining the holder, who is always allowed to withdraw in safety.
Such passports and safe-conducts as have been granted only for a limited time cease to be valid with the expirationof the period designated.”).
112

1958 UK MANUAL ¶494 (“If the holder commits any wrongful act, such as using the opportunity given by apassport or safe-conduct to obtain military information or if he exceeds its terms, the privilege may be withdrawn.”).

113

Refer to § 9.35.1 (Exchange of POWs During Hostilities Through Cartel Agreements).

114

1956 FM 27-10 (Change No. 1 1976) ¶469 (“In its narrower sense, a cartel is an agreement entered into by
belligerents for the exchange of prisoners of war. In its broader sense, it is any convention concluded between
belligerents for the purpose of arranging or regulating certain kinds of nonhostile intercourse otherwise prohibitedby reason of the existence of the war.”).
115

1956 FM 27-10 (Change No. 1 1976) ¶469 (“Both parties to a cartel are in honor bound to observe its provisions
with the most scrupulous care, but it is voidable by either party upon definite proof that it has been intentionallyviolated in an important particular by the other party.”).
116

1956 FM 27-10 (Change No. 1 1976) ¶470 (“A capitulation is an agreement entered into between commanders ofbelligerent forces for the surrender of a body of troops, a fortress, or other defended locality, or of a district of thetheater of operations.”); 1958 UK MANUAL ¶462 (“Capitulations are agreements entered into between thecommanders of armed forces or belligerents concerning the terms of surrender of a body of troops, of a defended
town or place, or of a particular district of the theatre of war. Surrenders of territory are sometimes designated as
evacuations.”); SPAIGHT, WAR RIGHTS ON LAND 249 (“A capitulation is a military convention which puts an end,
with or without conditions, to the resistance of a body of troops shut up in a fortress or surrounded in the field.”).

856

example, a capitulation agreement could involve the surrender of a small unit, such as a squad,platoon, company, or battalion, or the surrender of larger forces, such as a division or corps. 117
The surrender of military forces also may be arranged between belligerents at national
levels without the involvement of military commanders, and possibly through third parties. A
capitulation agreement may be negotiated between opposing military forces in local
implementation of a surrender negotiated at national levels.
12.8.1.1 Capitulation Compared to Armistice. A capitulation surrenders thecapitulating unit, while an armistice suspends fighting between opposing forces.
12.8.1.2 Capitulation Compared to Unconditional Surrender. A capitulation is asurrender pursuant to an agreement. A surrender may be effected without resort to a capitulationagreement. 118 For example, individuals or units may surrender themselves unconditionally to the
opposite side without a specific capitulation agreement. 119
On the other hand, an unconditional surrender may be effected through a capitulation
instrument. 120 Such an instrument would lack any conditions on the surrender, but may specify
the way in which the surrender is to be implemented or may clarify for all concerned that thesurrender is to be conducted on an unconditional basis.
12.8.2 Authority of Commanders to Conclude Capitulation Agreements. Commanders
are generally presumed to have the authority to conclude capitulation agreements with respect toforces under their command and areas under their control. 121 For example, if a commander ofmilitary forces concludes that continued fighting has become impossible and is unable tocommunicate with his or her superiors, under the law of war he or she may assume that he or she

117

For example, Captain M. Scott Holcomb, View from the Legal Frontlines, 4 CHICAGO JOURNAL OF
INTERNATIONAL LAW 561, 568 (2003) (“As of this writing, at the end of April 2003, only a few capitulationagreements have been signed. All of them were entered into after combat began, instead of before. Most
noteworthy, Colonel Curtis Potts, Commander of the Fourth Brigade of the Third Infantry Division, entered into a
capitulation agreement with Iraqi General Mohamad Jarawi for the surrender of the Iraqi Army’s Anbar sector
command, which encompassed sixteen thousand soldiers.”).
118

1956 FM 27-10 (Change No. 1 1976) ¶470 (“A surrender may be effected without resort to a capitulation.”).

119

1956 FM 27-10 (Change No. 1 1976) ¶478 (“An unconditional surrender is one in which a body of troops gives
itself up to its enemy without condition. It need not be effected on the basis of an instrument signed by both parties.
Subject to the restrictions of the law of war, the surrendered troops are governed by the directions of the State towhich they surrender.”).
120

For example, Japan, Instrument of Surrender, Sept. 2, 1945, 59 STAT. 1733, 1734 (“We hereby proclaim theunconditional surrender to the Allied Powers of the Japanese Imperial General Headquarters and of all Japanese
armed forces and all armed forces under Japanese control wherever situated.”); German High Command, Act ofMilitary Surrender, May 7, 1945, 59 STAT. 1857, 1858 (“1. We the undersigned, acting by authority of the German
High Command, hereby surrender unconditionally to the Supreme Commander, Allied Expeditionary Force andsimultaneously to the Soviet High Command all forces on land, sea, and in the air who are at this date under German
control.”).
121

1956 FM 27-10 (Change No. 1 1976) ¶472 (“Subject to the limitations hereinafter indicated, the commander oftroops is presumed to be duly authorized to enter into capitulations.”).

857

has authority to surrender his or her forces or position. 122
However, a commanding officer’s powers generally do not extend beyond the forces andterritory under his or her command. 123 Thus, a commander may not surrender forces that are notunder his or her command. Similarly, unless so authorized by his or her government, acommander lacks the authority to bind his or her government to a permanent cession of the placeor places under his or her command, to surrender sovereignty over territory, or to agree to otherterms of a political nature or such as will take effect after the termination of hostilities. 124
However, capitulation agreements that have been concluded by political authorities may include
such terms. 125
A State is not bound by the terms of a capitulation agreement that it has not authorized its
commanders to conclude and may repudiate such terms. 126 For example, a State would not bebound to honor political conditions accepted by a capitulating commander or by a commander
accepting capitulation, if those commanders lack such authority. 127
12.8.2.1 Surrenders Contrary to Domestic Law or Superior Orders. The fact thata commander surrenders in violation of orders or the law of his or her own State does not impair

122

1956 FM 27-10 (Change No. 1 1976) ¶472 (“In the case of a commander of a military force of the United States,
if continued battle has become impossible and he cannot communicate with his superiors, these facts will constituteproper authority to surrender.”).
123

1956 FM 27-10 (Change No. 1 1976) ¶472 (“A commanding officer’s powers do not extend beyond the forces
and territory under his command.”); 1958 UK MANUAL ¶466 (“The competence of a commander to accept
conditions of capitulation is limited to the troops immediately under his command and does not necessarily extend todetached forces.”).
124

1956 FM 27-10 (Change No. 1 1976) ¶472 (“Unless so authorized by his government, he does not possess power
to bind his government to a permanent cession of the place or places under his command, or to any surrender ofsovereignty over territory, or to any cessation of hostilities in a district beyond his command, or to agree to terms ofa political nature or such as will take effect after the termination of hostilities.”); Trial of Hans Albin Rauter,
Judgment, XIV U.N. LAW REPORTS 89, 125 (Netherlands Special Court in ’S-Gravenhage (The Hague), May 4,1948) (“According to international law a capitulation treaty is a pact between commanders of belligerent forces forthe surrender of certain troops or certain parts of the country, towns or fortresses, and as such must be scrupulously
fulfilled; the commander who concludes such a pact cannot, however, be considered empowered to bind his
government to a permanent cession of territory, to a cessation of hostilities in territories which do not come under
his command or, in general, to provisions of a political nature; such provisions are binding in a capitulation treaty
only if they are ratified by the governments of both belligerents.”).
125

1956 FM 27-10 (Change No. 1 1976) ¶473 (“The surrender of a place or force may also be arranged by thepolitical authorities of the belligerents without the intervention of the military authorities. In this case thecapitulation may contain other than military stipulations.”).
126

1958 UK MANUAL ¶467 (“Similarly, the competence of a commander to grant conditions of capitulation islimited to those the fulfilment of which depends entirely upon the forces under his command. If he agrees, without
the instruction of his government, to conditions the granting of which is not implied in his powers, or the fulfilmentof which depends upon forces other than his own, and upon superior officers, the conditions may be repudiated.”).

127
WINTHROP, MILITARY LAW & PRECEDENTS 787 (“A capitulation is of course subject to be disapproved andannulled by the Government of either commander. Thus the Sherman-Johnston capitulation of April, 1865, wasrepudiated by the Government at Washington because of its assuming to deal with political issues.”).

858

the validity of the surrender. 128 Commanders who surrender in violation of orders or the law of
their own State may be punished by their State.
Under the Code of Conduct for U.S. armed forces, a commander must never surrender
the members of his or her command while they still have the means to resist. 129 Under the
Uniform Code of Military Justice, shameful surrenders are punishable. In addition, compellingor attempting to compel a commander to surrender or striking colors or flag to an enemy without
proper authority is punishable. 130
12.8.3 Rules of Military Honor. Capitulations agreed upon between belligerents musttake into account the rules of military honor. 131
Conditions involving unnecessary disgrace or ignominy should not be insisted upon. 132
Capitulations may include the right of the capitulating forces to surrender with colors displayedor other indications of professional respect for the capitulating forces. 133 For example, it may beappropriate to allow surrendering officers to keep their side arms. 134
Even if the capitulation does not explicitly have such provisions, the capitulationagreement should be executed with honor and respect for the adversary. Treating the adversary
honorably diminishes psychological stigma from capitulation and thereby provides an incentive
for the adversary to capitulate rather than fight on without any chance of success.
12.8.4 Form of Capitulation Agreement or Instrument. There is no specified form forcapitulation instruments. They may be concluded either orally or in writing, but in order to avoid
disputes, they should be reduced to writing. The agreement should contain in precise terms
every condition to be observed on either side, excepting such conditions as are clearly imposedby the law of war. Details of time and procedure should be prescribed in exact and unequivocal
language. Even in case of an unconditional surrender, when the terms are dictated by the victor,
they should nevertheless be embodied in a written capitulation as soon as practicable. 135

128

1956 FM 27-10 (Change No. 1 1976) ¶472 (“The fact that any commander surrenders in violation of orders or thelaw of his own State does not impair the validity of the surrender.”).
129

Refer to § 9.39.1.2 (Code of Conduct – Article II).

130

Refer to § 9.39.1.2 (Code of Conduct – Article II).

131

HAGUE IV REG. art. 35 (“Capitulations agreed upon between the contracting parties must take into account therules of military honour.”).
132

WINTHROP, MILITARY LAW & PRECEDENTS 786 (“Capitulation. This is an agreement for the surrender of anarmy, or of a fortified place, of which the terms are settled by the belligerent commanders. In the Project of theBrussels Conference it is prescribed that ‘these conditions should not be contrary to military honor.’ That is to say,conditions involving unnecessary disgrace or ignominy should not be insisted upon.”).
133

1958 UK MANUAL ¶475 (“The expression ‘with the honors of war,’ which is sometimes used in capitulations, isusually construed to include the right to march out with colors displayed, bayonets fixed, etc., but the details of sucharrangements should be precisely stated in the articles [of capitulation].”).

134

Refer to § 12.9.2.2 (Disarmament of Surrendered Forces).

135

1956 FM 27-10 (Change No. 1 1976) ¶474 (“There is no specified form for capitulations. They may beconcluded either orally or in writing, but in order to avoid disputes, they should be reduced to writing. The

859

12.8.5 General Effect of Capitulation. The general effect of concluding a capitulationagreement is that of an unconditional surrender. In other words, absent specific terms in thecapitulation agreement to the contrary, the capitulation agreement should be understood to create
the effect of an unconditional surrender by the capitulating party. 136
The capitulating party must generally cease operations and maintain the military statusquo at the time in which the capitulation becomes effective. 137 For example, the capitulating
forces must not engage in offensive operations against opposing forces. 138 Similarly, although
forces may destroy their own weapons and intelligence information to prevent them from falling
into the hands of the enemy before they capitulate, after the capitulation is effective, thecapitulating forces must abstain from all destruction and damage to their own facilities andequipment, unless expressly permitted by the capitulation agreement. 139 The capturing side isfree to confiscate as war booty or, at its discretion, destroy the weapons, ammunition, andmilitary equipment of the capitulating side. 140
12.9 CAPITULATIONS – SUBJECTS USUALLY ADDRESSEDIn general, a capitulation agreement is understood to have the effect of an unconditionalsurrender under the law of war. However, specific topics may be addressed in the capitulationagreement that attach conditions to the surrender or specify the way in which the surrender is tobe effected.
12.9.1 Scope of Surrendered Forces and Territory and Time of Surrender. The
capitulation agreement may specify the force or territory that is surrendered and the exact time
when the surrender is to take effect. If a place or area is surrendered, provisions relative to thewithdrawal of the defenders from it and the entering into possession of it by the victorious forces
may also be specified in the agreement.
A commander’s competence to capitulate is limited to forces under his or her
agreement should contain in precise terms every condition to be observed on either side, excepting such conditions
as are clearly imposed by the laws of war. Details of time and procedure should be prescribed in the most exact andunequivocal language. Even in case of an unconditional surrender, when the terms are dictated by the victor, theyshould nevertheless be embodied in a written capitulation as soon as practicable.”).
136

Refer to § 5.9.3 (Persons Who Have Surrendered).

137

SPAIGHT, WAR RIGHTS ON LAND 253-54 (“The same principles which apply to the matériel of a fortress which
has capitulated are applicable also in the case of the personnel. Once the capitulation is signed, the position isstereotyped and fixed; the status quo of the moment of signature must be honourably maintained. The victorious
belligerent is justified in expecting that not only the matériel but the personnel of the capitulating force shall behanded over to him in accordance with the terms of the convention.”).
138

Refer to § 5.9.3.2 (Clear and Unconditional).

139

SPAIGHT, WAR RIGHTS ON LAND 251-52 (“A commander who has brought a fortress to the point of capitulating,may make the non-destruction of property during the negotiations a condition for granting better terms, and it may
suit the besieged’s interests to meet him in the matter. In the absence of such a special arrangement, thecommandant has a perfect right to dispose as he chooses of his matériel up to the moment of the signing of the act of
capitulation.”).
140

Refer to § 5.17.3 (Enemy Movable Property on the Battlefield (War Booty)).

860

command. 141 To avoid misunderstandings, capitulation should state the forces to be surrendered
and to what extent detached forces and personnel are included in the surrender of the main
body. 142
12.9.2 Disposition of Surrendered Forces. The capitulation instrument may specify the
movements and administration of the surrendered forces after the surrender.
In general, surrendering military forces and others entitled to POW status who fall into
the power of the enemy during international armed conflict become POWs under the GPW.
Similarly, the disposition of surrendered medical personnel and the wounded and sick belonging
to the surrendered party would be addressed by the GWS and GWS-Sea. Insofar as matters are
addressed by those treaties, there is little need for similar provisions in a capitulation instrument.
However, special circumstances, such as inability of the victor to guard, evacuate, andmaintain large numbers of POWs or to occupy the area in which enemy military forces arepresent, may justify the victorious commander in allowing the defeated force to remain in its
present positions, to withdraw, or to disperse after having been disarmed and having given theirparoles, provided that the giving of paroles is not forbidden by the laws of their own country andthat they are willing to give their paroles. 143
12.9.2.1 Orders Given by the Victor. It is normally stipulated that the orders ofthe victorious commander will be scrupulously carried out by the surrendered forces and thatthose who fail to comply with such orders or with the terms of the surrender itself may bepunished. 144
12.9.2.2 Disarmament of Surrendered Forces. Normally provisions are included
to govern the disposition of enemy arms, equipment, and other property in the hands of the force

141

Refer to § 12.8.2 (Authority of Commanders to Conclude Capitulation Agreements).

142

1958 UK MANUAL ¶466 (“To avoid misunderstandings, capitulations should invariably state to what extent
detached forces and outlying defences are included in the surrender of the main body.”).
143

1956 FM 27-10 (Change No. 1 1976) ¶475b (“However, special circumstances, such as inability of the victor to
guard, evacuate, and maintain large numbers of prisoners of war or to occupy the area in which enemy militaryforces are present, may justify the victorious commander in allowing the defeated force to remain in its present
positions, to withdraw, or to disperse after having been disarmed and having given their paroles, provided that thegiving of paroles is not forbidden by the laws of their own country and that they are willing to give their paroles (seepar. 185).”).
144

1956 FM 27-10 (Change No. 1 1976) ¶475j (“Orders given by the victor. It is normally stipulated that the ordersof the victorious commander will be scrupulously carried out by the surrendered forces and that those who fail tocomply with such orders or with the terms of the surrender itself will be severely punished.”). For example,
Instrument of Surrender of all German armed forces in Holland, in North West Germany, including all islands, andin Denmark, May 4, 1945, ¶¶3-4, reprinted in The Scuttled U-Boats Case, Trial of Oberleutnant Gerhard Grumpelt,
I U.N. LAW REPORTS 55, 57 (British Military Court Held at Hamburg, Germany, Feb. 12-13, 1946) (“3. The German
Command to carry out at once, and without argument or comment, all further orders that will be issued by the AlliedPowers on any subject. 4. Disobedience of orders, or failure to comply with them, will be regarded as a breach ofthese surrender terms and will be dealt with by the Allied Powers in accordance with the accepted laws and usagesof war.”).

861

that has surrendered. Officers have sometimes been allowed to retain their side arms. 145 In
addition, POWs are allowed to keep certain articles under the GPW. 146
12.9.2.3 Prohibitions on Acts of Destruction by the Surrendered Forces.
Although a capitulation, like an unconditional surrender, generally has the effect of prohibiting
acts of destruction by surrendered forces, the capitulation may also specifically prohibit
destruction by the surrendered forces of their materiel or installations, or communications,transportation facilities, and other public utilities in the area concerned.
12.9.3 Disposition of Detainees Held by the Surrendered Forces. The disposition of
POWs, civilian internees, and other persons held in the custody of the surrendered forces may be
addressed in a capitulation. 147
12.9.4 Minefields and Other Defensive Measures. The provision of facilities and of
information on such matters as minefields and other defensive measures may be addressed in acapitulation. 148
12.9.5 Civil Administration of the Area Concerned. The civil administration of the area
concerned, if a place or area is surrendered, may also be addressed in a capitulation.
12.10 CAPITULATIONS – VIOLATIONS AND DENUNCIATION
Once capitulation agreements have been made, they must be scrupulously observed by allparties.

149

12.10.1 Denunciation of Capitulation Agreements Based on Directed Violations. If
violations of a capitulation agreement have been directed by the commander who capitulated orby higher authority, the other belligerent may denounce the capitulation and resume hostilities. 150
145

For example, WINTHROP, MILITARY LAW & PRECEDENTS 787 (“In the capitulation between Gens. Grant and Lee,of April, 1865, in providing for the surrender of military property, it is added—‘This will not embrace the side armsof the officers, nor their private horses nor baggage.’”).

146

Refer to § 9.7 (POW Effects and Articles of Personal Use).

147
For example, Japan, Instrument of Surrender, Sept. 2, 1945, 59 STAT. 1733, 1734 (“We hereby command theJapanese Imperial Government and the Japanese Imperial General Headquarters at once to liberate all allied
prisoners of war and civilian internees now under Japanese control and to provide for their protection, care,maintenance and immediate transportation to places as directed.”).
148

For example, Instrument of Surrender of Italy, Sept. 29, 1943, 61 STAT. 2742, 2743-44 (“10. The Italian Supreme
Command will make available all information about naval, military and air devices, installations, and defences,
about all transport and inter-communication systems established by Italy or her allies on Italian territory or in theapproaches thereto, about minefields or other obstacles to movement by land, sea or air and such other particulars as
the United Nations may require in connection with the use of Italian bases, or with the operations, security, or
welfare of the United Nations Land, Sea or Air Forces. Italian forces and equipment will be made available as
required by the United Nations for the removal of the above mentioned obstacles.”).
149

HAGUE IV REG. art. 35 (“Capitulations agreed upon between the contracting parties must take into account therules of military honour. Once settled, they must be scrupulously observed by both parties.”).
150

1956 FM 27-10 (Change No. 1 1976) ¶477 (“If the violation is directed by the commander who capitulated or byhigher authority, the other belligerent may denounce the capitulation and resume hostilities.”).

862

Like action may also be taken if the capitulation was obtained through a breach of faith. 151
A capitulation may not, however, be denounced because one of the parties has been
induced to agree to it by a means consistent with the law of war, such as a ruse, or by that party’s
own incapacity, such as through mistake of fact. 152
12.10.2 Violation of Capitulation Agreements by Individuals. Deliberate violations of
the terms of a capitulation by individuals are punishable as a war crime. 153 For example, amember of the capitulated force may be punished by his or her State or the enemy State forcarrying out attacks on enemy military equipment or personnel in violation of the terms of thecapitulation agreement. Similarly, destroying one’s own military equipment in violation of theterms of the capitulation agreement would also be punishable. 154
Unwitting violations of a capitulation agreement, however, are not punishable. For
example, individuals who return from a patrol and find their unit to have surrendered and,lacking knowledge of capitulation, continue to fight, would not be committing a war crime.
12.10.2.1 Violation of Capitulation Agreements and POW Status. Violation of acapitulation agreement, like other pre-capture law of war violations, is not a basis for denying aperson POW status, if that person otherwise qualifies for POW status under the GPW. 155
12.10.2.2 Violation of Capitulation Agreements by POWs. Members of the armed
forces who have capitulated may become POWs. Violations of the terms of a capitulationagreement by a POW may also be punishable as misconduct as a POW, either by the Detaining
Power or the State to which the POW belongs when that POW has been repatriated. 156
12.11 ARMISTICES AND OTHER CEASE-FIRE AGREEMENTS
12.11.1 Definition of Armistice. An armistice may also be described as the cessation of151

1956 FM 27-10 (Change No. 1 1976) ¶477 (“Like action may also be taken if the capitulation was obtained
through a breach of faith.”).
152

1958 UK MANUAL ¶484 (“A capitulation may be denounced if a party to it formally refuses to execute a clause
which has been agreed upon, and it may be cancelled if it was obtained by a breach of faith. It may not, however, beannulled because one of the parties has been induced to agree to it by ruse, or from motives for which there is no
justification, or by his own incapacity or feebleness.”).

153

1956 FM 27-10 (Change No. 1 1976) ¶477 (“Violation of the terms of a capitulation by individuals is punishable
as a war crime.”); Johnson v. Eisentrager, 339 U.S. 763, 787 (1950) (“Breach of the terms of an act of surrender isno novelty among war crimes.”).
154

For example, The Scuttled U-Boats Case, Trial of Oberleutnant Gerhard Grumpelt, I U.N. LAW REPORTS 55-70(British Military Court, Hamburg, Germany, Feb. 12-13, 1946) (First Lieutenant Grumpelt was convicted “of having
scuttled two U-boats which had been surrendered by the German Command to the Allies” in violation of theInstrument of Surrender of 4th May, 1945.).
155

Refer to § 9.26.4 (Retention of Benefits of the GPW Even if Prosecuted for Pre-Capture Acts).

156

Refer to § 9.26.1 (POWs Subject to the Laws, Regulations, and Orders in Force in the Armed Forces of the
Detaining Power); § 9.22.2 (POWs’ Status With Respect to Their Armed Forces).

863

active hostilities for a period agreed upon by the belligerents. 157 An armistice suspends military
operations by mutual agreement between the belligerent parties. 158
12.11.1.1 Armistice as an Agreement. An armistice is an agreed suspension of
hostilities. For example, a unilateral suspension of operations by one party would not be an
armistice.
12.11.1.2 Armistice as a Suspension of Hostilities and Not a Peace Treaty. An
armistice is not a partial or a temporary peace; it is only the suspension of military operations to
the extent agreed upon by the parties to the conflict. 159 War as a legal state of hostilities between
parties may continue, despite the conclusion of an armistice agreement. 160
In some cases, however, armistice agreements may be intended to be a prelude to peace
treaties. 161 In some cases, armistice agreements may persist for a long time. 162
12.11.1.3 Armistice – Notes on Terminology. An armistice also has been referred
to as a truce, local truce, ceasefire, cessation of hostilities, and suspension of arms. 163
157

1956 FM 27-10 (Change No. 1 1976) ¶479 (“An armistice (or truce, as it is sometimes called) is the cessation ofactive hostilities for a period agreed upon by the belligerents.”); LIEBER CODE art. 135 (“An armistice is the
cessation of active hostilities for a period agreed between belligerents.”).
158

HAGUE IV REG. art. 36 (“An armistice suspends military operations by mutual agreement between the belligerent
parties.”).
159

1956 FM 27-10 (Change No. 1 1976) ¶479 (“It is not a partial or temporary peace; it is only the suspension of
military operations to the extent agreed upon by the parties.”); LIEBER CODE art. 142 (“An armistice is not a partial
or a temporary peace; it is only the suspension of military operations to the extent agreed upon by the parties.”).
160

See, e.g., Kahn v. Anderson, 255 U.S. 1, 9 (1921) (“That complete peace, in the legal sense, had not come to passby the effect of the Armistice and the cessation of hostilities, is not disputable.”); Commercial Cable Co. v.
Burleson, 255 F. 99, 104-05 (S.D.N.Y. 1919) (Hand, J.) (“It is the treaty which terminates the war. An armisticeeffects nothing but a suspension of hostilities; the war still continues. It is true that a war may end by the cessationof hostilities, or by subjugation; but that is not the normal course, and neither had hostilities ceased, nor had theenemy been subjugated in the sense in which that term is used.”) (citations omitted) reversed on other grounds andvacated as moot, Commercial Cable Co. v. Burleson, 250 U.S. 360 (1919).
161

For example, Protocol of Agreement Between the United States and Spain, art. V, Aug. 12, 1898, 30 STAT. 1742,
1743 (“The United States and Spain will each appoint not more than five commissioners to treat of peace, and thecommissioners so appointed shall meet at Paris not later than October 1, 1898, and proceed to the negotiation andconclusion of a treaty of peace, which treaty shall be subject to ratification according to the respective constitutional
forms of the two countries.”).

162

For example, DEPARTMENT OF STATE, Treaties in Force: A List of Treaties and Other International Agreementsof the United States in Force on January 1, 2013, 411 (2013) (“Agreement concerning a military armistice in Korea,
with annex. Signed at Panmunjon July 27, 1953, by the Commander-in-Chief, United Nations Command; theSupreme Commander of the Korean People’s Army; and the Commander of the Chinese People’s Volunteers.
Entered into force July 27, 1953. 4 UST 346; TIAS 2782.”).
163

See, e.g., Richard Baxter, Armistices and Other Forms of Suspension of Hostilities, in HUMANIZING THE LAWS OF
WAR: SELECTED WRITINGS OF RICHARD BAXTER 310 (2013) (“In military usage, as reflected in particular inmanuals on the law of war, the older expression ‘armistice’ seems to be used quite generally to describe agreements
which in these days go under the name of ‘cease-fires’ or ‘truces’ or ‘suspensions of arms’. Very often when we
speak today of ‘cease-fire’, our predecessors, at least up to the Second World War, would have been inclined to use
the term ‘general armistice’ or ‘local armistice’. These are largely terminological differences and the employment864

Although in some cases distinctions may be drawn between these different terms,
armistice may also be used in a general sense to encompass these terms. 164
12.11.2 Types of Armistice and the Authority to Conclude Armistice Agreements.
Armistice agreements have been categorized based on the degree to which they suspend
hostilities.
An armistice may be general or local. The first suspends the military operations of thebelligerent States everywhere; the second only between certain fractions of the belligerent armies
and within a fixed radius. 165
The degree to which the parties wish to suspend hostilities affects what authorities areneeded to conclude the armistice agreement. An armistice agreement must be concluded byauthorities who are competent to agree to and to enforce its terms. Thus, armistices that include
more substantive and expansive terms must be approved by more senior authorities. For
example, a commander would not have the authority to conclude an armistice agreement thatbinds units or areas that are not under his or her command. Similarly, if an armistice contains
political terms, it must be made under authorization from the governments concerned or subject
to approval by them. 166
12.11.2.1 General Armistice. A general armistice suspends all military
operations between opposing forces.
General armistices are usually of a combined political and military character. They
usually precede the negotiations for peace, but may be concluded for other purposes. Due to itsof one expression or another does not normally of itself have operative legal consequences.”); 1958 UK MANUAL¶418 note 1 (“Six expressions have in the past been used in the British army to signify a cessation of hostilities
falling short of peace: truce, local truce, armistice, cessation of hostilities (as in the Convention made after Majubain 1881), cessation of arms (as in the negotiations preceding the surrender at Saratoga in 1777), and suspension ofarms. Yet they do not appear to have been employed with any exactitude. Moreover, other expressions, such as ‘acease fire for three hours,’ have not been unknown. Neither do other languages follow an exact terminology in thematter; the Germans speak of Waffenruhe and Waffenstillstand, without distinguishing precisely between them. The
French instructions distinguish between amistices and suspensions d’armes. It has been found advisable to follow
the practice of the more authoritative writers in distinguishing three different kinds of armistice as in the text
above.”).
164

See, e.g., WALTER G. HERMES, UNITED STATES ARMY IN THE KOREAN WAR: TRUCE TENT AND FIGHTING FRONT
15 footnote 1 (1992) (“For literary reasons, the terms ‘armistice,’ ‘truce,’ and ‘cease-fire’ have been usedinterchangeably throughout this volume. According to the Office of the Judge Advocate General, ‘truce’ signifies a
temporary interruption of fighting between local forces for some reason such as the collection of the dead andwounded. The word ‘armistice’ has a similar connotation, but is utilized to cover a temporary cessation of hostilities
on a broader scale. ‘Cease-fire’ applies when all acts of war are halted, bringing about an informal end to the war
and stabilizing the situation until formal negotiations can be completed.”).
165

HAGUE IV REG. art. 37 (“An armistice may be general or local. The first suspends the military operations of thebelligerent States everywhere; the second only between certain fractions of the belligerent armies and within a fixedradius.”); LIEBER CODE art. 137 (“An armistice may be general, and valid for all points and lines of the belligerents,
or special, that is, referring to certain troops or certain localities only.”).
166

1956 FM 27-10 (Change No. 1 1976) ¶483 (“If an armistice contains political terms, it must be made underauthorization from the governments concerned or subject to approval by them.”).

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political importance and the fact that it would be binding on all of a belligerent’s forces, ageneral armistice is normally negotiated by senior officials and is subject to approval by eachState. 167 For example, an armistice agreement may be negotiated by senior military commanders
and be subject to approval of each State. 168
12.11.2.2 Local or Partial Armistice. A local armistice (also called a partial
armistice) suspends operations between certain portions of the belligerent forces or within a
specified area. 169 In some cases, a local armistice has been distinguished from a suspension ofarms as implicating a large number of forces, a greater geographic area, and broader interests
than the local military requirements that are addressed in a suspension of arms. 170
12.11.2.3 Suspension of Arms. A suspension of arms is a form of local armisticeconcluded between commanders of military forces for some local military purpose, such as tobury the dead, to collect the wounded, to arrange for exchange of detainees, or to enable acommander to communicate with his or her government or superior officer. 171
Commanders are presumed to have the authority to conclude suspensions of arms forforces and areas within their control.
12.11.3 Form of Armistice Agreements. No special form for an armistice is prescribed.
If possible, armistice agreements should be reduced to writing to avoid misunderstandings andfor the purpose of reference should differences of opinion arise. Armistice agreements should be1671956 FM 27-10 (Change No. 1 1976) ¶483 (“General armistices are usually of a combined political and militarycharacter. They usually precede the negotiations for peace, but may be concluded for other purposes. Due to its
political importance, a general armistice is normally concluded by senior military officers or by diplomatic
representatives or other high civilian officials.”).
168

For example, Barbara Salazar Torreon, U.S. Periods of War and Dates of Current Conflicts, 5-6 (Congressional
Research Service, Dec. 28, 2012) (“Cease-fire terms [of the 1991 Persian Gulf War] negotiated at Safwan, Iraq,
March 1, 1991. Iraq officially accepted cease-fire terms, April 6, 1991. Cease-fire took effect April 11, 1991.”); id.
at footnote 8 (“This agreement is actually a transcript of the discussion held at Safwan Airfield, Iraq, between
Coalition participants, U.S. Gen. M. Norman Schwarzkopf and Lt. Gen. Khalid of the Joint Arab Forces, and Iraqi
participants, Lt. Gen. Sultan Kasim Ahmad, Chief of Staff of the Ministry of Defense, and Lt. Gen. Sala Abud
Mahmud, III Corps Commander.”).
169

1956 FM 27-10 (Change No. 1 1976) ¶484 (“A local armistice suspends operations between certain portions of
the belligerent forces or within a designated district of the theater of operations.”).
170

1958 UK MANUAL ¶425 (“It is, however, always a condition of the [partial] armistice that a considerable part of
the forces and of the region of war must be included, and that the cause for which it has been concluded is not only
some pressing local interests, as in the case of a suspension of arms, but one of a more general character, such as a
general exhaustion of the opposing belligerent forces in one part of the theatre of war; the outbreak of a virulent
infectious disease in the opposing camps; or any other cause the requirements of which cannot be satisfied by a meresuspension of arms, but do not demand a general armistice.”).
171

1956 FM 27-10 (Change No. 1 1976) ¶485 (“A suspension of arms is a form of armistice concluded between
commanders of military forces for some local military purpose, such as to bury the dead, to collect the wounded, toarrange for exchange of prisoners, or to enable a commander to communicate with his government or superior
officer.”).

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drafted with the greatest possible precision and clarity. 172
12.11.3.1 Languages. Unless agreement is possible for an armistice to be drawn
up in one language, an armistice should be drawn up in the language of each belligerent force,with each side retaining a copy in its language. Each belligerent should confirm the text in eachversion to ensure consistency in each language.
12.11.4 General Effects of an Armistice Agreement. The precise effect of an armisticeagreement may depend on the terms of the agreement. In the absence of specific provisions tothe contrary, the following effects should be understood to result from an armistice agreement.
12.11.4.1 Commencement, Notification, and Effective Time of the Armistice. An
armistice must be notified officially and in good time to the competent authorities and to theforces. Hostilities are suspended immediately after the notification, or on the date fixed. 173
An armistice for the parties commences at the moment it is signed, in the absence ofspecific provision to the contrary. 174 For example, an armistice agreement may specify that
hostilities are suspended for the parties upon receipt of notification by their commanders, rather
than upon signing. 175
Although an armistice is binding upon the belligerents from the time agreed forcommencement of the armistice (or the time of signature if the time of commencement is not
specified), officers of the armed forces are responsible for adhering to the armistice only fromthe time when they receive official information of its existence from their State. 176
12.11.4.2 Duration of an Armistice and the Resumption of Operations. If theduration of an armistice is not prescribed, belligerents may resume operations at any time,
provided always that the enemy is warned within the time agreed upon, in accordance with the
1721956 FM 27-10 (Change No. 1 1976) ¶486 (“No special form for an armistice is prescribed. It should, if
possible, be reduced to writing, in order to avoid misunderstandings and for the purpose of reference should
differences of opinion arise. It should be drafted with the greatest precision and with absolute clearness.”).
173

HAGUE IV REG. art. 38 (“An armistice must be notified officially and in good time to the competent authorities
and to the troops. Hostilities are suspended immediately after the notification, or on the date fixed.”).
174

1956 FM 27-10 (Change No. 1 1976) ¶487a (“An armistice commences, in the absence of express mention to thecontrary, at the moment it is signed.”).
175

For example, 1958 UK MANUAL ¶485 note 1 (“The capitulation of Manila was signed by the local commandersin-chief on 4 August 1898, but a general armistice had been agreed to by the Governments of Spain and the U.S.A.
on 12 August. Notice of this, however, did not reach the Philippines until 16 August, owing to a breakdown insignal communications. The Spaniards contended that the capitulation had become void, but the United States
Government denied, maintaining that the protocol concerning the armistice had stipulated suspension of hostilities,
not from the date of signature, but from the date of receipt of notification on the part of the respective
commanders.”).

176

1956 FM 27-10 (Change No. 1 1976) ¶491 (“An armistice is binding upon the belligerents from the time of theagreed commencement, but the officers of the armies are responsible only from the time when they receive official
information of its existence.”); LIEBER CODE art. 139 (“An armistice is binding upon the belligerents from the day of
the agreed commencement; but the officers of the armies are responsible from the day only when they receive
official information of its existence.”).

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terms of the armistice. 177
If the duration is for a definite period of time and there is no positive agreement to thecontrary, hostilities may be resumed without notice after the prescribed period of time.
12.11.4.3 General Prohibition on Offensive Military Operations. An armisticeagreement generally would be understood to prohibit offensive military operations, such as
conducting attacks or seizing territory. 178 Such acts would be examples of serious violations ofan armistice. 179
12.11.4.4 Armistice No Excuse for Relaxing Vigilance. The existence of anarmistice does not warrant relaxation of vigilance in the service of security and protection, or in
the preparedness of forces for action or exposing positions to the enemy. 180 For example,
belligerents may continue to gather intelligence during an armistice, and may rely on that
intelligence after the armistice has ended. 181
12.11.4.5 Preparations for Resuming Hostilities and Espionage Generally Not
Prohibited. During an armistice, in the absence of stipulations to the contrary, each belligerent isauthorized:•

to make movements of forces within its own lines;•

to receive reinforcements;

177

HAGUE IV REG. art. 36 (“If [an armistice’s] duration is not defined, the belligerent parties may resume operationsat any time, provided always that the enemy is warned within the time agreed upon, in accordance with the terms of
the armistice.”); LIEBER CODE art. 137 (“An armistice may be concluded for a definite time; or for an indefinite
time, during which either belligerent may resume hostilities on giving the notice agreed upon to the other.”).
178

See 1958 UK MANUAL ¶446 (“If an armistice is declared without conditions, nothing more than a total cessationof hostilities along the front of both positions is required.”) (emphasis added); LIEBER CODE art. 136 (“If an
armistice be declared, without conditions, it extends no further than to require a total cessation of hostilities along
the front of both belligerents.”) (emphasis added); 1914 RULES OF LAND WARFARE ¶261 (“What may be done during
an armistice.—An armistice need not in terms prohibit actual hostilities [in order to have the effect of prohibiting
actual hostilities]. Anything else [beyond conducting actual hostilities] may be done during an armistice that is notin express terms prohibited by the agreement.”). See also 1914 RULES OF LAND WARFARE ¶261 note 1 (“Actual
hostilities will provide, of course, that firing shall cease; that the belligerents must not gain ground to the front; and,during siege operations, ‘that the besieger must cease all extension, perfection, or advance of his attack works, asmuch so as from attacks by main force.’ (G.O. 100, 1863, art. 142.)”).
179

Refer to § 12.13.1.1 (Examples of Serious Violations of an Armistice).

180

1956 FM 27-10 (Change No. 1 1976) ¶481 (“The existence of an armistice does not warrant relaxation ofvigilance in the service of security and protection, or in the preparedness of troops for action, or exposing positions
to the enemy.”); 1958 UK MANUAL ¶460 (“The existence of an armistice is no reason for relaxing either vigilance or
the readiness of troops for action, or for exhibiting positions to the enemy which he could not detect during
combat.”).
181

For example, 1914 RULES OF LAND WARFARE ¶273 note 1 (“At the second battle of Fredericksburg, May 5,1863, the Federals discovered the weakness of Gen. Barksdale’s force during a suspension of hostilities to collectthe wounded after the second repulse. Memoirs, Alexander, p. 351. In the suspension of arms at Wynnes Hill,during the relief of Ladysmith, many of the burghers stood up and disclosed the position of their trenches, which
until then had not been located by the enemy. South African War, Vol. II, p. 602.”).

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•

to construct new fortifications, installations, and bases;•

to build and repair transportation and communications facilities;•

to seek information about the enemy;•

to bring up supplies and equipment; and•in general, to take advantage of the time and means at its disposal to prepare for resuming
hostilities. 182

Belligerents are not bound to discontinue espionage during an armistice, but the risks
incurred by spies are the same as at other times. 183 For example, spies may be punished by an
opposing belligerent if captured. 184
12.11.4.6 Armistice and Besieged Localities. Absent express provision in thearmistice agreement to the contrary, an armistice does not give authorities of a besieged place theright to receive food, water, or other supplies. 185
However, armistice negotiations may be an opportunity for belligerents to attempt toconclude local agreements for the removal of wounded, sick, infirm and aged persons, children,and maternity cases, or for the passage of ministers of all religions, medical personnel, andmedical equipment on their way to such areas. 186 In addition, armistice negotiations may be an
opportunity for commanders to seek to make arrangements to permit the free passage of certain
consignments. 187
12.12 ARMISTICES – SUBJECTS USUALLY ADDRESSEDThe following topics are often addressed in an armistice agreement: (1) the scope of thearmistice, including start time and duration; (2) what military activities are prohibited by thearmistice; (3) the relations between forces and the local populations during the armistice; (4)humanitarian activities to occur during the armistice; and (5) mechanisms for implementing the
182

1956 FM 27-10 (Change No. 1 1976) ¶487e (“In the absence of stipulations to the contrary, each belligerent isauthorized to make movements of troops within his own lines, to receive reinforcements, to construct new
fortifications, installations, and bases, to build and repair transportation and communications facilities, to seek
information about the enemy, to bring up supplies and equipment, and, in general, to take advantage of the time andmeans at his disposal to prepare for resuming hostilities.”).
183

1958 UK MANUAL ¶449 (“Belligerents are not bound to discontinue espionage during an armistice, but the risks
incurred by spies are the same as at other times.”).
184

Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).

185

1958 UK MANUAL ¶445 (“The conclusion of an armistice gives the authorities of a besieged place no right tointroduce provisions either for the garrison or for the civil population. Arrangements may, however, be made to
supply them so that at the end of the armistice the forces are in the same position as at the beginning.”).

186

Refer to § 5.19.2 (Removal and Passage of Certain Personnel – Vulnerable Civilians, Diplomatic and Consular
Personnel, the Wounded and Sick, and Medical Personnel).
187

Refer to § 5.19.3 (Passage of Relief Consignments).

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armistice.
Armistice provisions may address a range of political and military issues, provided thatbelligerents agree upon the terms and provided that the approving authorities are competent toaddress them. 188
12.12.1 Scope of an Armistice, Including Start Time and Duration. The armistice should
specify its scope—when and where it applies. The start time and duration of an armistice shouldbe specified as precisely as possible (e.g., date, time, and applicable time zone) to avoid
misunderstanding and an unintentional resumption of hostilities. 189
It may be appropriate for the armistice to specify that it starts at a later time to allow allforces to receive notification of the armistice before it becomes effective. 190
If the armistice is of an indefinite duration, the terms and manner of giving notice thatthat armistice is to be ended (including the length of time between the delivery of the notice andwhen combat operations may recommence) should be specified in the armistice agreement. 191
12.12.2 What Military Activities Are Prohibited by an Armistice. Although an armisticeis generally understood to prohibit offensive operations, the armistice agreement may specify theextent to which offensive operations are prohibited and other military activities that are also
prohibited during the armistice. 192
12.12.3 Relations Between Forces and the Local Population During an Armistice. It rests
with the Contracting Parties to settle, in the terms of the armistice, what intercourse may be heldin the theater of war with the inhabitants of one belligerent State and those of the other. 193
188

1956 FM 27-10 (Change No. 1 1976) ¶488 (“In addition to the provisions set forth in the preceding paragraph,
general armistices normally contain a number of political and military stipulations concerning such matters as theevacuation of territory; disposition of aircraft and shipping; cooperation in the punishment of war crimes; restitutionof captured or looted property; communications facilities and public utilities; civil administration; displaced persons;and the dissolution of organizations which may subvert public order.”).
189

1956 FM 27-10 (Change No. 1 1976) ¶487a (“The precise date, day, and hour for the suspension of hostilities
should also be stipulated. The effective times may be different in different geographical areas. An armisticecommences, in the absence of express mention to the contrary, at the moment it is signed.”).
190

For example, Treaty of Armistice with Germany, Nov. 11, 1918, 2 BEVANS 9 (“An armistice has been concluded
on the following conditions: … (A) CLAUSES RELATING TO THE WESTERN FRONT I. Cessation of hostilities by land
and in the air six hours after the signing of the armistice.”).
191

Refer to § 12.11.4.2 (Duration of an Armistice and the Resumption of Operations).

192

Refer to § 12.11.4.3 (General Prohibition on Offensive Military Operations).

193

HAGUE IV REG. art. 39 (“It rests with the Contracting Parties to settle, in the terms of the armistice, what
communications may be held in the theater of war with the inhabitants of one belligerent State and those of theother.”); LIEBER CODE art. 141 (“It is incumbent upon the contracting parties of an armistice to stipulate what
intercourse of persons or traffic between the inhabitants of the territories occupied by the hostile armies shall beallowed, if any.”). See also 1914 RULES OF LAND WARFARE ¶268 note 1 (“Of course, what is intended [by Article
29 of the Hague IV Regulations] to be regulated is the intercourse of the population of the occupied territory withthe population of the country still held by the enemy (in both cases nationals of the State), and also between eachbelligerent force and the inhabitants of the localities held by the other.”).

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If nothing is stipulated, intercourse (e.g., communication, movement, or commerce)
remains suspended, as during actual hostilities. 194 For example, absent explicit agreement, abelligerent retains the right to control all communications or movement of members of thecivilian population between its lines and enemy lines (e.g., denying movement to reduce the riskof enemy espionage activities, denying trade to avoid strengthening enemy armed forces). 195
The armistice agreement may also stipulate responsibilities of each party for civil
administration of areas under its respective control (e.g., public safety and public health needs,
maintenance of public utilities including communications facilities). The armistice agreement
may also specify the responsibilities of each belligerent for civil administration of neutral areasor areas where control is shared. 196
12.12.4 Humanitarian Activities to Occur During an Armistice. An armistice agreement
may arrange for a variety of humanitarian activities, such as:•

search for and collection of the sick and wounded from the battlefield, by, for example,
medical personnel or authorized civilians (such as non-governmental organizations); and•the provision or transport of medical care or food supplies intended for the civilian
population, including displaced persons.

12.12.4.1 Disposition of Detainees. Because armistice agreements are generally
only a temporary suspension of hostilities and not a complete cessation of active hostilities,
POWs generally need not be repatriated upon the conclusion of an armistice agreement. 197 If it
is desired that detainees, such as POWs, retained personnel, or civilian internees, should be
released or exchanged, specific provisions in this regard should be made in the armisticeagreement. 198
1941956 FM 27-10 (Change No. 1 1976) ¶487d (“If it is desired to make any change during the armistice in therelations between the opposing forces and the peaceable inhabitants, this must be accomplished by express
provision. Otherwise these relations remain unchanged, each belligerent continuing to exercise the same rights as
before, including the right to prevent or control all intercourse between the inhabitants within his lines and persons
within the enemy lines.”); LIEBER CODE art. 141 (“If nothing is stipulated the intercourse remains suspended, as
during actual hostilities.”).
195

Refer to § 5.19.1.1 (Belligerent Authority to Exercise Control in the Immediate Vicinity of Military Operations);§ 11.4.1 (Right of the Occupying Power to Govern the Enemy Territory Temporarily).
196

For example, Agreement Between the Governments of the United States of America, the Soviet Union, and theUnited Kingdom on the One Hand and the Government of Rumania on the Other Concerning an Armistice, Sept. 12,
1944, 59 STAT. 1712, 1715 (“17. Rumanian civil administration is restored in the whole area of Rumania separated
by not less than 50-100 kilometres (depending upon conditions of terrain) from the front line, Rumanianadministrative bodies undertaking to carry out, in the interests of the reestablishment of peace and security,
instructions and orders of the Allied (Soviet) High Command issued by them for the purpose of securing theexecution of these armistice terms.”).
197

Refer to § 9.37 (Release and Repatriation After Hostilities).

198

1956 FM 27-10 (Change No. 1 1976) ¶487f (“If it is desired that prisoners of war and civilian internees should be
released or exchanged, specific provisions in this regard should be made.”). For example, Agreement between theCommander-in-Chief, United Nations Command, on the one hand, and the Supreme Commander of the Korean
People’s Army and the Commander of the Chinese People’s Volunteers, on the other hand, Concerning a Military871

12.12.5 Mechanisms for Implementing an Armistice. An armistice agreement may
specify mechanisms to help implement it.
12.12.5.1 Neutral Zone Created by an Armistice. An armistice may create a“neutral zone,” situated in order to minimize risk of unintentional confrontation between
opposing forces. 199 It may be necessary for forces to withdraw in order to establish the zone. 200
It is usually agreed that these lines are not to be crossed or the neutral zone entered except byparlementaires or other parties by special agreement for specified purposes, such as to bury thedead and collect the wounded. 201
12.12.5.2 Consultative Mechanism. The armistice agreement may provide for theestablishment of a commission composed of representatives of the opposing forces to supervise
the implementation of the armistice agreement. 202 The agreement may specify that otherrepresentatives, such as representatives from neutral States or representatives from local
authorities, are included on the commission. 203
12.12.5.3 Signals. The belligerents may agree to use certain signals to help
implement the armistice. For example, signals may be agreed upon to indicate the passage ofparlementaires, the start or end of the armistice, or for other reasons.
12.12.5.4 Maps Showing Boundaries or the Location of Forces. An armisticeagreement may also include an exchange of maps or other imagery showing the lines ofArmistice in Korea art. 52, Jul. 27, 1953, 29 DEPARTMENT OF STATE BULLETIN 132, 137 (Aug. 3, 1953) (“Each side
insures [sic] that it will not employ in acts of war in the Korean conflict any prisoner of war released and repatriatedincident to the coming into effect of this Armistice Agreement.”).
199

For example, Protocol of Armistice between Japan and Russia, Sept. 1, 1905, reprinted in I TREATIES AND
AGREEMENTS WITH AND CONCERNING CHINA 1894-1919, 527 (1921) (“The undersigned Plenipotentiaries of Japanand Russia duly authorised to that effect by their Governments have agreed upon the following terms of armisticebetween the belligerents, pending the coming into force of the Treaty of Peace: -- 1. A certain distance (zone ofdemarcation) shall be fixed between the fronts of the armies of the two Powers in Manchuria as well as in the regionof the Tomamko (Tumen).”).
200

For example, Dayton Accords, Annex 1A, art. IV (OHR Doc. 14/12/1995) (“The Parties immediately after thisAnnex enters into force shall begin promptly and proceed steadily to withdraw all Forces behind a Zone of
Separation which shall be established on either side of the Agreed Cease-Fire Line that represents a clear anddistinct demarcation between any and all opposing Forces.”).
201

1956 FM 27-10 (Change No. 1 1976) ¶487c (“Provision may be included for a neutral zone between the twoarmies. It is usually agreed that these lines are not to be crossed or the neutral zone entered except byparlementaires or other parties by special agreement for specified purposes, such as to bury the dead and collect thewounded.”).
202

1956 FM 27-10 (Change No. 1 1976) ¶487g (“It is generally desirable to provide for the establishment of acommission, composed of representatives of the opposing forces, to supervise the implementation of the armisticeagreement.”).
203

For example, Egyptian-Israeli General Armistice Agreement, art. 10(1) Feb. 24, 1949, 42 UNTS 251, 264 (“Theexecution of the provisions of this Agreement shall be supervised by a Mixed Armistice Commission composed ofseven members, of whom each Party to this Agreement shall designate three, and whose Chairman shall be theUnited Nations Chief of Staff of the Truce Supervision Organization or a senior officer from the Observer personnelof that Organization designated by him following consultation with both Parties to this Agreement.”).

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opposing forces (or the location of forces) at the time of the start of the armistice. 204 Such maps
may facilitate understanding of applicable boundaries, such as the location of neutral zones, aswell as reduce the risk of unintended confrontation.
12.13 ARMISTICES – VIOLATIONS AND DENUNCIATION
An armistice, like other formal arrangements between belligerents, engages the honor of
all parties for the exact and complete fulfillment of every obligation thereby imposed. 205 Serious
violations of the armistice by one of the parties gives an opposing party the right of denouncing
the armistice, and deliberate violations of the armistice by individuals are punishable.
12.13.1 Serious Violations as a Basis for Denouncing an Armistice. Any serious
violation of the armistice by one of the parties gives an opposing belligerent the right ofdenouncing the armistice, and even, in cases of urgency, of recommencing hostilities
immediately. 206
12.13.1.1 Examples of Serious Violations of an Armistice. Serious violations ofan armistice include acts in contravention of the terms of the agreement or acts that are wholly
inconsistent with the status of the suspension of hostilities. 207 Such acts may include:•

conducting attacks against the enemy;•

a deliberate advance or construction of works beyond the line agreed upon;•

the seizure of any point outside the lines; and•the utilization of the occasion to withdraw forces from an unfavorable positioncommanded by the enemy. 208

204

For example, Egyptian-Israeli Agreement on Disengagement of Forces in Pursuance of the Geneva Peace
Conference, Annex to Kurt Waldheim, Letter Dated 18 January 1974 From the Secretary-General Addressed to
President of the Security Council, U.N. Doc. S/11198, 2 (Jan. 18, 1974) (“A. Egypt and Israel will scrupulously
observe the cease-fire on land, sea and air called for by the United Nations Security Council and will refrain fromthe time of the signing of this document from all military or para-military actions against each other. B. The
military forces of Egypt and Israel will be separated in accordance with the following principles: 1. All Egyptian
forces on the east side of the canal will be deployed west of the line designated as line A on the attached map. All
Israeli forces, including those west of the Suez Canal and the Bitter Lakes, will be deployed east of the line
designated as line B on the attached map.”).
205

1956 FM 27-10 (Change No. 1 1976) ¶493 (“An armistice, like other formal agreements between belligerents,
engages the honor of both parties for the exact and complete fulfillment of every obligation thereby imposed.”).
206

HAGUE IV REG. art. 40 (“Any serious violation of the armistice by one of the parties gives the other party theright of denouncing it, and even, in cases of urgency, of recommencing hostilities immediately.”).
207

Cf. WINTHROP, MILITARY LAW & PRECEDENTS 787 (“The offence of violation of an armistice may consist in an
act in contravention of the terms of the agreement, or in an act wholly inconsistent with the status of suspension.”).
208

1958 UK MANUAL ¶456 (“A deliberate advance or construction of works beyond the line agreed upon, theseizure of any point outside the lines, or the utilization of the occasion to withdraw troops from an unfavourable
position commanded by the enemy, or any violation of an express condition would, as a rule, constitute a grave
breach [of an armistice].”).

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12.13.1.2 Process of Denunciation – Warning Requirement. Absent urgent
necessity, a delay should occur between denunciation of the armistice and the resumption of
hostilities. 209 This delay allows the denunciation to act as warning and to ensure that the party
recommencing hostilities does not rely on the other party’s compliance with the armistice as away of facilitating its offensive military operations.
It would be dishonorable and perfidious for either party, without warning, to resume
hostilities during the period of an armistice, with or without a formal denunciation thereof,
except in case of urgency and upon convincing proof of intentional and serious violation of its
terms by the other party. 210
Nevertheless, under Article 40 of the Hague IV Regulations, upon definite proof of sucha violation of an armistice, if the delay incident to formal denunciation and warning seems likely
to give the violator a substantial advantage of any kind, the other party is free to resume
hostilities without warning and with or without a formal denunciation. 211 For example, the lawof war does not prohibit armed forces that reasonably believe an adversary is committing
armistice violations from taking necessary and proportionate action in self-defense immediately
in response.
12.13.1.3 Process of Denunciation – Approval of Co-Belligerents Not Required.
A belligerent faced with serious violations of an armistice is not required to obtain thepermission of its co-belligerents, even though those States may be parties to the armisticeagreement, before recommencing hostilities. 212
12.13.2 Violations of an Armistice by Individuals. A violation of the terms of anarmistice by private persons acting on their own initiative only entitles the injured party to
demand the punishment of the offenders or, if necessary, compensation for the losses
sustained. 213
209

1958 UK MANUAL ¶458 (Unless there be great urgency, there should always be a delay between denunciation of
the armistice and resumption of hostilities.”).
210

1956 FM 27-10 (Change No. 1 1976) ¶493 (“It would be an outrageous act of perfidy for either party, without
warning, to resume hostilities during the period of an armistice, with or without a formal denunciation thereof,
except in case of urgency and upon convincing proof of intentional and serious violation of its terms by the otherparty.”).
211

1956 FM 27-10 (Change No. 1 1976) ¶493 (“Nevertheless, under the article last above quoted, upon definite
proof of such a violation of the armistice, if the delay incident to formal denunciation and warning seems likely togive the violator a substantial advantage of any kind, the other party is free to resume hostilities without warning andwith or without a formal denunciation.”).
212

For example, Jay S. Bybee, Assistant Attorney General, Authority of the President Under Domestic andInternational Law to Use Military Force Against Iraq, 26 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 143, 174-75(Oct. 23, 2002) (“The missile strikes in 1993 and 1998 serve as clear examples of the suspension of a cease-fire anda resumption of hostilities due to serious violations by Iraq. … It is our understanding based on information suppliedby the Department of Defense that in neither case did the United States obtain the express agreement of all of theother members of the Persian Gulf War coalition before suspending the cease-fire and using force.”).
213

HAGUE IV REG. art. 41 (“A violation of the terms of the armistice by private persons acting on their own
initiative only entitles the injured party to demand the punishment of the offenders or, if necessary, compensation forthe losses sustained.”).

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12.13.2.1 “Private Persons” Defined for the Purposes Article 41 of the Hague IV
Regulations. A private person, in the sense of Article 41 of the Hague IV Regulations, refers toany person, including a member of the armed forces, who acts on his or her own
responsibility. 214
12.13.2.2 Effect of Violations of an Armistice by Individuals. Deliberate violationof the terms of an armistice by individuals is punishable as a war crime. Such violations by
individual members of the armed forces or subordinate officers do not justify denunciation of thearmistice unless they are proved to have been committed with the knowledge and actual or tacit
consent of their own government or commander. Consent may be inferred in the event of apersistent failure to punish such offenders. 215
12.13.2.3 Violation of Armistice Agreements and POW Status. Violations of anarmistice agreement, like other pre-capture law of war violations, are not a basis for denying aperson POW status, if that person otherwise qualifies for POW status under the GPW. 216
12.14 U.N. SECURITY COUNCIL CEASE-FIRESThe U.N. Security Council may call upon or demand that hostilities be ceased. 217 In
addition, the U.N. Security Council may call upon or demand that members of the United
Nations conclude cease-fire or armistice agreements. 218 The U.N. Security Council may alsoestablish a formal cease-fire. 219
Cease-fires established by the U.N. Security Council may be interpreted in accordance214

1956 FM 27-10 (Change No. 1 1976) ¶494b (“A private individual, in the sense of the foregoing article, refers toany person, including a member of the armed forces, who acts on his own responsibility.”).
215

1956 FM 27-10 (Change No. 1 1976) ¶494c (“Violation of the terms of an armistice by individuals is punishable
as a war crime. Such violations by individual soldiers or subordinate officers do not justify denunciation of thearmistice unless they are proved to have been committed with the knowledge and actual or tacit consent of their own
government or commander. Consent may be inferred in the event of a persistent failure to punish such offenders.”).
216

Refer to § 9.26.4 (Retention of Benefits of the GPW Even if Prosecuted for Pre-Capture Acts).

217

For example, U.N. SECURITY COUNCIL RESOLUTION 1199, U.N. Doc S/RES/1199, ¶1 (Sept. 23, 1998) (“Acting
under Chapter VII of the Charter of the United Nations, 1. Demands that all parties, groups and individuals
immediately cease hostilities and maintain a ceasefire in Kosovo, Federal Republic of Yugoslavia, which would
enhance the prospects for a meaningful dialogue between the authorities of the Federal Republic of Yugoslavia andthe Kosovo Albanian leadership and reduce the risks of a humanitarian catastrophe;”); U.N. SECURITY COUNCILRESOLUTION 338, U.N. Doc. S/RES/338 (Oct. 22, 1973) (“Calls upon all parties to the present fighting to cease allfiring and terminate all military activity immediately, no later than 12 hours after the moment of the adoption of thisdecision, in the positions they now occupy.”).
218

For example, U.N. SECURITY COUNCIL RESOLUTION 27, U.N. Doc S/RES/27 (Aug. 1, 1947) (“The Security
Council, Noting with concern the hostilities in progress between the armed forces of the Netherlands and theRepublic of Indonesia, Calls upon the parties: (a) To cease hostilities forthwith, and (b) To settle their dispute byarbitration or by other peaceful means and keep the Security Council informed about the progress of thesettlement.”).

219

For example, U.N. SECURITY COUNCIL RESOLUTION 687, U.N. Doc S/RES/687 ¶33 (Apr. 3, 1991) (“Declares
that, upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of theabove provisions, a formal cease-fire is effective between Iraq and Kuwait and the Member States cooperating with
Kuwait in accordance with resolution 678 (1990);”).

875

with the general principles of international law governing armistices. 220

220

For example, Jay S. Bybee, Assistant Attorney General, Authority of the President Under Domestic andInternational Law to Use Military Force Against Iraq, 26 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 143, 175(Oct. 23, 2002) (“Under general principles of armistice law, therefore, because the initial use of force in response to
the invasion of Kuwait—Operation Desert Storm—was authorized under UNSCR 678, subsequent uses of force
against Iraq in response to serious violations of the terms of the cease-fire established by UNSCR 687 would be
authorized as well, provided either that Iraq has been warned, or that such a warning may be avoided because it
would be likely to give Saddam Hussein a substantial advantage.”).

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XIII – Naval Warfare
Chapter Contents
13.1 Introduction
13.2 Legal Boundaries of the Oceans
13.3 Overview of Rules for Naval Engagements
13.4 Enemy Warships
13.5 Enemy Merchant Vessels
13.6 Enemy Vessels Exempt From Capture or Destruction
13.7 Submarine Warfare
13.8 Belligerent Control of the Immediate Area of Naval Operations
13.9 Maritime and Airspace Zones: Exclusion, War, Operational, Warning, andSafety13.10 Blockade
13.11 Naval Mines
13.12 Torpedoes
13.13 Deception by Naval Forces, Including the Use of Enemy or Neutral Flags
13.1 INTRODUCTION
This Chapter addresses the law of war rules that apply to naval operations, especiallythose aspects of naval warfare that differ from warfare on land or in the air. This Chapter also
briefly addresses the legal boundaries of the ocean, which may be relevant to the application of
the law of war.
Navy publications have provided discussion of other public international law relating tonaval operations, including discussion of the law of the sea applicable during peacetime. 1
Some topics that are related to neutrality law and that are relevant to the conduct of both
naval and air warfare, such as the conduct of visit and search and neutral commerce, areaddressed in Chapter XV, the Law of Neutrality. 2
13.1.1 The Law of the Sea During Armed Conflict. The law of the sea is a body of treaty
and customary international law. Its rules have been developed principally with peacetime
situations in mind. Nothing in the law of the sea impairs a State’s inherent right of individual orcollective self-defense, or rights during armed conflict. 3
1

See, e.g., 2007 NWP 1-14M; 1997 NWP 9; 1989 NWP 9.

2Refer to § 15.13 (Belligerent Right of Visit and Search of Merchant Vessels and Civil Aircraft); § 15.12 (Neutral
Commerce and Carriage of Contraband).
3

Responses of Rear Admiral John E. Crowley, Chief Counsel and Judge Advocate General, U.S. Coast Guard, toAdditional Questions for the Record Submitted by Senator Joseph R. Biden, Jr., SENATE EXECUTIVE REPORT 10810, United Nations Convention on the Law of the Sea, 108th Congress, Second Session, 170, 172 (Mar. 11, 2004)(“It should also be noted that nothing in the Convention restricts the inherent right of individual or collective selfdefense or rights during armed conflict, and the administration is recommending that the United States express such

877

For example, the law of the sea provides that the high seas are reserved for peacefulpurposes. 4 However, the use of the high seas for peaceful purposes is understood not to impose
restraints upon military operations that would otherwise be consistent with international law, orto impair a State’s inherent right of self-defense. 5 The use of outer space for peaceful purposesalso has been interpreted in this way. 6
As another example, certain rights under the law of the sea (e.g., certain rights ofnavigation of vessels, or rights of States with respect to exclusive economic zones) must be
exercised with due regard for the rights and duties of other States. 7 To the extent this obligation
applies during armed conflict, what regard would be due would depend on military necessity andother principles and rules of the law of war, which are specially adapted to the circumstances ofarmed conflict. 8
13.1.2 The United States and the LOS Convention. The U.N. Convention on the Law of
the Sea (LOS Convention) was opened for signature on December 10, 1982. 9
The United States is not a Party to the LOS Convention. The United States did not sign
the LOS Convention when it opened for signature because of several major problems in theConvention’s deep seabed mining provisions. 10 However, in 1983, the United States announced
that it was prepared to accept and act in accordance with the balance of interests reflected in the
LOS Convention relating to traditional uses of the oceans – such as navigation and overflight –and that the United States would exercise and assert its navigation and overflight rights andan understanding.”); William H. Taft, Legal Adviser, Department of State, Response to an Additional Question from
Senator Inhofe, United Nations Convention on the Law of the Sea: Hearing Before the Committee on Environment
and Public Works, U.S. Senate, 108th Congress, Second Session, 77 (Mar. 23, 2004) (“As stated in the resolution ofadvice and consent now before the Senate, nothing in the Convention impairs the inherent right of individual orcollective self-defense or rights during armed conflict.”).
4

Consider LOS CONVENTION art. 88 (“The high seas shall be reserved for peaceful purposes.”).

5

Commentary—The 1982 United Nations Convention on the Law of the Sea and the Agreement on Implementationof Part XI, 94 in MESSAGE FROM THE PRESIDENT TRANSMITTING LOS CONVENTION (“Article 88 reserves the highseas for peaceful purposes, while articles 141 and 155(2) reserves the Area [which is defined in the LOS Convention
art. 1(1) as “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction;”] for peacefulpurposes. … None of these provisions creates new rights or obligations, imposes restraints upon military operations,or impairs the inherent right of self-defense, enshrined in article 51 of the United Nations Charter. More generally,
military activities which are consistent with principles of international law are not prohibited by these, or any otherprovisions of the Convention.”).
6Refer to § 14.10.4 (General Use of Outer Space for Peaceful Purposes).

7

Refer to § 13.2.3.3 (Exclusive Economic Zones (EEZs)); § 13.2.3.4 (High Seas).

8

Refer to § 1.3.2 (The Law of War’s Relationship to Other Bodies of Law).

9

United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 UNTS 397.

10

Ronald Reagan, Statement on United States Oceans Policy, Mar. 10, 1983, 1983-I PUBLIC PAPERS OF THE
PRESIDENTS 378 (“Last July, I announced that the United States will not sign the United Nations Law of the Sea
Convention that was opened for signature on December 10. We have taken this step because several major
problems in the Convention's deep seabed mining provisions are contrary to the interests and principles ofindustrialized nations and would not help attain the aspirations of developing countries. However, the convention
also contains provisions with respect to traditional uses of the oceans which generally confirm existing maritime law
and practice and fairly balance the interests of all states.”).

878

freedoms on a worldwide basis in a manner that is consistent with the balance of interests
reflected in the LOS Convention. 11 For example, consistent with the LOS Convention, theUnited States has claimed a 12-nautical mile territorial sea. 12 Similarly, the United States has
established a contiguous zone extending 24 nautical miles from the baselines of the United States
determined in accordance with international law, but in no case within the territorial sea of
another nation. 13
The Agreement on the Implementation of Part XI of the LOS Convention was adopted on
August 17, 1994. 14 Because this agreement addressed the objections that the United States
previously expressed to Part XI of the LOS Convention, President Clinton recommended that the
Senate give its advice and consent to accession to the LOS Convention and to ratification of theAgreement on the Implementation of Part XI. 15 Subsequent administrations have also supported
U.S. accession to the LOS Convention and the ratification of the Agreement on the
Implementation of Part XI of the LOS Convention. 16
13.2 LEGAL BOUNDARIES OF THE OCEANS
The legal classifications of ocean areas may be relevant to the application of the law of
war and therefore affect military operations during armed conflict by, for example:

11

Ronald Reagan, Statement on United States Oceans Policy, Mar. 10, 1983, 1983-I PUBLIC PAPERS OF THE
PRESIDENTS 378, 379 (“First, the United States is prepared to accept and act in accordance with the balance ofinterests relating to traditional uses of the oceans - such as navigation and overflight. In this respect, the UnitedStates will recognize the rights of other States in the waters off their coasts, as reflected in the Convention, so longas the rights and freedoms of the United States and others under international law are recognized by such coastal
states. Second, the United States will exercise and assert its navigation and overflight rights and freedoms on aworldwide basis in a manner that is consistent with the balance of interests reflected in the Convention. The UnitedStates will not, however, acquiesce in unilateral acts of other States designed to restrict the rights and freedoms of
the international community in navigation and overflight and other related high seas uses.”).
12Refer to § 13.2.2.2 (Territorial Seas).

13

Refer to § 13.2.3.2 (Contiguous Zones).

14

Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of
10 December 1982, annex to U.N. General Assembly Resolution 48/263, U.N. Doc. A/RES/48/263 (Aug. 17, 1994).
15

William J. Clinton, Letter of Transmittal, Oct. 7, 1994, MESSAGE FROM THE PRESIDENT TRANSMITTING LOSCONVENTION 1 (“As described in the report by the Secretary of State, the Agreement meets the objections theUnited States and other industrialized nations previously expressed to Part XI. It promises to provide a stable andinternationally recognized framework for mining to proceed in response to future demand for minerals…. I therefore
recommend that the Senate give early and favorable consideration to the Convention and to the Agreement and giveits advice and consent to accession to the Convention and to ratification of the Agreement.”).
16

See, e.g., George W. Bush, Statement on the Advancement of United States Maritime Interests, May 15, 2007,
2007-I PUBLIC PAPERS OF THE PRESIDENTS 583 (“First, I urge the Senate to act favorably on U.S. accession to theUnited Nations Convention on the Law of the Sea during this session of Congress. Joining will serve the national
security interests of the United States, including the maritime mobility of our armed forces worldwide. It will secure
U.S. sovereign rights over extensive marine areas, including the valuable natural resources they contain. Accession
will promote U.S. interests in the environmental health of the oceans. And it will give the United States a seat at thetable when the rights that are vital to our interests are debated and interpreted.”); Barack Obama, National Security
Strategy 50 (May 2010) (“As one key effort in the sea domain, for example, we will pursue ratification of the United
Nations Convention on the Law of the Sea.”).

879

•

determining the legal boundaries of airspace above those waters; 17•

determining whether waters are neutral waters; 18•

determining the authority that a belligerent State has with respect to neutral vessels in an
area; 19 or•determining the authority that a neutral State has with respect to belligerent vessels in anarea. 20

Waters are often divided analytically between national waters (i.e., internal waters,
territorial seas, and archipelagic waters), which are subject to the sovereignty of a State, andinternational waters, which are not subject to the sovereignty of any State. 21 In addition, special
rules apply to international straits and archipelagic sea lanes. 22
13.2.1 Territory – Notes on Terminology. In some cases, the word “territory” is used todescribe the land, waters, and airspace subject to the sovereignty of a State. 23 In other cases, theword “territory” is used to describe only the land that is subject to the sovereignty of a State. 24
Thus, in describing waters that are not subject to the sovereignty of a State (e.g., theexclusive economic zone and continental shelf, and high seas), the word “territory” should not be
used. Coastal States may exercise limited “sovereign rights” over specific functional areas in the
exclusive economic zone and on the continental shelf, but these rights do not imply sovereignty
over these areas. 25

17

Refer to § 14.2 (Legal Boundaries of Airspace).

18

Refer to § 15.7.1 (Waters That Are Considered Neutral).

19

Refer to, e.g., § 13.11.3.5 (Restrictions on Where Naval Mines May Be Placed); § 13.10.2.5 (Limitations on the
Scope of the Blockade).
20

Refer to, e.g., § 15.8 (Passage of Belligerent Vessels and Aircraft Through International Straits and Archipelagic
Sea Lanes).
21

Refer to § 13.2.2 (National Waters); § 13.2.3 (International Waters).

22

Refer to § 15.8 (Passage of Belligerent Vessels and Aircraft Through International Straits and Archipelagic Sea
Lanes).
23

See, e.g., The Ann, 1 F. Cas. 926, 926-27 (C.C.D. Mass. 1812) (Story, J.) (“As the Ann arrived off Newburyport,
and within three miles of the shore, it is clear that she was within the acknowledged jurisdiction of the United States.
All the writers upon public law agree that every nation has exclusive jurisdiction to the distance of a cannon shot, or
marine league, over the waters adjacent to its shores, and this doctrine has been recognized by the supreme court of
the United States. Indeed such waters are considered as a part of the territory of the sovereign.”) (internal citations
omitted).
24

See, e.g., 1955 NWIP 10-2 ¶421 (“According to established international law, each State has exclusive legal
control (jurisdiction) in the air space above its territory, internal waters, and territorial sea.”).
25

See Commentary—The 1982 United Nations Convention on the Law of the Sea and the Agreement on
Implementation of Part XI, 24, MESSAGE FROM THE PRESIDENT TRANSMITTING LOS CONVENTION (“Article 56
enumerates the rights of the coastal State in the EEZ. Article 56(1)(a) establishes the sovereign rights of the coastal
State. Article 56(1)(b) sets forth the nature and scope of coastal State jurisdiction with respect to specific matters.

880

13.2.2 National Waters. National waters, which are subject to the sovereignty of a State,include internal waters, territorial seas, and archipelagic waters.
13.2.2.1 Internal Waters. A State has sovereignty over its internal waters. 26
Internal waters are generally understood to be those waters on the landward side of the baselineof the territorial sea. 27 The coastal baseline must be defined in accordance with specific rules ofinternational law as reflected in the LOS Convention. 28
13.2.2.2 Territorial Seas. The sovereignty of a State extends, beyond its land
territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial
sea. 29
The United States has claimed a 12-nautical mile territorial sea and recognizes territorial
sea claims of other nations up to a maximum breadth of 12 nautical miles. 30 Previously, theThe terms ‘sovereign rights’ and ‘jurisdiction’ are used to denote functional rights over these matters and do not
imply sovereignty. A claim of sovereignty in the EEZ would be contradicted by the language of articles 55 and 56
and precluded by article 58 and the provisions it incorporates by reference.”); id. at 55 (“Article 77 reiterates that thecoastal State has sovereign rights over the continental shelf for the purpose of exploring it and exploiting its natural
resources. The sovereign rights of the coastal State are balanced with provisions protecting the freedom ofnavigation and the other rights and freedoms of other States from infringement or unjustifiable interference by thecoastal State. Under article 78, rights of the coastal State over the continental shelf do not affect the legal status of
the superjacent waters or of the airspace above those waters.”).
26

Convention on the Territorial Sea and Contiguous Zone, art. 1, Apr. 29, 1958, 516 UNTS 205, 207-08 (“1. The
sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast,
described as the territorial sea. 2. This sovereignty is exercised subject to the provisions of these articles and toother rules of international law.”). Consider LOS CONVENTION art. 2 (“1. The sovereignty of a coastal State
extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic
waters, to an adjacent belt of sea, described as the territorial sea. 2. This sovereignty extends to the air space over
the territorial sea as well as to its bed and subsoil. 3. The sovereignty over the territorial sea is exercised subject tothis Convention and to other rules of international law.”).
27

Convention on the Territorial Sea and Contiguous Zone, art. 5, Apr. 29, 1958, 516 UNTS 205, 210 (“1.Waters on
the landward side of the baseline of the territorial sea form part of the internal waters of the State.”). Consider LOS
CONVENTION art. 8(1) (“Except as provided in Part IV, waters on the landward side of the baseline of the territorial
sea form part of the internal waters of the State.”).
28

Consider LOS CONVENTION art. 5 (“Except where otherwise provided in this Convention, the normal baseline formeasuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts
officially recognized by the coastal State.”).

29

Convention on the Territorial Sea and Contiguous Zone, art. 1, Apr. 29, 1958, 516 UNTS 205, 207-08 (“1. The
sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast,
described as the territorial sea. 2. This sovereignty is exercised subject to the provisions of these articles and toother rules of international law.”). Consider LOS CONVENTION art. 2 (“1. The sovereignty of a coastal State
extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic
waters, to an adjacent belt of sea, described as the territorial sea. 2. This sovereignty extends to the air space over
the territorial sea as well as to its bed and subsoil. 3. The sovereignty over the territorial sea is exercised subject tothis Convention and to other rules of international law.”).
30

See Ronald Reagan, Proclamation 5928: Territorial Sea of the United States of America, Dec. 27, 1988, 54
FEDERAL REGISTER 777 (Jan. 9, 1989) (“The territorial sea of the United States henceforth extends to 12 nautical
miles from the baselines of the United States determined in accordance with international law.”). Consider LOS
CONVENTION art. 3 (“Every State has the right to establish the breadth of its territorial sea up to a limit notexceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.”).

881

United States claimed a three-nautical mile territorial sea. 31 This claim was made in the context
of asserting the rights of the United States as a neutral State. 32
Coastal States often make specific maritime claims, but the United States does notrecognize those maritime claims that are not in conformity with customary international law, as
reflected in the LOS Convention. 33
13.2.2.3 Archipelagic Waters. An archipelagic State’s sovereignty extends tocertain waters enclosed by archipelagic baselines drawn in accordance with the LOS
Convention. 34
An “archipelago” means a group of islands, including parts of islands, interconnecting
water, and other natural features that are so closely interrelated that they form an intrinsic

31

Thomas Jefferson, Secretary of State, Letter to the British Minister Mr. Hammond (Nov. 8, 1793), I MOORE’SDIGEST 702-03 (“The President of the United States thinking that before it shall be finally decided to what distancefrom our sea shores the territorial protection of the United States shall be exercised, it will be proper to enter into
friendly conferences and explanations with the powers chiefly interested in the navigation of the seas on our coasts,
and relying that convenient occasions may be taken for these hereafter, finds it necessary in the mean time, to fix
provisionally on some distance for the present government of these questions. … Reserving, however, the ultimate
extent of this for future deliberation, the President gives instructions to the officers acting under his authority toconsider those heretofore given them as restrained for the present to the distance of one sea league or threegeographical miles from the sea-shores. This distance can admit of no opposition, as it is recognized by treaties
between some of the powers with whom we are connected in commerce and navigation, and is as little, or less, thanis claimed by any of them on their own coasts.”).
32

See, e.g., Douglas W. Kmiec, Acting Assistant Attorney General, Legal Issues Raised by the Proposed
Presidential Proclamation to Extend the Territorial Sea, Oct. 4, 1988, 12 OPINIONS OF THE OFFICE OF LEGALCOUNSEL 238, 244 (1988) (“The primary example, of course, is the first claim of a three-mile territorial sea made on
behalf of the United States by then-Secretary of State Jefferson in 1793. France, Great Britain, and Spain -- all ofwhich held territory in North America -- were engaged in maritime hostilities off our Atlantic coast, an extension ofwars ongoing in Europe. As part of an effort to undermine our policy of neutrality, France pressured us to state theextent of our territorial sea.”); United States v. California, 332 U.S. 19, 33 note 16 (1947) (“[S]hortly after webecame a nation our statesmen became interested in establishing national dominion over a definite marginal zone toprotect our neutrality. Largely as a result of their efforts, the idea of a definite three-mile belt in which an adjacentnation can, if it chooses, exercise broad, if not complete dominion, has apparently at last been generally accepted
throughout the world, although as late as 1876 there was still considerable doubt in England about its scope andeven its existence.”).
33

DEPARTMENT OF DEFENSE MANUAL 2005.1-M, Maritime Claims Reference, 2 (Jun. 23, 2005) (“The maritime
claims references in this Manual represent claims made by the coastal nations. Some of the claims are inconsistent
with international law. The United States does not recognize those maritime claims that are not in conformity withcustomary international law, as reflected in the 1982 United Nations Law of the Sea Convention. Examples include
excessive straight baseline claims, territorial sea claims in excess of 12 nautical miles (nm), and other claims thatunlawfully impede freedom of navigation and overflight.”).
34

Consider LOS CONVENTION art. 49(1) (“The sovereignty of an archipelagic State extends to the waters enclosedby the archipelagic baselines drawn in accordance with article 47, described as archipelagic waters, regardless of
their depth and distance from the coast.”); LOS CONVENTION art. 47 (“An archipelagic State may draw straightarchipelagic baselines joining the outermost posts of the outermost islands and drying reefs of the archipelagoprovided that within such baselines are included the main islands and an area in which the ratio of the area of thewater to the area of the land, including atolls, is between 1 to 1 and 9 to 1.”).

882

geographic, economic, and political entity or that historically have been regarded as such. 35 An“archipelagic State” means a State constituted wholly by one or more archipelagos and may
include other islands. 36 The Philippines and Indonesia are examples of archipelagic States. 37
13.2.2.4 Innocent Passage of Foreign Vessels Through Territorial Seas andArchipelagic Waters. During peacetime, all ships enjoy a right of innocent passage throughterritorial seas and archipelagic waters. 38 A Coastal State, however, has a right of protection,
which includes the right to suspend temporarily in specified areas of its territorial sea theinnocent passage of foreign ships if such suspension is essential for the protection of its
security. 39
During armed conflict, the right of innocent passage would not apply between belligerent
States. During armed conflict, belligerent States may restrict the right of neutral vessels to
conduct innocent passage through territorial seas and archipelagic waters belonging to abelligerent State, such as by establishing maritime zones. 40 During armed conflict, neutral States
may regulate, and even prohibit, belligerent warships and prizes from entering their territorial
seas and archipelagic waters. 41
13.2.3 International Waters. International waters, which are not subject to thesovereignty of any State, include contiguous zones, exclusive economic zones (EEZs), and thehigh seas. These waters, which are seaward of the territorial sea, are waters in which States havecertain freedoms, such as freedom of navigation and overflight.
13.2.3.1 High Seas Freedoms. States may exercise certain freedoms on the high35

Consider LOS CONVENTION art. 46(b) (“‘archipelago’ means a group of islands, including parts of islands,
interconnecting water and other natural features which are so closely interrelated that [they] form an intrinsic
geographic, economic, and political entity or which historically have been regarded as such.”).

36

Consider LOS CONVENTION art. 46(a) (“‘archipelagic State’ means a State constituted wholly by one or morearchipelagos and may include other islands;”).

37

Commentary—The 1982 United Nations Convention on the Law of the Sea and the Agreement on Implementationof Part XI, 22, MESSAGE FROM THE PRESIDENT TRANSMITTING LOS CONVENTION (“A State may enclosearchipelagic waters within archipelagic baselines that satisfy the criteria specified in Article 47. Depending on how
the archipelagic baseline system is established, the following 20 States could legitimately claim archipelagic waters:
Antigua & Barbuda, The Bahamas, Cape Verde, Comoros, Fiji, Grenada, Indonesia, Jamaica, Kiribati (in part),
Maldives, Marshall Islands (in part), Papua New Guinea, Philippines, Saint Vincent and the Grenadines, Sao Tome& Principe, Seychelles, Solomon Islands (five archipelagos), Tonga, Trinidad & Tobago, and Vanuatu.”).
38

Consider LOS CONVENTION art. 17 (“Subject to this Convention, ships of all States, whether coastal or landlocked, enjoy the right of innocent passage through the territorial sea.”); LOS CONVENTION art. 52 (“1. Subject toarticle 53 and without prejudice to article 50, ships of all States enjoy the right of innocent passage througharchipelagic waters, in accordance with Part II, section 3.”).
39

Consider LOS CONVENTION art. 25(3) (“The coastal State may, without discrimination in form or in fact among
foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if
such suspension is essential for the protection of its security, including weapons exercises. Such suspension shalltake effect only after having been duly published.”).

40

Refer to § 13.9.4 (Use of Zones to Prevent Movement – Exclusion Zones).

41

Refer to § 15.7.2 (A Neutral State’s Regulations Concerning Belligerent Warships and Prizes in Its Waters).

883

seas, such as freedom of navigation and freedom of overflight. 42 For example, the high seas
freedoms that warships may exercise include: task force maneuvering, flight operations, military
exercises, surveillance, intelligence gathering activities, and ordnance testing and firing. 43 Theserights and freedoms must be exercised with due regard for the interests of other States in their
exercise of the freedom of the high seas and other applicable rights. 44
Within a State’s EEZ, other States enjoy high seas freedoms of navigation and overflight,
and other rights, but must exercise those rights with due regard for the rights and duties of thecoastal State. 45
13.2.3.2 Contiguous Zones. A contiguous zone is an area extending seaward fromthe territorial sea to a maximum distance of 24 nautical miles from the baseline, in which thecoastal State may exercise the control necessary to prevent or punish infringement of its customs,
fiscal, immigration, and sanitary laws and regulations that occurs within its territory or territorial
sea. 46

42

Convention on the High Seas, art. 2, Apr. 29, 1958, 450 UNTS 82, 83-84 (“Freedom of the high seas is exercisedunder the conditions laid down by these articles and by the other rules of international law. It comprises, inter alia,
both for coastal and non coastal states: (1) Freedom of navigation; (2) Freedom of fishing; (3) Freedom to lay
submarine cables and pipelines; (4) Freedom to fly over the high seas.”). Consider LOS CONVENTION art. 87(1)(“The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under
the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both forcoastal and land-locked States: (a) freedom of navigation; (b) freedom of overflight; (c) freedom to lay submarine
cables and pipelines, subject to Part VI; (d) freedom to construct artificial islands and other installations permitted
under international law, subject to Part VI; (e) freedom of fishing, subject to the conditions laid down in section 2;(f) freedom of scientific research, subject to Parts VI and XIII.”).

43

2007 NWP 1-14M ¶2.6.3 (“All ships and aircraft, including warship and military aircraft, enjoy complete freedomof movement and operation on and over the high seas. For warships, this includes task force maneuvering, flight
operations, military exercises, surveillance, intelligence gathering activities, and ordnance testing and firing.”); 1997
NWP 9 ¶2.4.3 (same); 1989 NWP 9 ¶2.4.3 (same).
44

Convention on the High Seas, art. 2, Apr. 29, 1958, 450 UNTS 82, 84 (“These freedoms, and others which arerecognized by the general principles of international law, shall be exercised by all States with reasonable regard to
the interests of other States in their exercise of the freedom of the high seas.”). Consider LOS CONVENTION art.
87(2) (“These freedoms shall be exercised by all States with due regard for the interests of other States in their
exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect
to activities in the Area.”).
45

Consider LOS CONVENTION art. 58 (“1. In the exclusive economic zone, all States, whether coastal or landlocked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 ofnavigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful usesof the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine
cables and pipelines, and compatible with the other provisions of this Convention. 2. Articles 88 to 115 and otherpertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible withthis Part. 3. In exercising their rights and performing their duties under this Convention in the exclusive economic
zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws andregulations adopted by the coastal State in accordance with the provisions of this Convention and other rules ofinternational law in so far as they are not incompatible with this Part.”).

46

Convention on the Territorial Sea and Contiguous Zone, art. 24, Apr. 29, 1958, 516 UNTS 205, 220 (“1. In a zoneof the high seas contiguous to its territorial sea, the coastal State may exercise the control necessary to: (a) Prevent
infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea; (b)Punish infringement of the above regulations committed within its territory or territorial sea.”). Consider LOS

884

The United States has established a contiguous zone extending 24 nautical miles from thebaselines of the United States determined in accordance with international law, but in no casewithin the territorial sea of another nation. 47
13.2.3.3 Exclusive Economic Zones (EEZs). An Exclusive Economic Zone (EEZ)
is a zone of limited, generally resource-related rights and jurisdiction adjacent to the territorial
sea and may not extend beyond 200 nautical miles from the baseline. 48 The United States has
established an exclusive economic zone. 49
Although a coastal State does not have sovereignty over its EEZ, it has certain, generally
economic rights over these areas that must be exercised with due regard for the rights and duties
of other States, such as the high seas freedoms of other States. 50
13.2.3.4 High Seas. International law regarding the high seas applies to all partsof the sea that are not included in the EEZ, territorial sea, internal waters, or archipelagic waters
CONVENTION art. 33 (“1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal
State may exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary
laws and regulations within its territory or territorial sea; (b) punish infringement of the above laws and regulationscommitted within its territory or territorial sea. 2. The contiguous zone may not extend beyond 24 nautical miles
from the baselines from which the breadth of the territorial sea is measured.”).
47

William J. Clinton, Proclamation 7219: Contiguous Zone of the United States, Aug. 2, 1999, 64 FEDERALREGISTER 48701 (Aug. 8, 1999) (“The contiguous zone of the United States extends to 24 nautical miles from thebaselines of the United States determined in accordance with international law, but in no case within the territorial
sea of another nation.”).
48

Consider LOS CONVENTION art. 55 (“The exclusive economic zone is an area beyond and adjacent to theterritorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of
the coastal State and the rights and freedoms of other States are governed by the relevant provisions of thisConvention.”); LOS CONVENTION art. 57 (“The exclusive economic zone shall not extend beyond 200 nautical miles
from the baselines from which the breadth of the territorial sea is measured.”).
49

Ronald Reagan, Proclamation 5030: Exclusive Economic Zone of the United States of America, Mar. 10, 1983,
97 STAT. 1557 (“The Exclusive Economic Zone of the United States is a zone contiguous to the territorial sea,
including zones contiguous to the territorial sea of the United States, the Commonwealth of Puerto Rico, theCommonwealth of the Northern Mariana Islands (to the extent consistent with the Covenant and the United Nations
Trusteeship Agreement), and United States overseas territories and possessions. The Exclusive Economic Zone
extends to a distance 200 nautical miles from the baseline from which the breadth of the territorial sea is measured.
In cases where the maritime boundary with a neighboring State remains to be determined, the boundary of the
Exclusive Economic Zone shall be determined by the United States and other State concerned in accordance withequitable principles.”).
50

Consider LOS CONVENTION art. 56 (“1. In the exclusive economic zone, the coastal State has: (a) sovereign
rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or
non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to otheractivities for the economic exploitation and exploration of the zone, such as the production of energy from the water,
currents and winds; (b) jurisdiction as provided for in the relevant provisions of this Convention with regard to: (i)the establishment and use of artificial islands, installations and structures; (ii) marine scientific research; (iii) the
protection and preservation of the marine environment; (c) other rights and duties provided for in this Convention.
2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, thecoastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible withthe provisions of this Convention. 3. The rights set out in this article with respect to the seabed and subsoil shall be
exercised in accordance with Part VI.”).

885

of an archipelagic State. 51 No State may validly purport to subject any part of the high seas to its
sovereignty. 52 States may exercise certain freedoms on the high seas, such as freedom ofnavigation and freedom of overflight. 53
13.2.4 Chart Illustrating the Legal Boundaries of the Oceans and Airspace. This chart,
reproduced from the 2007 Commander’s Handbook on the Law of Naval Operations, seeks tosummarize the maximum permissible claims of States with respect to the boundaries of theoceans and airspace, as reflected in the LOS Convention. 54

51
Convention on the High Seas, art. 1, Apr. 29, 1958, 450 UNTS 82 (“The term ‘high seas’ means all parts of thesea that are not included in the territorial sea or in the internal waters of a State.”). Consider LOS CONVENTION art.
86 (“The provisions of this Part apply to all parts of the sea that are not included in the exclusive economic zone, inthe territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This
article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone inaccordance with article 58.”).
52

Convention on the High Seas, art. 2, Apr. 29, 1958, 450 UNTS 82 (“The high seas being open to all nations, noState may validly purport to subject any part of them to its sovereignty.”). Consider LOS CONVENTION art. 89 (“NoState may validly purport to subject any part of the high seas to its sovereignty.”).
53

Refer to § 13.2.3.1 (High Seas Freedoms).

54

2007 NWP 1-14M ¶1.3, Figure 1-1. See also Commentary—The 1982 United Nations Convention on the Law of
the Sea and the Agreement on Implementation of Part XI, 4, Figure 1, MESSAGE FROM THE PRESIDENT
TRANSMITTING LOS CONVENTION; JOINT PUBLICATION 3-32, Command and Control for Joint Maritime Operations,I-7, Figure I-1 (Aug. 7, 2013); JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, INTERNATIONAL AND
OPERATIONAL LAW DEPARTMENT, OPERATIONAL LAW HANDBOOK 160 (2013).

886

13.3 OVERVIEW OF RULES FOR NAVAL ENGAGEMENTS
In general, the rules for conducting attacks, such as bombardments, by naval forces are
the same as those for land or air forces. 55
13.3.1 Areas of Naval Warfare. As a general rule, naval forces may attack military
objectives wherever located outside neutral territory. 56 In certain cases (e.g., involving
belligerent use of neutral territory as a base of operations), hostilities may be conducted inneutral territory to redress violations of neutrality. 57
13.3.2 Classification of Vessels. The law of land warfare has divided enemy nationals
into different categories in order to facilitate the protection of the civilian population fromhostilities. 58 Similarly, the law of naval warfare has sought to classify enemy vessels to protect
those that are civilian or non-combatant in character.
In general, all vessels of an enemy State may be understood to fall into one of threeclasses: (1) warships and naval and military auxiliaries; (2) merchant vessels; and (3) exempt
vessels.
Warships and naval and military auxiliaries are generally liable to attack and capture. 59
Merchant vessels are generally liable to capture, but are liable to attack if they forfeit theirprotection. 60 Exempt vessels are not liable to capture or attack, unless they forfeit theirprotection. 61
13.3.3 Vessels Entitled to Conduct Attacks. During international armed conflict at sea,
warships are the only vessels that are entitled to conduct attacks. 62
Other vessels, such as auxiliary vessels and merchant vessels, are not entitled to conductattacks in offensive combat operations. 63 All vessels, however, may defend themselves
55

Refer to § 5.4 (Rules on Conducting Assaults, Bombardments, and Other Attacks).

56

Refer to § 15.3.1.2 (Inviolability of Neutral Territory - Prohibition on Hostile Acts or Other Violations of
Neutrality).
57

Refer to § 15.4.2 (Belligerent Use of Self-Help When Neutral States Are Unable or Unwilling to Prevent
Violations of Neutrality).
58

Refer to § 4.2 (The Armed Forces and the Civilian Population).

59

Refer to § 13.4 (Enemy Warships).

60

Refer to § 13.5 (Enemy Merchant Vessels).

61

Refer to § 13.6 (Enemy Vessels Exempt From Capture or Destruction).

62

See 1955 NWIP 10-2 ¶500e (“At sea, only warships and military aircraft may exercise belligerent rights.”).

63

2013 GERMAN MANUAL ¶1020 (“The following vessels and persons may not perform acts of naval warfare: state ships other than warships, even when carrying out support services for the naval forces, - merchant ships, fishing vessels and other civilian ships, - prize crews of captured ships, - state aircraft other than military aircraft
and - civilian aircraft. The crews of all ships and aircraft are, however, entitled to defend themselves against attacks
by enemy armed forces.”); 1992 GERMAN MANUAL ¶1016 (“The following vessels and persons may not perform887

(including resisting attacks by enemy forces). 64
13.3.3.1 Entitlement of Vessels to Conduct Attacks During Non-International
Armed Conflict. The United States is not a Party to any treaties that would prohibit the use ofwarships and auxiliaries in non-international armed conflict, nor has the United Statesrecognized such a prohibition in customary international law. Accordingly, State vessels otherthan warships may be used to conduct attacks against non-State armed groups during noninternational armed conflict. 65 For example, international law does not prohibit auxiliaries fromconducting attacks in a non-international armed conflict. Similarly, a State may use its law
enforcement authorities to address insurgent groups, and there would be no objection to using a
law enforcement vessel as part of operations against insurgents. 66
In some cases, the acts of hostility by insurgents on the high seas may be regarded as
piracy. 67
13.3.4 Shipwrecked Persons. Shipwrecked persons are hors de combat, and may not bemade the object of attack. 68 Shipwrecked persons include personnel involved in forced landings
at sea by or from aircraft, but do not include, for example, combatant personnel engaged inattacks. 69
acts of naval warfare: - state ships other than warships, even when carrying out support Services for the naval
forces, - state aircraft other than military aircraft, - merchant ships, - fishing boats and other civil ships, - civil
aircraft, and - prize crews of captured ships. The crews of all ships and aircraft are, however, entitled to defend
themselves against attacks by enemy forces.”).
64

See Institute of International Law, Manual of the Laws of Naval War, art. 12 (1913) (“Apart from the conditions
laid down in Articles 3 [regarding the conversion of public and private vessels into war-ships] and following, neither
public nor private vessels, nor their personnel, may commit acts of hostility against the enemy. Both may, however,use force to defend themselves against the attack of an enemy vessel.”). Refer to § 4.16.1 (Merchant or Civil Crews- Conduct of Hostilities).

65

Wolff Heintschel von Heinegg, Methods and Means of Naval Warfare in Non-International Armed Conflicts, 88
U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 211, 219 (2012) (“Under the law of international armed
conflict, only warships are entitled to exercise belligerent rights. This rule goes back to the prohibition ofprivateering under the 1856 Paris Declaration. Warships are those vessels that meet the criteria set forth in Articles
2-5 of the 1907 Hague Convention VII, Article 8(2) of the 1958 High Seas Convention and Article 29 of the LOS
Convention. Limitations on the exercise of belligerent rights are most important with regard to interference withneutral navigation and aviation; thus, neutral vessels and aircraft must accede to such interference only if themeasures are taken by warships. No such limitation applies to non-international armed conflicts vis-à-vis theparties. It follows from the object and purpose of the rule limiting the exercise of belligerent rights under the law ofnaval warfare—i.e., the transparent entitlement of the warship—that the non-State actor will obviously not haveships that meet the criteria for classification as a warship since one of the criteria is that it be a State vessel. The
government forces may make use of any vessel or aircraft, including, for example, those used for law enforcement
and customs enforcement, in the conduct of hostilities.”).
66

Refer to § 17.4.1 (Ability of a State to Use Its Domestic Law Against Non-State Armed Groups).

67

The Three Friends, 166 U.S. 1 (1897) (“Belligerency is recognized when a political struggle has attained a certain
magnitude and affects the interests of the recognizing power; and in the instance of maritime operations, recognition
may be compelled, or the vessels of the insurgents, if molesting third parties, may be pursued as pirates.”).
68

Refer to § 5.9.4 (Persons Rendered Unconscious or Otherwise Incapacitated by Wounds, Sickness, or Shipwreck).

69

Refer to § 7.3.1.2 (Shipwrecked).

888

As far as military exigencies permit, after each naval engagement, all possible measures
should be taken without delay to search for and collect the wounded, sick, and shipwrecked, andto recover the dead. 70
13.3.5 Surrender by Enemy Vessels. The general rules on the protection of persons horsde combat, including the rule prohibiting the attack of persons who have surrendered, also apply
to enemy vessels. 71 In particular, it is forbidden to make an enemy vessel the object of attack if
it has genuinely, clearly, and unconditionally surrendered, in circumstances in which it is feasible
to accept such surrender. 72
Once an enemy vessel has clearly indicated a readiness to surrender, the attack must be
discontinued. 73 Indicia of surrender by vessels may include:•

hauling down her flag;•

hoisting a white flag; 74•

surfacing (in the case of submarines); 75•

stopping engines and responding to the attacker’s signals; 76 or•

taking to lifeboats.

70

Refer to § 7.4.1 (GWS-Sea Obligation Regarding the Search, Collection, and Affirmative Protection of the
Wounded, Sick, Shipwrecked, and Dead).
71

Refer to § 5.9.3 (Persons Who Have Surrendered).

72

2007 NWP ¶8.6.1 (“It is forbidden, however, to target an enemy warship or military aircraft that in good faithunambiguously and effectively conveys a timely offer of surrender.”); 1955 NWIP ¶511c (“It is forbidden to refuse
quarter to any enemy who has surrendered in good faith. In particular, it is forbidden either to continue to attack
enemy warships and military aircraft which have clearly indicated a readiness to surrender or to fire upon thesurvivors of such vessels and aircraft who no longer have the means to defend themselves.”).
73

2007 NWP 1-14M ¶8.6.1 (“Once an enemy warship has clearly indicated a readiness to surrender, such as byhauling down her flag, by hoisting a white flag, by surfacing (in the case of submarines), by stopping engines andresponding to the attacker’s signals, or by taking to lifeboats, the attack must be discontinued.”).
74

Refer to § 12.4 (The White Flag of Truce to Initiate Negotiations).

75

W.T. MALLISON, JR., STUDIES IN THE LAW OF NAVAL WARFARE: SUBMARINES IN GENERAL AND LIMITED WARS
134 (1968) (“The duty to give quarter is, of course, the same in submarine warfare as it is in other naval warfare.
There are undoubtedly unusual problems which occur concerning manifestations of surrender in submarine warfare.
A submarine even when fully surfaced lies low in the water. There may be, consequently, particular difficulties inobserving a submarine's manifestation of surrender. Where a submarine is forced to the surface following depth
charging, it seems reasonable that the submarine's commander should be given an opportunity to surrender unless anunequivocal intention of fighting it out on the surface is manifested. The attempt of a surface ship to indicate
surrender to a submerged submarine also raises problems. For example, it is clear that the submerged submarine at
periscope depth has only limited visibility.”).

76

Trial of Helmuth von Ruchteschell, Outline of the Proceedings, IX U.N. LAW REPORTS 82 (British Military Court,
Hamburg, May 5-21, 1947) (“The captain of the Davisian stopped his engines, hoisted an answering pennant andacknowledged the signal. In spite of this, the raider’s firing continued for 15 minutes, wounding 8 or 10 of the crewof the Davisian, whilst they were trying to abandon ship [by taking to lifeboats].”).

889

13.4 ENEMY WARSHIPS
Enemy warships and naval and military auxiliaries are subject to attack, destruction, or
capture anywhere beyond neutral territory.
13.4.1 Character of Warships. A warship is generally understood to be a ship belonging
to the armed forces of a State bearing the external markings distinguishing the character andnationality of such ships, under the command of an officer duly commissioned by thegovernment of that State and whose name appears in the appropriate service list of officers, andmanned by a crew that is under regular armed forces discipline. 77
Warships are generally understood to possess certain privileges and immunities from thejurisdiction of other States. 78
13.4.2 Attacks Against Enemy Warships. In general, enemy warships are military
objectives. 79 However, warships that have surrendered or that are exempt vessels may not bemade the object of attack. 80
13.4.3 Captured Enemy Warships – No Prize Procedure. Prize procedures are not used
for captured enemy warships because their ownership vests immediately in the captor’s
government by the fact of capture. 81 As public movable property, warships are seizable as war
booty. 82 Similarly, prize procedures are not used for captured enemy military aircraft. 83
77

Convention on the High Seas, art. 8, Apr. 29, 1958, 450 UNTS 82, 86 (“1. Warships on the high seas havecomplete immunity from the jurisdiction of any State other than the flag State. 2. For the purposes of these articles,
the term ‘warship’ means a ship belonging to the naval forces of a State and bearing the external marks
distinguishing warships of its nationality, under the command of an officer duly commissioned by the government
and whose name appears in the Navy List, and manned by a crew who are under regular naval discipline.”).
Consider LOS CONVENTION art. 29 (“For the purposes of this Convention, ‘warship’ means a ship belonging to thearmed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of
an officer duly commissioned by the government of the State and whose name appears in the appropriate service listor its equivalent, and manned by a crew which is under regular armed forces discipline.”).
78

See, e.g., The Schooner Exch. v. McFaddon, 11 U.S. 116, 144 (1812) (“But in all respects different is the situationof a public armed ship. She constitutes a part of the military force of her nation; acts under the immediate and directcommand of the sovereign; is employed by him in national objects. He has many and powerful motives forpreventing those objects from being defeated by the interference of a foreign state. Such interference cannot takeplace without affecting his power and his dignity. The implied license therefore under which such vessel enters afriendly port, may reasonably be construed, and it seems to the Court, ought to be construed, as containing an
exemption from the jurisdiction of the sovereign, within whose territory she claims the rites of hospitality.”).
Consider LOS CONVENTION art. 95 (“Warships on the high seas have complete immunity from the jurisdiction of
any State other than the flag State.”).
79

Refer to § 5.6.4 (Objects Categorically Recognized as Military Objectives).

80

Refer to § 13.3.5 (Surrender by Enemy Vessels); § 13.6 (Enemy Vessels Exempt From Capture or Destruction).

81

1955 NWIP 10-2 ¶503a(2) (“Enemy warships and military aircraft may be captured outside neutral jurisdiction.
Prize procedure is not used for such captured vessels and aircraft because their ownership immediately vests in thecaptor’s government by the fact of capture.”).

82

Refer to § 5.17.3 (Enemy Movable Property on the Battlefield (War Booty)).

83

Refer to § 14.5.3 (Capture of Aircraft and Goods on Board Aircraft).

890

13.5 ENEMY MERCHANT VESSELS
13.5.1 Capture of Enemy Merchant Vessels. Enemy merchant vessels may be captured
wherever located beyond neutral territory. Prior exercise of visit and search is not required,provided positive determination of enemy status can be made by other means. 84
13.5.1.1 Captured Enemy Merchant Vessels – Notes on Terminology. A captured
neutral or enemy merchant vessel is called a prize.
13.5.1.2 Use of Prize Procedures to Complete Transfer of Title. Prize procedures
are usually used to complete the transfer of title of captured property, such as enemy merchantships. 85
13.5.1.3 Destruction of Captured Enemy Merchant Vessels. When military
circumstances preclude sending or taking in such vessel or aircraft for adjudication as an enemy
prize, it may be destroyed after all possible measures are taken to provide for the safety ofpassengers and crew. 86 Documents and papers relating to the prize should be safeguarded and, if
practicable, the personal effects of passengers should be saved. 87 Every case of destruction of acaptured enemy prize should be reported promptly to higher command. 88
The destruction of neutral prizes involves similar procedures, but a more serious
responsibility. 89
13.5.2 Attack of Enemy Merchant Vessels. Enemy merchant vessels may be made the84

2007 NWP 1-14M ¶8.6.2.1 (“Enemy merchant vessels and civil aircraft may be captured wherever located beyond
neutral territory. Prior exercise of visit and search is not required, provided positive determination of enemy status
can be made by other means.”).
85

See, e.g., LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 482 (§192) (“It has already been stated above thatthe capture of a private enemy vessel has to be confirmed by a Prize Court, and that it is only through its
adjudication that the vessel becomes finally appropriated.”); Oakes v. United States, 174 U.S. 778, 786-87 (1899)(“By the law of nations, recognized and administered in this country, when movable property in the hands of theenemy, used, or intended to be used, for hostile purposes, is captured by land forces, the title passes to the captors assoon as they have reduced the property to firm possession; but when such property is captured by naval forces, a
judicial decree of condemnation is usually necessary to complete the title of the captors.”).
86

2007 NWP 1-14M ¶8.6.2.1 (“When military circumstances preclude sending or taking in such vessel or aircraft
for adjudication as an enemy prize, it may be destroyed after all possible measures are taken to provide for the safetyof passengers and crew.”); 1955 NWIP 10-2 ¶503b(2) (“Enemy merchant vessels and aircraft which have been
captured may, in case of military necessity, be destroyed by the capturing officer when they cannot be sent or
escorted in for adjudication. Should the necessity for the destruction of an enemy prize arise, it is the duty of thecapturing officer to take all possible measures to provide for the safety of passengers and crew.”).
87

1955 NWIP 10-2 ¶503b(2) (“All documents and papers relating to an enemy prize should be saved. If practicable,
the personal effects of passengers should be saved.”).

88

1955 NWIP 10-2 ¶503b(2) (“Every case of destruction of an enemy prize should be reported promptly to higher
command.”).

89

Refer to § 15.15.3 (Destruction of Neutral Prizes).

891

object of attack, outside neutral territory, if they constitute a military objective. 90
In particular, enemy merchant vessels may be attacked and destroyed by warships, eitherwith or without prior warning, in any of the following circumstances: 91•

persistently refusing to stop upon being duly summoned to do so;•

actively resisting visit and search or capture;•sailing under convoy of enemy warships or enemy military aircraft;•armed with systems or weapons beyond that required for self-defense against terrorist,
piracy, or like threats;•

if incorporated into, or assisting, the enemy’s military intelligence system;•

if acting in any capacity as a naval or military auxiliary to an enemy’s armed forces; or•if otherwise integrated into the enemy’s war-fighting/war-sustaining effort such that abelligerent warship’s compliance with the rules of the 1936 London Protocol would,
under the circumstances of the specific encounter, subject the warship to imminent
danger or would otherwise preclude mission accomplishment.

The 1936 London Protocol provides that “except in the case of persistent refusal to stop
on being duly summoned, or of active resistance to visit or search, a warship, whether surface
vessel or submarine, may not sink or render incapable of navigation a merchant vessel without
having first placed passengers, crew and ship’s papers in a place of safety.” 92 Merchant vessels
90

Refer to § 5.6 (Military Objectives).

91

2007 NWP 1-14M ¶8.6.2.2 (“Accordingly, enemy merchant vessels may be attacked and destroyed by surface
warships, either with or without prior warning, in any of the following circumstances: 1. Persistently refusing tostop upon being duly summoned to do so 2. Actively resisting visit and search or capture 3. Sailing under convoy ofenemy warships or enemy military aircraft 4. If armed with systems or weapons beyond that required for selfdefense against terrorist, piracy, or like threats 5. If incorporated into, or assisting in any way, the intelligencesystem of the enemy’s armed forces 6. If acting in any capacity as a naval or military auxiliary to an enemy’s armed
forces 7. If integrated into the enemy’s war-fighting/war-sustaining effort and compliance with the rules of the 1936
London Protocol would, under the circumstances of the specific encounter, subject the surface warship to imminent
danger or would otherwise preclude mission accomplishment.”); 1955 NWIP 10-2 ¶503b(3) (“Destruction of Enemy
Merchant Vessels Prior to Capture. Enemy merchant vessels may be attacked and destroyed, either with or without
prior warning, in any of the following circumstances: 1. Actively resisting visit and search or capture. 2. Refusing
to stop upon being duly summoned. 3. Sailing under convoy of enemy warships or enemy military aircraft. 4. If
armed, and there is reason to believe that such armament has been used, or is intended for use, offensively against an
enemy. 5. If incorporated into, or assisting in any way, the intelligence system of an enemy’s armed forces. 6. If
acting in any capacity as a naval or military auxiliary to an enemy’s armed forces.”).
92

Procès-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of London of April
22, 1930, Nov. 6, 1936, 173 LNTS 353, 357. See Treaty for the Limitation and Reduction of Naval Armament, art.
22, Apr. 22, 1930, 46 STAT. 2858, 2881-82 (“In particular, except in the case of persistent refusal to stop on being
duly summoned, or of active resistance to visit or search, a warship, whether surface vessel or submarine, may notsink or render incapable of navigation a merchant vessel without having first placed passengers, crew and ship’s
papers in a place of safety. For this purpose the ship’s boats are not regarded as a place of safety unless the safety of892

in the sense of this rule, however, do not include merchant vessels that constitute military
objectives. 93
13.5.2.1 Attack of Civilian Passenger Vessels. If a civilian passenger vessel
constitutes a military objective and thus is liable to attack, any attack must comply with otherapplicable rules related to attacks. 94
In particular, attacks against civilian passenger vessels engaged in passenger service mustcomply with the requirement that the expected loss of life or injury to civilians, and damage tocivilian objects incidental to the attack, must not be excessive in relation to the concrete anddirect military advantage expected to be gained. 95
13.5.3 Detention of Personnel From Enemy Merchant Vessels. Officers and crews of
captured enemy merchant ships may be detained. 96 If detained, such persons are POWs. 97
Other civilian enemy nationals on board such captured ships as private passengers are
subject to the discipline of the captor. 98 If detained, such persons must, at a minimum, beafforded certain fundamental guarantees of humane treatment. 99
Nationals of a neutral State on board captured enemy merchant vessels should not be
detained unless they have participated in acts of hostility or resistance against the captor, or are

the passengers and crew is assured, in the existing sea and weather conditions, by the proximity of land, or thepresence of another vessel which is in a position to take them on board.”).
93

Wolff Heintschel von Heinegg, The Law of Armed Conflict at Sea, in DIETER FLECK, THE HANDBOOK OF
HUMANITARIAN LAW IN ARMED CONFLICTS 428-29 (¶1025) (1999) (“The rules laid down in that document formed
part of the 1922 Washington Treaty and were reaffirmed by the 1930 London Conference. During that conference acommittee of legal experts presented a report in which the matter was clarified as follows: ‘The Committee wish toplace it on record that the expression ‘merchant vessel’, where it is employed in the declaration, is not to beunderstood as including a merchant vessel which is at the moment participating in hostilities in such a manner as tocause her to lose her right to the immunities of a merchant vessel.’ Whereas it remains unclear what is meant by‘participating in hostilities’ it is obvious that merchant vessels are not in all circumstances protected by the 1936
London Protocol. This was confirmed by the judgment of the Nuremberg Tribunal. Hence, enemy merchant vessels
that, by their conduct, qualify as legitimate military objectives are not protected by the 1936 London Protocol andmay—as an exceptional measure—be attacked and sunk.”).
94

Refer to § 5.4 (Rules on Conducting Assaults, Bombardments, and Other Attacks).

95

Refer to § 5.12 (Proportionality – Prohibition on Attacks Expected to Cause Excessive Incidental Harm).

962007 NWP 1-14M ¶8.6.2.1 (“Officers and crews of captured enemy merchant ships and civilian aircraft may bedetained.”); 1955 NWIP 10-2 ¶512 (“The officers and crews of captured enemy merchant vessels and aircraft may
be made prisoners of war.”).
97

Refer to § 4.16.2 (Merchant or Civil Crews – Detention).

98

2007 NWP 1-14M ¶8.6.2.1 (“Other enemy nationals on board such captured ships and aircraft as private
passengers are subject to the discipline of the captor.”); 1955 NWIP 10-2 ¶512 (“Other enemy nationals on board
captured enemy merchant vessels and aircraft as private passengers are subject to the discipline of a captor.”).
99

Refer to § 8.1.1 (Overview of Detention Rules in This Manual and the Scope of Chapter VIII).

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otherwise in the service of the enemy. 100
13.6 ENEMY VESSELS EXEMPT FROM CAPTURE OR DESTRUCTION
Certain classes of enemy vessels are exempt from capture or destruction, provided they
are innocently and solely employed in the activities that enjoy exempted status.
Exempt vessels may not be used for purposes outside their innocent role while taking
advantage of their harmless appearance. Warships may not be disguised as exempt vessels. 101
13.6.1 Duties of Exempt Vessels. These specially protected vessels must not take part inhostilities or assist the enemy’s military effort in any manner.
Such vessels and boats are subject to the regulations of a belligerent naval commander
operating in the area. 102 They must not hamper the movement of combatants, must submit toidentification and inspection procedures, and may be ordered out of harm’s way. Refusal toprovide immediate identification upon demand is ordinarily sufficient legal justification for
capture or destruction.
13.6.2 Classes of Exempt Vessels. Specifically exempt vessels include: (1) cartel
vessels; (2) hospital ships; (3) vessels charged with religious, non-military scientific, orphilanthropic missions; (4) vessels granted safe conduct; and (5) small fishing and tradevessels. 103
13.6.2.1 Cartel Vessels. Vessels and aircraft designated for, and engaged in, theexchange of POWs are privileged from capture. 104

100

2007 NWP 1-14M ¶8.6.2.1 (“Nationals of a neutral nation on board captured enemy merchant vessels andcivilian aircraft should not be detained unless they have participated in acts of hostility or resistance against thecaptor or are otherwise in the service of the enemy.”); 1955 NWIP 10-2 ¶512 (“The nationals of a neutral state on
board captured enemy merchant vessels and aircraft as private passengers should not be made prisoners of war.”).
Refer to § 15.6.2 (Forfeiture of Protections of Neutral Status by a Neutral Person).
101

Refer to § 13.13 (Deception by Naval Forces, Including the Use of Enemy or Neutral Flags).

102

Refer to § 13.8 (Belligerent Control of the Immediate Area of Naval Operations).

103

1955 NWIP 10-2 ¶503c (“The following enemy vessels and aircraft, when innocently employed, are exempt fromdestruction or capture: 1. Cartel vessels and aircraft, i.e., vessels and aircraft designated for and engaged in theexchange of prisoners. 2. Properly designated hospital ships, medical transports, and medical aircraft. 3. Vessels
charged with religious, scientific, or philanthropic missions. 4. Vessels and aircraft guaranteed safe conduct by priorarrangement between the belligerents. 5. Vessels and aircraft exempt by proclamation, operation plan, order, orother directive. 6. Small costal (not deep-sea) fishing vessels and small boats engaged in local coastal trade and nottaking part in hostilities. Such vessels and boats are subject to the regulations of a belligerent naval commander
operating in the area.”).
104

See, e.g., The Brig “Betsey”, 49 Ct. Cl. 125, 132 (Ct. Cl. 1913) (“What is a cartel in warfare of the nations? Anagreement between belligerents for the exchange of prisoners. What is a cartel ship except a vessel of belligerents
duly commissioned for the carriage by sea of exchanged prisoners from enemy country to their own country or forthe carriage of official communications to and from enemies?”); The Adula, 176 U.S. 361, 379-80 (1900) (“While
the mission of the Adula was not an unfriendly one to this Government, she was not a cartel ship, privileged from
capture as such, but one employed in a commercial enterprise for the personal profit of the charterer, and only894

13.6.2.2 Hospital Ships That Meet the Requirements of the GWS-Sea. Hospital
ships, including military hospital ships, commissioned civilian hospital ships, and authorized
neutral hospital ships, that meet the requirements of the GWS-Sea are exempt from capture. 105
Hospital ships do not forfeit their exempt status if they are armed for self-defense purposes or ifthey possess or use communications equipment with encryption.
Hospital ships may be armed with defensive weapon systems, including when necessary
certain crew-served weapons, as a prudent anti-terrorism/force protection (AT/FP) measure to
defend against small boat attacks. 106 The 1949 Geneva Conventions do not directly address
weapons systems for hospital ships, but they do expressly provide for the arming of crew
members with small arms for the maintenance of order and for the self-defense of the crew or the
sick and wounded. 107 The arming of the ship with crew-served weapons for self-defense of theship is not prohibited and is consistent with the ship’s humanitarian purpose and the crew’s duty
to safeguard the wounded and sick.
The GWS-Sea provides that hospital ships may not use or possess “secret codes” asmeans of communication; however, state practice has evolved to accept that modern
communications systems (e.g., satellite communications and video teleconference systems) andnavigational technology (e.g., global positioning systems) require encryption. 108 Such systems
must not be used for military purposes or in any way that is harmful to an adversary. 109
13.6.2.3 Vessels Charged With Religious, Nonmilitary Scientific, or Philanthropic
Missions. Vessels charged with religious, nonmilitary scientific, or philanthropic missions are
exempt from capture. 110 Vessels engaged in the collection of scientific data of potential military
application, however, would not be included within this exemption.
13.6.2.4 Vessels Granted Safe Conduct. Vessels and aircraft guaranteed safe

secondarily, if at all, for the purpose of humanity.”); Crawford v. The William Penn., 6 F. Cas. 778, 780-81(C.C.D.N.J. 1815) (“What is the character of a cartel vessel, and of the persons concerned in her navigation? The
flag of truce which she carries, throws over her and them the mantle of peace. She is, pro hac vice, a neutral
licensed vessel; and all persons concerned in her navigation, upon the particular service in which both belligerents
have employed her, are neutral, in respect to both, and under the protection of both. She cannot carry on commerce
under the protection of her flag, because this was not the business for which she was employed, and for which the
immunities of that flag were granted to her. She is engaged in a special service, to carry prisoners from one place toanother; and, whilst so engaged, she is under the protection of both belligerents, in relation to every act necessarily
connected with that service.”).
105

Refer to § 7.12.1.1 (Military Hospital Ships); § 7.12.1.2 (Commissioned Civilian Hospital Ships); § 7.12.1.3(Authorized Neutral Civilian Hospital Ships).
106

Refer to § 7.12.6.2 (Conditions That Do Not Deprive Hospital Ships and Sick-Bays of Vessels of Their
Protection).
107

Refer to § 7.12.6.3 (Arming of Hospital Ships and Equipping Them With Defensive Devices).

108

Refer to § 7.12.2.7 (Use of Secret Codes for Communication).

109

Refer to § 7.12.2.2 (No Use for Military Purposes); § 7.10.3.1 (Acts Harmful to the Enemy).

110

HAGUE XI art. 4 (“Vessels charged with religious, scientific, or philanthropic missions are likewise exempt from
capture.”).

895

conduct by prior arrangement between the belligerents are exempt from capture. 111
13.6.2.5 Small Coastal Fishing Vessels and Small Boats Engaged in Local
Coastal Trade. Small coastal (not deep-sea) fishing vessels and small boats engaged in local
coastal trade are exempt from capture. 112
13.7 SUBMARINE WARFARE
13.7.1 General Principle – Same Rules Applicable to Both Submarine and Surface
Warships. Submarine warships must comply with the same law of war rules that apply tosurface warships. 113 For example, in their action with regard to merchant ships, submarines must
conform to the law of war rules to which surface vessels are subject. 114 In general, submarines
must provide for the safety of passengers, crew, and ship’s papers before destruction of an
enemy merchant vessel. 115 However, the same exceptions to this rule that permit surface ships toattack enemy merchant vessels that are military objectives also permit submarines to conduct
such attacks. 116
13.7.2 Different Application of Law of War Rules in the Context of Submarine Warfare.
Although submarines must comply with the same law of war rules as surface ships, a law of war
rule may apply differently in the context of submarine warfare because of the different
circumstances of submarine warfare as compared to surface warfare.
For example, like surface warships, submarine warships also have an obligation to search
111

Refer to § 12.6.3 (Safe Conduct).

112

HAGUE XI art. 3 (“Vessels used exclusively for fishing along the coast or small boats employed in local trade are
exempt from capture, as well as their appliances, rigging, tackle, and cargo. They cease to be exempt as soon as
they take any part whatever in hostilities. The Contracting Powers agree not to take advantage of the harmlesscharacter of the said vessels in order to use them for military purposes while preserving their peaceful appearance.”);The Paquete Habana, 175 U.S. 677, 708 (1900) (“This review of the precedents and authorities on the subject
appears to us abundantly to demonstrate that at the present day, by the general consent of the civilized nations of theworld, and independently of any express treaty or other public act, it is an established rule of international law,founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of
belligerent States, that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed, andhonestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize ofwar. The exemption, of course, does not apply to coast fishermen or their vessels, if employed for a warlike
purpose, or in such a way as to give aid or information to the enemy; nor when military or naval operations create anecessity to which all private interests must give way. Nor has the exemption been extended to ships or vessels
employed on the high sea in taking whales or seals, or cod or other fish which are not brought fresh to market, but
are salted or otherwise cured and made a regular article of commerce.”).
113

2007 NWP 1-14M ¶8.7 (“The law of armed conflict imposes essentially the same rules on submarines as apply tosurface warships.”); 1997 NWP 9 ¶8.3 (same); 1989 NWP 9 ¶8.3 (same).
114

Treaty for the Limitation and Reduction of Naval Armament, art. 22, Apr. 22, 1930, 46 STAT. 2858, 2881 (“Intheir action with regard to merchant ships, submarines must conform to the rules of International Law to whichsurface vessels are subject.”). Consider Procès-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part
IV of the Treaty of London of April 22, 1930, Nov. 6, 1936, 173 LNTS 353, 357 (same).
115

Refer to § 13.5.1.3 (Destruction of Captured Enemy Merchant Vessels).

116

Refer to § 13.5.2 (Attack of Enemy Merchant Vessels).

896

for and collect the shipwrecked, wounded, and sick after an engagement. 117 This obligation,
however, is subject to certain practical limitations, and the practical limitations faced bysubmarines may be different than those faced by surface vessels. 118 For example, although asurface warship might be able to take on board survivors after an engagement, a submarine may
have limited passenger carrying capabilities. Thus, it may be necessary to rely on othermeasures (e.g., such as passing the location of possible survivors to a surface ship, aircraft, or
shore facility capable of rendering assistance) to comply with the law of war obligation. 119
13.8 BELLIGERENT CONTROL OF THE IMMEDIATE AREA OF NAVAL OPERATIONS
13.8.1 Belligerent Right to Establish Special Restrictions in the Immediate Area of Naval
Operations. Within the immediate area or vicinity of naval operations, to ensure proper battle
space management and self-defense objectives, a belligerent State may establish special
restrictions upon the activities of neutral vessels and aircraft, and may prohibit altogether such
vessels and aircraft from entering the area. 120
The immediate area or vicinity of naval operations is that area within which hostilities aretaking place, or belligerent State forces are actually operating. 121

117

Refer to § 7.4.1 (GWS-Sea Obligation Regarding the Search, Collection, and Affirmative Protection of the
Wounded, Sick, Shipwrecked, and Dead).
118

Refer to § 7.4.4 (Practical Limitations on the Obligation to Search for, Collect, and Take Measures to Protect the
Wounded, Sick, and Shipwrecked).
119

Affidavit subscribed by Chester W. Nimitz, Fleet Admiral, Chief of Naval Operations, U.S. Navy from Joseph L.
Broderick, Lieutenant Commander, U.S. Naval Reserve, of the International Law Section, Office of the Judge
Advocate General, Navy Department (11 May 1946), in XVII TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE
IMT 379-80 (“13. Q: ‘Were, by order or on general principles, the U.S. submarines prohibited from carrying out
rescue measures toward passengers and crews of ships sunk without warning in those cases where by doing so thesafety of their own boat was endangered?’ ‘A: ‘On general principles, the U.S. submarines did not rescue enemy
survivors if undue additional hazard to the submarine resulted or the submarine would thereby be prevented fromaccomplishing its further mission. U.S. submarines were limited in rescue measures by small passenger-carrying
facilities combined with the known desperate and suicidal character of the enemy. Therefore, it was unsafe to pickup many survivors. Frequently survivors were given rubber boats and/or provisions. Almost invariably survivors
did not come aboard the submarine voluntarily, and it was necessary to take them prisoner by force.’”).
120

2007 NWP 1-14M ¶7.8 (“Within the immediate area or vicinity of naval operations, to ensure proper battle space
management and self-defense objectives, a belligerent may establish special restrictions upon the activities of neutral
vessels and aircraft and may prohibit altogether such vessels and aircraft from entering the area.”); 1955 NWIP
¶430b (“Within the immediate area or vicinity of naval operations, a belligerent may establish special restrictions(see, for example, paragraph 520a) upon the activities of neutral vessels and aircraft and may prohibit altogether
such vessels and aircraft from entering the area.”); 2006 AUSTRALIAN MANUAL ¶6.16 (“Within the immediate areaor vicinity of naval operations, a belligerent may establish special restrictions upon the activities of neutral vessels
and aircraft and may prohibit altogether such vessels and aircraft from entering the area.”); 2004 UK MANUAL¶13.80 ( “Nothing in paragraphs 13.65 to 13.79 [on blockades and security zones] should be deemed to derogate
from the customary belligerent right to control neutral vessels and aircraft in the immediate vicinity of naval
operations.”).
121

2007 NWP 1-14M ¶7.8 (“The immediate area or vicinity of naval operations is that area within which hostilities
are taking place or belligerent forces are actually operating.”); 1997 NWP 9 ¶7.8 (same); 1989 NWP 9 ¶7.8
(substantially similar); TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 300 (“It should be emphasized, though,897

Belligerent State control over neutral vessels and aircraft within the immediate area ofnaval operations is based upon a belligerent State’s right to ensure the security of its forces andits right to conduct hostilities without interference from neutrals. 122
A belligerent State may not purport to deny access to neutral States, or to close aninternational strait to neutral shipping, pursuant to this authority unless another route of similar
convenience remains open to neutral traffic. 123
13.8.2 Belligerent Right to Control Communication of Neutral Merchant Vessels or
Aircraft at Sea. A belligerent warship may exercise control over the communications of any
neutral merchant vessel or civil aircraft whose presence in the immediate vicinity of naval
operations might otherwise endanger or jeopardize those operations. 124
A neutral merchant ship or civil aircraft within that area that fails to conform to abelligerent warship’s directions concerning communications may thereby assume enemy
character and risk being fired upon or captured. 125 Any transmission to an opposing belligerent
State of information concerning military operations or military forces is inconsistent with theneutral State’s duties of abstention and impartiality, and renders the neutral State’s vessel oraircraft making such a communication liable to capture or destruction. 126

that the immediate area of naval operations refers to an area within which naval hostilities are taking place or within
which belligerent forces are actually operating.”).
122

TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 301 (“The claim to control neutral vessels and aircraftwithin the immediate vicinity of operating forces is essentially a limited and transient one and is based not only upon
the right of a belligerent to insure the security of his forces but upon the right to attack and to defend himself without
interference from neutrals.”).

123

2007 NWP 1-14M ¶7.8 (“A belligerent may not, however, purport to deny access to neutral nations, or to close
an international strait to neutral shipping, pursuant to this authority unless another route of similar convenience
remains open to neutral traffic.”); 1997 NWP 9 ¶7.8 (same); 1989 NWP 9 ¶7.8 (same). Compare § 13.10.2.5(Limitations on the Scope of the Blockade).
124

2007 NWP 1-14M ¶7.8 (“The commanding officer of a belligerent warship may exercise control over thecommunication of any neutral merchant vessel or civil aircraft whose presence in the immediate area of naval
operations might otherwise endanger or jeopardize those operations.”); 1955 NWIP 10-2 ¶520a (“Within theimmediate vicinity of his forces, a belligerent commanding officer may exercise control over the communications of
any neutral merchant vessel or aircraft whose presence might otherwise endanger the success of the operations.”);2006 AUSTRALIAN MANUAL ¶6.17 (“Within the immediate area or vicinity of naval operations, a commanding
officer of a belligerent warship may exercise control over the communications of any neutral merchant vessel oraircraft whose presence might otherwise endanger the success of the belligerent operation.”).
1252007 NWP 1-14M ¶7.8 (“A neutral merchant ship or civil aircraft within that area that fails to conform to abelligerent’s directions concerning communications may thereby assume enemy character and risk being fired uponor captured.”); 1955 NWIP 10-2 ¶430b (“Neutral vessels and aircraft which fail to comply with a belligerent’s
orders expose themselves to the risk of being fired upon. Such vessels and aircraft are also liable to capture (seesubparagraph 503d7).”).
1262007 NWP 1-14M ¶7.8 (“Any transmission to an opposing belligerent of information concerning military
operations or military forces is inconsistent with the neutral duties of abstention and impartiality and renders theneutral vessel or aircraft liable to capture or destruction.”). Consider Commission of Jurists to Consider and Report
Upon the Revision of the Rules of Warfare, General Report, Part I: Rules for the Control of Radio in Time of War,art. 6, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 2, 7-8 (1938) (“1. The transmission
by radio by a vessel or an aircraft, whether enemy or neutral, when on or over the high seas of military intelligence898

Legitimate distress communications should be permitted to the extent that the success ofthe operation is not prejudiced thereby. 127
13.9 MARITIME AND AIRSPACE ZONES: EXCLUSION, WAR, OPERATIONAL, WARNING, AND
SAFETY
Belligerent States may establish various maritime and airspace zones during armed
conflict. The legal rules that apply to the establishment and enforcement of a zone may dependon the function of the zone and, in particular, whether additional belligerent rights are asserted asa consequence of vessels entering the zone.
Neutral or non-belligerent States have established such zones. 128
13.9.1 Authority to Establish Zones. The authority necessary to establish a zone may
depend on the location of the zone and the belligerent rights that are asserted as a consequence ofvessels entering the zone.
The establishment of a zone in a State’s waters may rely on its sovereignty over thosewaters. 129 Similarly, the establishment of a zone in a State’s airspace may rely on its sovereignty
over that airspace. 130 The right of a belligerent State to establish a zone outside its territory may
rely on the belligerent State’s: (1) right to interdict contraband; (2) right to control theimmediate area of operations; or (3) right of blockade. 131
Exclusion zones may also be established in accordance with an appropriate resolution
adopted by the U.N. Security Council.
13.9.2 Use of Zones to Warn Vessels or Aircraft – War, Operational, Warning, andfor the immediate use of a belligerent is to be deemed a hostile act and will render the vessel or aircraft liable to be
fired upon. 2. A neutral vessel or neutral aircraft which transmits when on or over the high seas information
destined for a belligerent concerning military operations or military forces shall be liable to capture. The prize court
may condemn the vessel or aircraft if it considers that the circumstances justify condemnation.”).
127

2007 NWP 1-14M ¶7.8 (“Legitimate distress communications should be permitted to the extent that the successof the operation is not prejudiced thereby.”); 1955 NWIP 10-2 ¶520a (“Legitimate distress communications byneutral vessels and aircraft should be permitted if they do not prejudice the success of such operations.”).
128

For example, The Nyon Arrangement Between the United Kingdom of Great Britain and Northern Ireland,
Bulgaria, Egypt, France, Greece, Roumania, Turkey, the Union of Soviet Socialist Republics and Yugoslavia,
Sept.14, 1937, 181 LNTS 135.
129

Refer to § 13.2.2 (National Waters). For example, L.F.E. Goldie, Maritime War Zones & Exclusion Zones, 64
U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 156, 189-90 (1991) (“At this point it may be noted inpassing that ‘Operation Market Time,’ which was enforced by the United States Navy during the Vietnamese War
was legally valid since it was a law-enforcement operation limited to a distance of twelve miles from the low watermark of South Vietnam (it did not extend north beyond the DMZ) and so within the domestic competence of South
Vietnam, which legislated to empower the activity. Since that operation was conducted entirely within the territorial
sea and contiguous zone of South Vietnam, it does not come within the perspective of the present paper.”).
130

Refer to § 14.2.1.1 (National Airspace).

131

Refer to 15.12 (Neutral Commerce and Carriage of Contraband); § 13.8 (Belligerent Control of the Immediate
Area of Naval Operations); § 13.10 (Blockade).

899

Safety Zones. A zone may be issued to advise vessels or aircraft to remain clear of an area ofnaval operations. Such a zone may also provide procedures to reduce the risk of neutral vessels
being mistakenly attacked. 132
Such zones have been used: (1) to identify a particularly dangerous operational area; 133(2) to assist in the defense of a particular area; 134 or (3) to assist in the defense of particular naval
forces (i.e., a defensive bubble). 135
The establishment of such a zone does not relieve the proclaiming belligerent State of its
obligation under the law of war to refrain from attacking vessels and aircraft that do notconstitute military objectives. Thus, a vessel or aircraft that is otherwise protected does notforfeit its protection from being made the object of attack simply by entering a zone of the ocean132

For example, HYDROLANT 597/03 (54,56) EASTERN MEDITERRANEAN SEA (202135Z MAR 2003),
reprinted in 2007 NWP 1-14M, Appendix A (“2. ALL VESSELS SHOULD MAINTAIN A SAFE DISTANCEFROM U.S. FORCES SO THAT INTENTIONS ARE CLEAR AND UNDERSTOOD BY U.S. FORCES.
VESSELS THAT ENTER THE MARITIME SAFETY ZONE WHICH ARE APPROACHING U.S. FORCES, OR
VESSELS WHOSE INTENTIONS ARE UNCLEAR ARE SUBJECT TO BOARDING AND VISIT BY U.S.
FORCES. ALL VESSELS APPROACHING U.S. FORCES ARE REQUESTED TO MAINTAIN RADIOCONTACT WITH U.S. FORCES ON BRIDGE-TO-BRIDGE CHANNEL 16. 3. U.S. FORCES WILL EXERCISEAPPROPRIATE MEASURES IN SELF-DEFENSE IF WARRANTED BY THE CIRCUMSTANCES. VESSELSAPPROACHING U.S. FORCES WILL HELP MAKE THEIR INTENTIONS CLEAR AND AVOIDUNNECESSARY INITIATION OF SUCH DEFENSIVE MEASURES BY MAKING PRIOR CONTACT AS
DESCRIBED ABOVE.”).
133

For example, HYDROLANT 597/03 (54,56) EASTERN MEDITERRANEAN SEA (202135Z MAR 2003),
reprinted in 2007 NWP 1-14M, Appendix A (“U.S. FORCES IN THE EASTERN MEDITERRANEAN HAVEESTABLISHED A MARITIME SAFETY ZONE AND ARE CONDUCTING COMBAT OPERATIONS IN
INTERNATIONAL WATERS THAT POSE A HAZARD TO NAVIGATION. ALL VESSELS ARE ADVISEDTO EXERCISE EXTREME CAUTION AND TO REMAIN CLEAR OF THE FOLLOWING DESIGNATEDOPERATION AREA BOUND BY 32-28.0N 033-22.0E, 31-40.0N 033-22.0E, 31-55.0N 032-20.0E, 32-46.8N 03220.0E.”).
134

For example, Woodrow Wilson, Executive Order Establishing Defensive Sea Areas, No. 2584, Apr. 5, 1917,
reprinted in 12 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 13, 16 (1918) (“I, WOODROW WILSON, President of theUnited States of America, do order that defensive sea areas are hereby established, to be maintained until further
notification, at the places and within the limits prescribed as follows, … The responsibility of the United States ofAmerica for any damage inflicted by force of arms with the object of detaining any person or vessel proceeding incontravention to Regulations duly promulgated in accordance with this Executive order shall cease from this date.”).
135

For example, A.D. Parsons, Letter Dated 24 April 1982 from the Permanent Representative of the United
Kingdom of Great Britain and Northern Ireland to the United Nations Addressed to the President of the Security
Council, U.N. Doc. S/14997 (“Further to Mr. Whyte’s letter dated 9 April 1982 (S/14963), I have the honour, on
instructions from my Government, to inform you that the following communication was conveyed to theGovernment of Argentina on 23 April 1982: In announcing the establishment of a maritime exclusion zone aroundthe Falkland Islands, Her Majesty’s Government made it clear that this measure was without prejudice to the right of
the United Kingdom to take whatever additional measures may be needed in the exercise of its right of self-defence
under Article 51 of the United Nations Charter. In this connection, Her Majesty’s Government now wishes to makeclear that any approach on the part of Argentine warships, including submarines, naval auxiliaries, or military
aircraft which could amount to a threat to interfere with the mission of the British forces in the South Atlantic, willencounter the appropriate response. All Argentine aircraft including civil aircraft engaging in surveillance of these
British forces will be regarded as hostile and are liable to be dealt with accordingly.”).

900

on the high seas established by a belligerent State. 136
In some cases, however, the fact that a vessel or aircraft enters a zone withoutauthorization may be probative in assessing whether it is entitled to protection (e.g., whether it isan enemy military vessel or aircraft, or whether it has acquired the character of enemy military
vessels or aircraft). 137 For example, the notification of the zone in advance may mean that mostneutral or protected vessels and aircraft have departed the area. Similarly, the entry into the zoneof an unidentified vessel without authorization may be probative of whether the vessel
constitutes a military objective.
13.9.3 Use of Zones to Counter Enemy Logistics. Zones may be used to assist in theimplementation of the belligerent’s strategy to counter the adversary’s logistics. 138 For example,
zones may be established to facilitate the interdiction of contraband. 139 As a case in point, azone may be established to warn neutral vessels and aircraft that they will be subject to visit andsearch if they attempt to enter the zone without authorization.
Zones may not be employed for the purpose of starving the civilian population. 140 Suchzones must not impose an unreasonable burden on neutral commerce in free goods. 141

136

John H. McNeil, Neutral Rights and Maritime Sanctions: The Effects of Two Gulf Wars, 31 VIRGINIA JOURNAL
OF INTERNATIONAL LAW 631, 635-36 (1991) (“Iraq replied to these Iranian declarations by proclaiming a series of
escalating exclusion zones, beginning with a ‘prohibited war zone;’ Iraq declared that it would ‘attack all vessels’appearing within these zones, and stated that ‘all tankers, regardless of nationality, docking at Kharg Island aretargets for the Iraqi Air Force.” As noted earlier, Iraq launched the Tanker War in 1984 in an apparent bid tointernationalize the war. During the first months of this new offensive, some seventy ships were hit, many of whichwere neutral-flag tankers bound to or from the massive Iranian oil terminal at Kharg Island. But international law
has never legitimized attacks upon neutral merchant vessels simply because they ventured into a specified area ofthe high seas.”).
137

Refer to § 15.14.2.1 (Acquiring the Character of an Enemy Warship or Military Aircraft).

138

For example, L.F.E. Goldie, Maritime War Zones & Exclusion Zones, 64 U.S. NAVAL WAR COLLEGE
INTERNATIONAL LAW STUDIES 156, 185-86 (1991) (“(a) The Exclusion Zone of the Skaggerak The Skaggerak is anarm of the North Sea on its eastern side and lies between Denmark and Norway. It is some 150 nautical miles inlength and 85 miles in width. … The argument vindicating the British proclamation of the Skaggerak as a maritime
exclusion zone under emerging customary international law may be accepted, since the strategy for enforcing theexclusion of the adversary from the zone was an apparently successful one. It was a persisting logistical strategy
enforced by both aircraft and submarines providing an adequate ratio of force to space. This proposition can beanalyzed out into the following elements. (i) The zone was reasonable in area, and despite German surface naval
power, the logistical strategy was persistently maintained and was made effective through submarine and aerial
warfare; (ii) The object, while not primarily one of self-defense, was for the related purposes of: … (b) encumbering
Germany’s reinforcements and supplies destined for its oppressive occupation of Norway—a victim of Nazi
aggression; (c) the target shipping had military objectives and purposes and could not be viewed as carrying supplies
which had the object of benefitting the civilian population of Norway;”).
139

Refer to § 15.12 (Neutral Commerce and Carriage of Contraband).

140

Refer to § 5.20 (Starvation).

141

See 2007 NWP 1-14M ¶7.9 (“To the extent that such zones serve to warn neutral vessels and aircraft away frombelligerent activities and thereby reduce their exposure to collateral damage and incidental injury (see paragraph8.3.1), and to the extent that they do not unreasonably interfere with legitimate neutral commerce, they are
undoubtedly lawful.”).

901

13.9.4 Use of Zones to Prevent Movement – Exclusion Zones. Belligerents may
establish exclusion zones that prohibit the entry of vessels or aircraft without authorization fromthat belligerent. 142 Such zones may suspend the right of innocent passage through non-neutral
waters. 143
The extent, location, and duration of the exclusion zone and the measures imposed should
not exceed what is required by military necessity. 144
Belligerents establishing such zones must provide safe passage through the zone forneutral vessels and aircraft where the geographical extent of the zone significantly impedes freeand safe access to the ports and coasts of a neutral State and, unless military requirements do not
permit, in other cases where normal navigation routes are affected. 145
13.9.5 Procedures for Declaring a Zone. As a matter of practice, maritime and/or aerial
warnings (e.g., HYDROLANT, HYDROPAC, Notice to Airmen (NOTAM)) would ordinarily be
promulgated as part of the establishment of a maritime or airspace zone.

142

For example, 2004 UK MANUAL ¶12.58 footnote 76 (“During the Falklands conflict 1982, a total exclusion zoneof 200 nautical miles was established around the Islands. It applied, inter alia, to any aircraft, military or civil,
operating in support of the illegal occupation by the Argentine forces, and any aircraft (military or civil) foundwithin the zone without authority from the Ministry of Defence would be regarded as operating in support of theillegal occupation and thus hostile and liable to be attacked by the British forces.”).

143

For example, HYDROPAC 795/2004 (62) PERSIAN GULF (030850Z MAY 2004), reprinted in 2007 NWP 114M, Appendix C (“8. ADDITIONALLY, EFFECTIVE IMMEDIATELY, EXCLUSION ZONES AREESTABLISHED AND THE RIGHT OF INNOCENT PASSAGE IS TEMPORARILY SUSPENDED IN
ACCORDANCE WITH INTERNATIONAL LAW AROUND THE KAAOT AND ABOT OIL TERMINALSWITHIN IRAQI TERRITORIAL WATERS. THE EXCLUSION ZONES EXTEND 2000 METERS FROM THE
OUTER EDGES OF THE TERMINAL STRUCTURES IN ALL DIRECTIONS. 9. ONLY TANKERS ANDSUPPORT VESSELS AUTHORIZED BY TERMINAL OPERATORS OR COALITION MARITIME SECURITY
FORCES ARE ALLOWED TO ENTER THE EXCLUSION ZONES. VESSELS ATTEMPTING TO ENTER THE
ZONES WITHOUT AUTHORIZATION MAY BE SUBJECT TO DEFENSIVE MEASURES, INCLUDING
WHEN NECESSARY, THE USE OF DEADLY FORCE. ALL REASONABLE EFFORTS WILL BE TAKEN TO
WARN VESSELS AWAY BEFORE EMPLOYING DEADLY FORCE. HOWEVER, DEADLY FORCE WILL
BE EMPLOYED WHEN NECESSARY TO PROTECT COALITION MARITIME SECURITY FORCES,LEGITIMATE SHIPPING PRESENT IN THE EXCLUSION ZONES AND THE OIL TERMINALS.”).
144

For example, Wolff Heintschel von Heinegg, The Law of Armed Conflict at Sea, in DIETER FLECK, THE
HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 467 (¶1049) (“On 28 April 1982 Great Britain
proclaimed a ‘Total Exclusion Zone’ (TEZ) in the South Atlantic. Beside deterring the Argentine naval forces fromleaving their ports, its main purpose was to facilitate the early identification of military objectives and to prevent
vessels flying neutral flags from conveying information to Argentina. … On one hand, the British TEZ covered anarea of 200 nautical miles measured from the centre of the main island. On the other hand, the TEZ was situated far
from any main shipping lanes. Moreover, its duration was comparatively short. It did not serve economic warfare
purposes but was aimed at facilitating military operations, including identification. Vessels and aircraft flying flagsof states not parties to the conflict suffered no damage whatsoever. For these reasons, only the former USSR
officially protested against the British TEZ.”).
145

2007 NWP 1-14M ¶7.9 (“Belligerents creating such zones must provide safe passage through the zone for neutral
vessels and aircraft where the geographical extent of the zone significantly impedes free and safe access to the ports
and coasts of a neutral state and, unless military requirements do not permit, in other cases where normal navigationroutes are affected.”).

902

13.10 BLOCKADE
A blockade is an operation by a belligerent State to prevent vessels and/or aircraft of all
States, enemy as well as neutral, from entering or exiting specified ports, airfields, or coastal
areas belonging to, occupied by, or under the control of an enemy belligerent State. 146
13.10.1 Purpose of Blockade and Belligerent Rights Associated With Blockade. The
purpose of a blockade is to deprive the adversary of supplies needed to conduct hostilities. 147
A blockade enables the blockading State to control traffic in the blockaded area. A
blockade also enables the blockading State to take measures on the high seas to deny supplies toa blockaded area. 148 For example, a blockading State has the right to visit and search vessels on
the high seas to enforce its blockade. 149
13.10.2 Criteria for Blockades. In order to be binding, a blockade must meet certain
criteria.
13.10.2.1 Authority for the Establishment of a Blockade. A blockade must be
established by proper legal authority. The establishment of a blockade has been accomplishedby a declaration of the belligerent State, or by the commander of the blockading force acting on
behalf of the belligerent State. 150
The U.N. Security Council is also expressly given the authority by the Charter of theUnited Nations to authorize blockades. 151 A blockade of the ports or coasts of a State is
generally regarded as a measure involving force against that State for the purposes of the Charter146

2007 NWP 1-14M ¶7.7.1 (“Blockade is a belligerent operation to prevent vessels and/or aircraft of all nations,enemy as well as neutral, from entering or exiting specified ports, airfields, or coastal areas belonging to, occupied
by, or under the control of an enemy nation.”); 1997 NWP 9 ¶7.7.1 (same); 1989 NWP 9 ¶7.7.1 (same); 1955 NWIP
10-2 ¶632a (“A blockade is a belligerent operation intended to prevent vessels of all States from entering or leaving
specified coastal areas which are under the sovereignty, under the occupation, or under the control of an enemy.”).
147

ICRC AP COMMENTARY 654 (¶2095) (“It should be emphasized that the object of a blockade is to deprive theadversary of supplies needed to conduct hostilities, and not to starve civilians.”).
148
John Reese Stevenson, Legal Adviser, Department of State, Letter dated June 6, 1972, reprinted in Steven C.
Nelson, Contemporary Practice of the United States Relating to International Law, 66 AJIL 836, 837 (1972) (“Tohave declared a blockade could have implied, under traditional international law, a whole range of actions which
would have extended the area of hostilities and risked grave dangers of widening the conflict. The traditional law ofblockade requires a formal declaration of the establishment of the blockade and notification of it to all states. A
blockade must be ‘effective’ in preventing all ingress or egress—including commercial trade and activities—from orto the enemy's coast. The blockading state would have the right to stop vessels of any nation anywhere on the highseas, to inspect and search such vessels, to seize them if they are bound to or from the blockaded ports, andeventually to condemn them and their cargos in a prize court. Ships attempting to violate the blockade could betaken under fire should they fail to stop on order.”).
149

Refer to § 15.13.1 (Purposes of Visit and Search).

150

Consider DECLARATION OF LONDON art. 9 (1909) (“A declaration of a blockade is made either by the blockading
Power or by the naval authorities acting in its name.”).
151

Refer to § 1.11.4.2 (Use of Force Authorized by the U.N. Security Council Acting Under Chapter VII of theCharter of the United Nations).

903

of the United Nations. 152
13.10.2.2 Notification of the Blockade. It is customary for the belligerent Stateestablishing the blockade to notify all affected States of its imposition. 153 The commander of theblockading forces will usually also notify local authorities in the blockaded area. 154
Notification should include, as a minimum, the date the blockade is to begin, its
geographic limits, and the grace period granted neutral vessels and aircraft to leave the area to be
blockaded. 155
The form of the notification is not material so long as it is effective, and a variety ofmethods may be used. 156
152

See, e.g., Legal and Practical Consequences of a Blockade of Cuba, Oct. 19, 1962, 1 SUPPLEMENTAL OPINIONSOF THE OFFICE OF LEGAL COUNSEL 486, 490 (2013) (“The legality today of a blockade unilaterally imposed by one

state upon another depends upon its compatibility with the language and principles of the Charter. Ordinarily it, likeother measures involving force, is reserved to the United Nations or to regional organizations such as the OAS. If
imposed unilaterally without prior approval it must be considered a reasonable measure under the circumstances,
proportional to the threat posed, and limited to a legitimate purpose. It does not become more or less lawful on thebasis of declaration of war or a failure to declare war.”); Definition of Aggression, arts. 1, 3, Annex to U.N.
GENERAL ASSEMBLY RESOLUTION 3314 (XXIX), Definition of Aggression, U.N. Doc. A/RES/3314 (XXIX) (Dec.
14, 1974) (“Aggression is the use of armed force by a State against the sovereignty, territorial integrity or politicalindependence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out
in this Definition. … Any of the following acts, regardless of a declaration of war, shall, subject to and inaccordance with the provisions of article 2, qualify as an act of aggression: ... (c) The blockade of the ports or coasts
of a State by the armed forces of another State.”).
153

2007 NWP 1-14M ¶7.7.2.2 (“It is customary for the belligerent nation establishing the blockade to notify allaffected nations of its imposition.”); 1955 NWIP 10-2 ¶632b (“It is customary for the blockade to be notified in asuitable manner to the governments of all States.”). Consider 1909 DECLARATION OF LONDON art. 11 (“Adeclaration of blockade is notified– (1) to neutral Powers, by the blockading Power, by means of a communication
addressed to the Governments direct, or to their representatives accredited to it.”).
154

2007 NWP 1-14M ¶7.7.2.2 (“The commander of the blockading forces will usually also notify local authorities inthe blockaded area.”); 1955 NWIP 10-2 ¶632b (“The commander of the blockading force usually makes notification
to local authorities in the blockaded area.”). Consider 1909 DECLARATION OF LONDON art. 11 (“A declaration ofblockade is notified– … (2) to the local authorities, by the officer commanding the blockading force. The local
authorities will, in turn, inform the foreign consular officers at the port or on the coastline under blockade as soon as
possible.”).
155

2007 NWP 1-14M ¶7.7.2.1 (“The declaration should include, as a minimum, the date the blockade is to begin, its
geographic limits, and the grace period granted neutral vessels and aircraft to leave the area to be blockaded.”); 1955
NWIP 10-2 ¶632b (“The declaration should include the date the blockade begins, the geographical limits of theblockade, and the period granted neutral vessels and aircraft to leave the blockaded area.”). Consider 1909
DECLARATION OF LONDON art. 9 (“A declaration of blockade is made either by the blockading Power or by the naval
authorities acting in its name. It specifies– (1) The date when the blockade begins; (2) The geographical limits ofthe coastline under blockade; (3) The period within which neutral vessels may come out.”).
156

For example, The Public Commission to Examine the Maritime Incident of 31 May 2010, et. al (The Turkel
Commission), Report: Part one, 162-63 (¶58) (Jan. 2010) (“In the case at hand, the State of Israel took the following
steps in order to give notice of the naval blockade: from the testimony of the Military Advocate-General, MajorGeneral Avichai Mendelblit, it can be seen that the Military Advocate-General’s Office asked the Ministry ofTransport to transmit information regarding the imposition of the naval blockade by all methods at its disposal, inorder to ensure that the notice would reach all vessels in the Mediterranean Sea. This was also done. The notice
was also published on the Internet sites of the IDF, the Shipping Authority, the Military Advocate-General, and the904

The notification of the blockade may establish a presumption of knowledge of theblockade that is required in the offense of breach or attempted breach of a blockade. 157
be effective.

158

13.10.2.3 Effectiveness of the Blockade. In order to be binding, a blockade must
This requirement of effectiveness is intended to prevent “paper” blockades. 159

The requirement of effectiveness means that the blockade must be maintained by forcesthat are sufficient to render ingress or egress of the blockaded area dangerous. 160 The
requirement of effectiveness does not preclude temporary absence of the blockading force, if
such absence is due to stress of weather or to some other reason connected with the blockade(e.g., pursuit of a blockade runner). 161
The forces that are necessary to make a blockade effective depend on the specific military

Ministry of Transport, and, as noted above, via several international channels. The announcement was alsotransmitted twice a day via the emergency channel for maritime communication to all ships within a distance of up
to 300 kilometers from the Israeli coast. In addition, notices were also sent to the flag States and the States that
Israel knew intended to send ships to the area. These steps clearly satisfy the requirement of ‘notice.’”).
157

Refer to § 13.10.4.2 (Knowledge of the Existence of Blockade).

158

Consider 1909 DECLARATION OF LONDON art. 2 (“In accordance with the Declaration of Paris of 1856, a
blockade, in order to be binding must be effective – that is to say, it must be maintained by a force sufficient reallyto prevent access to the enemy coastline.”); Declaration respecting maritime law signed by the Plenipotentiaries ofGreat Britain, Austria, France, Prussia, Russia, Sardinia, and Turkey, assembled in Congress at Paris, Apr. 16, 1856,
reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 89 (1907) (“4. Blockades, in order to be binding, must be
effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.”).
159

The Peterhoff, 72 U.S. 28, 50 (1867) (“It must be premised that no paper or constructive blockade is allowed byinternational law. When such blockades have been attempted by other nations, the United States have ever protested
against them and denied their validity. Their illegality is now confessed on all hands. It was solemnly proclaimed
in the Declaration of Paris of 1856, to which most of the civilized nations of the world have since adhered; and thisprinciple is nowhere more fully recognized than in our own country, though not a party to that declaration.”); The
Olinde Rodrigues, 174 U.S. 510, 513-14 (1899) (“The fourth maxim of the Declaration of Paris (April 16, 1856)
was: ‘Blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient really toprevent access to the coast of the enemy.’ Manifestly this broad definition was not intended to be literally applied.
The object was to correct the abuse, in the early part of the century, of paper blockades, where extensive coasts were
put under blockade by proclamation, without the presence of any force, or an inadequate force; and the question ofwhat might be sufficient force was necessarily left to be determined according to the particular circumstances.”).
160

See 2007 NWP 1-14M ¶7.7.2.3 (“To be valid, a blockade must be effective—that is, it must be maintained by asurface, air, or subsurface force or other legitimate methods and means of warfare that is sufficient to render ingressor egress of the blockaded area dangerous.”); 1955 NWIP 10-2 ¶632d (“A blockade, in order to be binding, must be
effective. This means that a blockade must be maintained by a force sufficient to render ingress and egress to orfrom the blockaded area dangerous.”); The Olinde Rodrigues, 174 U.S. 510, 515 (1899) (“Such is the settled
doctrine of the English and American courts and publicists, and it is embodied in the second of the instructions
issued by the Secretary of the Navy, June 20, 1898, General Order No. 492: ‘A blockade to be effective and binding
must be maintained by a force sufficient to render ingress to or egress from the port dangerous.’”).
161

2007 NWP 1-14M ¶7.7.2.3 (“The requirement of effectiveness does not preclude temporary absence of theblockading force, if such absence is due to stress of weather or to some other reason connected with the blockade(e.g., pursuit of a blockade runner).”). Consider 1909 DECLARATION OF LONDON art. 4 (“A blockade is not regarded
as raised if the blockading force is temporarily withdrawn on account of stress of weather.”).

905

circumstances. 162 The blockade may be maintained by forces that are some distance from theshore. 163
13.10.2.4 Impartial Application of the Blockade. A blockade must be applied
impartially to the vessels and aircraft of all States. 164 The requirement that a belligerent must
apply a blockade impartially to the vessels and aircraft of all States is intended to prevent
measures of discrimination by the blockading belligerent in favor of or against the vessels andaircraft of particular States, including its own or allied vessels and aircraft. 165
13.10.2.5 Limitations on the Scope of the Blockade. A blockade must not bar
access to, or departure from, neutral ports and coasts. 166
A blockade may not be used for the purpose of starving the civilian population, and the
expected incidental harm to the civilian population may not be excessive in relation to the
expected military advantage to be gained from employing the blockade. 167
13.10.3 Special Entry and Exit Authorization. In certain cases, vessels or aircraft may
enter or exit a blockaded area.
13.10.3.1 Neutral Warships and Military Aircraft. Although neutral warships andmilitary aircraft enjoy no positive right of access to blockaded areas, the belligerent State
imposing the blockade may authorize their entry and exit. Such special authorization may bemade subject to such conditions as the blockading force considers necessary and expedient. 168
162

See The Olinde Rodrigues, 174 U.S. 510, 516-18 (1899) (“As we hold that an effective blockade is a blockade soeffective as to make it dangerous in fact for vessels to attempt to enter the blockaded port, it follows that thequestion of effectiveness is not controlled by the number of the blockading force. In other words, the position
cannot be maintained that one modern cruiser though sufficient in fact is not sufficient as matter of law. … The
question of effectiveness must necessarily depend on the circumstances. We agree that the fact of a single capture is
not decisive of the effectiveness of a blockade, but the case made on this record does not rest on that ground. We
are of opinion that if a single modern cruiser blockading a port renders it in fact dangerous for other craft to enter theport, that is sufficient, since thereby the blockade is made practically effective.”).
163

2013 GERMAN MANUAL ¶1062 (“A blockade, in order to be binding, must be effective (25 Principle 4). It must
be maintained by armed forces sufficient to prevent access to the blockaded coast. Long distance blockades arealso permissible, i.e. the blockade and control of an enemy coast by armed forces at a greater distance from theblockaded coast as a result of military requirements.”); 2004 UK MANUAL ¶13.68 (“The force maintaining theblockade may be stationed at a distance determined by military requirements.”).
164

1955 NWIP 10-2 ¶632f (“A blockade must be applied equally (impartially) to the vessels and aircraft of allstates.”). Consider 1909 DECLARATION OF LONDON art. 5 (“A blockade must be applied impartially to the ships of
all nations.”).
165

1955 NWIP 10-2 ¶632f note 35 (“The requirement that a belligerent must apply a blockade impartially to thevessels and aircraft of all states is intended to prevent measures of discrimination by the blockading belligerent infavor of or against the vessels and aircraft of particular states, including its own or allied vessels and aircraft.”).
166

1955 NWIP 10-2 ¶632e (“A blockade must not bar access or departure from neutral ports or coasts.”). Consider
1909 DECLARATION OF LONDON art. 18 (“The blockading forces must not bar access to neutral ports or coasts.”).
167

Refer to § 5.20 (Starvation).

168

See 2007 NWP 1-14M ¶7.7.3 (“Although neutral warships and military aircraft enjoy no positive right of accessto blockaded areas, the belligerent imposing the blockade may authorize their entry and exit. Such special906

13.10.3.2 Neutral Vessels and Aircraft in Evident Distress. Neutral vessels andaircraft in evident distress should be authorized entry into a blockaded area, and subsequently
authorized to depart, under conditions prescribed by the officer in command of the blockading
force or responsible for maintenance of the blockading instrumentality (e.g., mines). 169
13.10.3.3 Passage of Relief Consignments Under the GC. Similarly, neutral
vessels and aircraft engaged in the carriage of qualifying relief supplies for the civilian
population and the sick and wounded should be authorized to pass through the blockade cordon,
subject to the right of the blockading force to prescribe the technical arrangements, including
search, under which passage is permitted. 170
13.10.4 Breach and Attempted Breach of Blockade. Breach or attempted breach of a
blockade subjects a neutral vessel or aircraft to capture. 171
13.10.4.1 Acts of Breach or Attempted Breach of Blockade. Breach of blockade is
the passage of a vessel or aircraft through a blockade without special entry or exit authorizationfrom the blockading belligerent. 172
Attempted breach of a blockade occurs from the time a vessel or aircraft leaves a port or
airfield with the intention of evading the blockade and, for vessels exiting the blockaded area,
continues until the voyage is completed. 173 A temporary anchorage in waters occupied by theauthorization may be made subject to such conditions as the blockading force considers to be necessary and
expedient.”); 1955 NWIP 10-2 ¶632h(1) (“Neutral warships and neutral military aircraft have no positive right ofentry to a blockaded area. However, they may be allowed to enter or leave a blockaded area as a matter of courtesy.
Permission to visit a blockaded area is subject to any conditions, such as the length of stay, that the senior officer ofthe blockading force may deem necessary and expedient.”). Consider 1909 DECLARATION OF LONDON art. 6 (“Thecommander of a blockading force may give permission to a warship to enter, and subsequently leave, a blockaded
port.”).
169

See 2007 NWP 1-14M ¶7.7.3 (“Neutral vessels and aircraft in evident distress should be authorized entry into a
blockaded area, and subsequently authorized to depart, under conditions prescribed by the officer in command of theblockading force or responsible for maintenance of the blockading instrumentality (e.g., mines).”); 1955 NWIP 10-2
¶632h(2) (“Neutral vessels and aircraft in urgent distress may be permitted to enter a blockaded area, andsubsequently to leave it, under conditions prescribed by the commander of the blockading force.”). Consider 1909
DECLARATION OF LONDON art. 7 (“In circumstances of distress, acknowledged by an officer of the blockading force,a neutral vessel may enter a place under blockade and subsequently leave it, provided that she has neither discharged
nor shipped any cargo there.”).
1702007 NWP 1-14M ¶7.7.3 (“Similarly, neutral vessels and aircraft engaged in the carriage of qualifying relief
supplies for the civilian population and the sick and wounded should be authorized to pass through the blockade
cordon, subject to the right of the blockading force to prescribe the technical arrangements, including search, underwhich passage is permitted.”). Refer to § 5.19.3 (Passage of Relief Consignments).
171

Refer to § 15.15.1 (Grounds for the Capture of Neutral Vessels and Aircraft).

172

2007 NWP 1-14M ¶7.7.4 (“Breach of blockade is the passage of a vessel or aircraft through a blockade without
special entry or exit authorization from the blockading belligerent.”); 1997 NWP 9 ¶7.7.4 (same); 1989 NWP 9¶7.7.4 (same); 1955 NWIP 10-2 ¶632g (“Breach of blockade is the passage of a vessel or aircraft through theblockade.”).
1732007 NWP 1-14M ¶7.7.4 (“Attempted breach of blockade occurs from the time a vessel or aircraft leaves a port
or airfield with the intention of evading the blockade, and for vessels exiting the blockaded area, continues until thevoyage is completed.”); 1997 NWP 9 ¶7.7.4 (same); 1989 NWP 9 ¶7.7.4 (substantially similar); 1955 NWIP 10-2907

blockading vessels does not justify capture, in the absence of other grounds. 174
A presumption arises that certain merchant vessels or aircraft are attempting to breach a
blockade where those vessels or aircraft are bound for a neutral port or airfield serving as a pointof transit to the blockaded area. 175
13.10.4.2 Knowledge of the Existence of Blockade. Knowledge of the existenceof the blockade is essential to the offenses of breach of blockade and attempted breach ofblockade; presumed knowledge is sufficient. 176
Knowledge may be presumed once a blockade has been declared and appropriate
notification provided to affected governments. 177 For example, a vessel in a blockaded port ispresumed to have notice of the blockade as soon as it commences. 178
A vessel sailing ignorantly (i.e., with neither presumptive nor actual knowledge) to a
blockaded port is not liable to capture, although it may be turned away from the blockaded
area. 179
¶632g(2) (“Attempted breach of blockade occurs from the time a vessel or aircraft leaves a port or air take-off pointwith the intent of evading the blockade.”).
174

The Teresita, 72 U.S. 180, 182 (1867) (“We are of opinion that, under such circumstances, temporary anchorage
in waters occupied by the blockading vessels, does not justify capture, in the absence of other grounds.”).
175

2007 NWP 1-14M ¶7.7.4 (“There is a presumption of attempted breach of blockade where vessels or aircraft arebound for a neutral port or airfield serving as a point of transit to the blockaded area.”); 1955 NWIP 10-2 ¶632g(1)(“There is a presumption of attempted breach of blockade where vessels and aircraft are bound to a neutral port or
airfield serving as a point of transit to the blockaded area.”); The Peterhoff, 72 U.S. 28, 55 (1867) (“It is an
undoubted general principle, recognized by this court in the case of The Bermuda, and in several other cases, that anulterior destination to a blockaded port will infect the primary voyage to a neutral port with liability for intended
violation of blockade.”). Compare § 15.12.2 (Requirement of Enemy Destination).
176

2007 NWP 1-14M ¶7.7.4 (“Knowledge of the existence of the blockade is essential to the offenses of breach ofblockade and attempted breach of blockade.”); 1997 NWP 9 ¶7.7.4 (same); 1989 NWP 9 ¶7.7.4 (same); 1955 NWIP
10-2 ¶632g (“Knowledge of the existence of a blockade is essential to the offenses of breach of blockade andattempted breach of blockade; presumed knowledge is sufficient.”). Consider 1909 DECLARATION OF LONDON art.
14 (“The liability of a neutral vessel to capture for breach of blockade is contingent on her knowledge, actual orpresumptive, of the blockade.”).
1772007 NWP 1-14M ¶7.7.4 (“Knowledge may be presumed once a blockade has been declared and appropriate
notification provided to affected governments.”); 1997 NWP 9 ¶7.7.4 (same); 1989 NWP 9 ¶7.7.4 (same). Consider
1909 DECLARATION OF LONDON art. 15 (“Failing proof to the contrary, knowledge of the blockade is presumed if
the vessel left a neutral port subsequently to the notification of the blockade to the Power to which such port
belongs, provided that such notification was made in sufficient time.”).
178

The Prize Cases, 67 U.S. 635, 677 (1863) (“A vessel being in a blockaded port is presumed to have notice of theblockade as soon as it commences. This is a settled rule in the law of nations.”).
179

Yeaton v. Fry, 9 U.S. 335, 342-43 (1809) (Marshall, C.J.) (“Hispaniola is excepted absolutely from the policy;
but other ports are within the terms of the voyage insured, if they be not blockaded. It is their character, as
blockaded ports, which excludes them from the insurance. Their being excepted by this character is thought tojustify the opinion, that it is the risk attending this character which produces the exception, and which is the risk
excepted. The risk of a blockaded port, as a blockaded port, is the risk incurred by breaking the blockade. This isdefined by public law. Sailing from Tobago for Curracoa, knowing Curracoa to be blockaded, would have incurred
this risk, but sailing for that port, without such knowledge, did not incur it.”).

908

13.11 NAVAL MINES
Naval mines are lawful weapons, i.e., they are not illegal per se. 180 However, specificrules apply to their use. These rules have developed largely to mitigate the risk these mines poseto neutral vessels. 181 Different rules apply to landmines. 182
13.11.1 Background on Naval Mines. Naval mines have been used for area denial,
coastal and harbor defense, anti-surface and anti-submarine warfare, and blockade.
Naval mines are sometimes classified as either armed or controlled mines, with
controlled mines having no destructive capability until affirmatively activated by an arming
order (thereby becoming armed mines). 183
13.11.2 Peacetime Mining. Naval mines may not be emplaced in internal waters, theterritorial sea, or archipelagic waters of another State in peacetime without that State’s
consent. 184

180

Refer to § 6.5 (Lawful Weapons).

181

For example, A. PEARCE HIGGINS, THE HAGUE PEACE CONFERENCES AND OTHER INTERNATIONAL CONFERENCES
CONCERNING THE LAWS AND USAGES OF WAR. TEXT OF CONVENTIONS WITH COMMENTARIES 328-29 (1909) (“TheRusso-Japanese War drew the attention of the world to the deadly results produced by floating mines. Though not
expressly mentioned in Count Benckendorff’s Circular, the laying of torpedoes, etc. (pose de torpilles, etc.) was
included among the subjects for consideration. Mines were employed in the Russo-Japanese War by bothbelligerents, and hundreds either broke adrift from their moorings or, not be anchored at all, floated into the highseas and caused serious loss of life to neutrals long after the conclusion of the war. In the course of the discussion of
the British proposal in Committee, the Chinese delegate made the following declaration which brings out strongly
the dangers to which neutral shipping is exposed by their employment: ‘At the same time, the Delegation [of China]
desires to bring to the knowledge of the delegates certain facts which it ventures to hope will suggest theexamination of this important proposition in a widely humanitarian sense. The Chinese Government is even to-day
obliged to furnish vessels engaged in coastal navigation with special apparatus to raise and destroy floating mines
which are found not only on the open sea but even in its territorial waters. In spite of the precautions which havebeen taken a very considerable number of coasting vessels, fishing boats, junks and sampans have been lost with all
hands without the details of these disasters being known to the western world. It is calculated from five to six
hundred of our countrymen engaged in their peaceful occupations have there met a cruel death in consequence of
these dangerous engines of war.’”) (amendment in original).
182

Refer to § 6.12 (Landmines, Booby-Traps, and Other Devices).

183

2007 NWP 1-14M ¶9.2.1 (“For purposes of this publication, naval mines are classified as armed or controlled
mines. Armed mines are either emplaced with all safety devices withdrawn, or are armed following emplacement,so as to detonate when preset parameters (if any) are satisfied. Controlled mines have no destructive capability until
affirmatively activated by some form of arming order (whereupon they become armed mines).”); 1989 NWP 9¶9.2.1 (“For purposes of this publication, naval mines are classified as armed or controlled mines. Armed mines areeither emplaced with all safety devices withdrawn, or are armed following emplacement, so as to detonate whenpreset parameters (if any) are satisfied. Controlled mines have no destructive capability until affirmatively activatedby some form of controlled arming order (whereupon they become armed mines).”).
184

2007 NWP 1-14M ¶9.2.2 (“Naval mines may not be emplaced in internal waters, territorial seas, or archipelagic
waters of another nation in peacetime without that nation’s consent.”). See also Military and Paramilitary Activities
in and Against Nicaragua (Nicaragua v. United States), Merits, Judgment, 1986 I.C.J. 14, 111-12 (¶¶213-15) (“Thelegal rules in the light of which these acts of mining should be judged depend upon where they took place. The
laying of mines within the ports of another State is governed by the law relating to internal waters, which are subject
to the sovereignty of the coastal State. The position is similar as regards mines placed in the territorial sea. It is909

13.11.2.1 A State’s Archipelagic Waters and Territorial Sea. A State’s right tomine its archipelagic waters and territorial sea during peacetime is subject to the right ofinnocent passage of foreign vessels. 185
If armed mines are emplaced in a State’s own archipelagic waters or territorial sea,
appropriate international notification of the existence and location of such mines is required. 186
Because the right of innocent passage may be suspended only temporarily, 187 armed mines must
be removed or rendered harmless as soon as the security threat that prompted their emplacement
has terminated. 188
Armed mines may not be emplaced in international straits or archipelagic sea lanes
during peacetime. 189
Emplacement of controlled mines in a State’s own archipelagic waters or territorial sea is
not subject to notification or removal requirements. 190
13.11.2.2 International Waters. Controlled mines may be emplaced ininternational waters (i.e., beyond the territorial sea of any State) if they do not unreasonablyinterfere with other lawful uses of the oceans. What constitutes an “unreasonable interference”
may involve a number of factors, including:•

the rationale for their emplacement (e.g., the self-defense requirements of the emplacing
State);•

the extent of the area to be mined;

therefore the sovereignty of the coastal State which is affected in such cases. … It has already been made clear
above that in peacetime for one State to lay mines in the internal or territorial waters of another is an unlawful act;”).
185

Refer to § 13.2.2.4 (Innocent Passage of Foreign Vessels Through Territorial Seas and Archipelagic Waters).

186

Corfu Channel Case (United Kingdom v. Albania), Merits, Judgment, 1949 I.C.J. 4, 22 (“The obligations
incumbent upon the Albanian authorities consisted in notifying, for the benefit of shipping in general, the existenceof a minefield in Albanian territorial waters and in warning the approaching British warships of the imminent danger
to which the minefield exposed them. Such obligations are based, not on the Hague Convention of 1907, No. VIII,
which is applicable in time of war, but on certain general and well-recognized principles, namely: elementary
considerations of humanity, even more exacting in peace than in war; the principle of the freedom of maritime
communication; and every State’s obligation not to allow knowingly its territory to be used for acts contrary to therights of other States.”).
187

Refer to § 13.2.2.4 (Innocent Passage of Foreign Vessels Through Territorial Seas and Archipelagic Waters).

188

2007 NWP 1-14M ¶9.2.2 (“Because the right of innocent passage can be suspended only temporarily, armed
mines must be removed or rendered harmless as soon as the security threat that prompted their emplacement has
terminated.”); 1997 NWP 9 ¶9.2.2 (same); 1989 NWP 9 ¶9.2.2 (same).
1892007 NWP 1-14M ¶9.2.2 (“Armed mines may not be emplaced in international straits or archipelagic sea lanes
during peacetime.”); 1997 NWP 9 ¶9.2.2 (same).
190
2007 NWP 1-14M ¶9.2.2 (“Emplacement of controlled mines in a nation’s own archipelagic waters or territorial
sea is not subject to such notification or removal requirements.”); 1997 NWP 9 ¶9.2.2 (same); 1989 NWP 9 ¶9.2.2(same).

910

•the hazard (if any) to other lawful ocean uses; and•the duration of their emplacement. 191

Because controlled mines do not constitute a hazard to navigation, international notice of
their emplacement is not required. 192
Armed mines may not be emplaced in international waters prior to the outbreak of armed
conflict, except under the most demanding requirements of individual or collective self-defense.
Should armed mines be emplaced in international waters under such circumstances, priornotification of their location must be provided. A State emplacing armed mines in international
waters during peacetime must maintain an on-scene presence in the area sufficient to ensure thatappropriate warning is provided to ships approaching the danger area. All armed mines must be
expeditiously removed or rendered harmless when the imminent danger that prompted theiremplacement has passed. 193
13.11.3 Naval Mining During Armed Conflict. Belligerent States may lawfully employ
naval mines subject to certain restrictions.
Neutral States that lay automatic contact mines off their coasts must observe the same
rules and take the same precautions as those that are imposed on belligerents. 194 In addition, aneutral State must inform ship owners, by a notice issued in advance, where automatic contact
mines have been laid. This notice must be communicated at once to the Governments throughthe diplomatic channel. 195
13.11.3.1 General Obligation to Take Feasible Precautions When Using Naval
Mines. The general obligation to take feasible precautions for the protection of civilians applies

191

2007 NWP 1-14M ¶9.2.2 (“The determination of what constitutes an ‘unreasonable interference’ involves abalancing of a number of factors, including the rationale for their emplacement (i.e., the self-defense requirements ofthe emplacing nation), the extent of the area to be mined, the hazard (if any) to other lawful ocean uses, and theduration of their emplacement.”).
192

2007 NWP 1-14M ¶9.2.2 (“Because controlled mines do not constitute a hazard to navigation, international
notice of their emplacement is not required.”); 1997 NWP 9 ¶9.2.2 (same); 1989 NWP 9 ¶9.2.2 (same).
193

2007 NWP 1-14M ¶9.2.2 (“Armed mines may not be emplaced in international waters prior to the outbreak ofarmed conflict, except under the most demanding requirements of individual or collective self-defense. Should
armed mines be emplaced in international waters under such circumstances, prior notification of their location must
be provided. A nation emplacing armed mines in international waters during peacetime must maintain an on-scene
presence in the area sufficient to ensure that appropriate warning is provided to ships approaching the danger area.
All armed mines must be expeditiously removed or rendered harmless when the imminent danger that prompted
their emplacement has passed.”).
194

HAGUE VIII art. 4 (“Neutral Powers which lay automatic contact mines off their coasts must observe the same
rules and take the same precautions as are imposed on belligerents.”).

195

HAGUE VIII art. 4 (“The neutral Power must inform ship-owners, by a notice issued in advance, where automatic
contact mines have been laid. This notice must be communicated at once to the Governments through the
diplomatic channel.”).

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when using naval mines. 196 In particular, when anchored automatic contact mines are employed,
every possible precaution must be taken for the security of peaceful shipping. 197
13.11.3.2 International Notification When Using Armed Mines. International
notification of the location of emplaced armed mines must be made as soon as military
exigencies permit. 198 Such notification may be conducted through official publicannouncements, communications to the United Nations, bilateral diplomatic notification, or
notices to mariners. 199
In particular, when anchored automatic contact mines are employed, belligerents
undertake to do their utmost to render these mines harmless within a limited time and, should
they cease to be under surveillance, to notify the danger zones as soon as military exigencies
permit, by a notice addressed to ship owners, which must also be communicated to theGovernments through the diplomatic channel. 200
13.11.3.3 Surveillance of Minefields. Surveillance or monitoring of minefields
may be an appropriate precaution to reduce the risk of harm to peaceful vessels by permitting
warning to be given to peaceful vessels that unwittingly venture near the minefield. 201
13.11.3.4 Recording of Minefield Locations. The location of minefields must be
carefully recorded to ensure accurate notification and to facilitate subsequent removal and/or
deactivation. 202
13.11.3.5 Restrictions on Where Naval Mines May Be Placed. Mines may not be

196

Refer to § 5.2.3 (Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other
Protected Persons and Objects).
197

HAGUE VIII art. 3 (“When anchored automatic contact mines are employed, every possible precaution must be
taken for the security of peaceful shipping.”).

198

2007 NWP 1-14M ¶9.2.3 (“International notification of the location of emplaced mines must be made as soon as
military exigencies permit.”); 1997 NWP 9 ¶9.2.3 (same); 1989 NWP 9 ¶9.2.3 (“International notification of thelocation of emplaced armed mines must be made as soon as military exigencies permit.”).
199
For example, HOWARD S. LEVIE, MINE WARFARE AT SEA 146-47 (1992) (“The mining was announced byPresident Nixon on radio and television on the evening of 8 May 1972. Appropriate notification was also given to
all other nations concerned, both by a letter to the President of the United Nations Security Council, and by direct
bilateral diplomatic notification, as well as by notices to mariners. That same day (9 May 1972, in Hanoi), mines
were dropped by aircraft in Haiphong harbor (and in Cam Pha and Hon Gai harbors), three days in advance of themines becoming armed, thus permitting the ships in the harbor three periods of daylight in which to leave if they sodesired.”).
200

HAGUE VIII art. 3 (“The belligerents undertake to do their utmost to render these mines harmless within a limited
time, and, should they cease to be under surveillance, to notify the danger zones as soon as military exigencies
permit, by a notice addressed to ship owners, which must also be communicated to the Governments through the
diplomatic channel.”).

201

Compare § 6.12.7 (Rules for Using Non-Remotely Delivered Anti-Personnel Mines Without Compliant SD/SDA
Mechanisms).
202

2007 NWP 1-14M ¶9.2.3 (“The location of minefields must be carefully recorded to ensure accurate notificationand to facilitate subsequent removal and/or deactivation.”); 1997 NWP 9 ¶9.2.3 (same); 1989 NWP 9 ¶9.2.3 (same).

912

emplaced by belligerents in neutral waters. 203
Naval mines may be employed to channelize neutral shipping, but not in a manner todeny transit passage of international straits or archipelagic sea lanes passage of archipelagic
waters by such shipping. 204
Mining of areas of indefinite extent in international waters is prohibited. Reasonably
limited barred areas may be established by naval mines, provided neutral shipping retains analternate route around or through such an area with reasonable assurance of safety. 205
13.11.3.6 Prohibition Against Mining Off Enemy Coasts and Ports Solely toIntercept Commercial Shipping. Naval mines may not be emplaced off the coasts and ports ofthe enemy with the sole objective of intercepting commercial shipping. 206 Mining for someother purpose would not violate this rule. 207 For example, mines may otherwise be used in thestrategic blockade of enemy ports, coasts, and waterways, even if commercial shipping isincidentally affected. 208
13.11.3.7 Neutralization of Naval Mines. Anchored mines must become harmlessas soon as they have broken their moorings. 209 In particular, it is forbidden to lay anchored203

2007 NWP 1-14M ¶9.2.3 (“Mines may not be emplaced by belligerents in neutral waters.”). Refer to § 15.7
(Neutral Waters).
204

2007 NWP 1-14M ¶9.2.3 (“Naval mines may be employed to channelize neutral shipping, but not in a manner todeny transit passage of international straits or archipelagic sea lanes passage of archipelagic waters by such
shipping.”); 1997 NWP 9 ¶9.2.3 (same); 1989 NWP 9 ¶9.2.3 (“Naval mines may be employed to channelize neutral
shipping, but not in a manner to impede the transit passage of international straits or archipelagic sea lanes passage
of archipelagic waters by such shipping.”).
205

2007 NWP 1-14M ¶9.2.3 (“Mining of areas of indefinite extent in international waters is prohibited. Reasonably
limited barred areas may be established by naval mines, provided neutral shipping retains an alternate route aroundor through such an area with reasonable assurance of safety.”); 1997 NWP 9 ¶9.2.3 (same); 1989 NWP 9 ¶9.2.3(same).
206

HAGUE VIII art. 2 (“It is forbidden to lay automatic contact mines off the coast and ports of the enemy, with thesole object of intercepting commercial shipping.”); 2007 NWP 1-14M ¶9.2.3 (“Naval mines may not be emplaced
off the coasts and ports of the enemy with the sole objective of intercepting commercial shipping, but may otherwise
be employed in the strategic blockade of enemy ports, coasts, and waterways.”); 1997 NWP 9 ¶9.2.3 (same); 1989
NWP 9 ¶9.2.3 (same).

207

WILLIAM H. BOOTHBY, WEAPONS AND THE LAW OF ARMED CONFLICT 283 (2009) (“If there is some otherpurpose to the laying of the mines, their use in these localities is lawful. Thus, if the purpose was to intercept all
shipping, both commercial and military, the laying of the weapons would not breach this provision.”).
208

For example, Richard Nixon, Address to the Nation on the Situation in Southeast Asia, May 8, 1972, 1972
PUBLIC PAPERS OF THE PRESIDENTS 583, 585 (“I therefore concluded that Hanoi must be denied the weapons andsupplies it needs to continue the aggression. In full coordination with the Republic of Vietnam, I have ordered thefollowing measures which are being implemented as I am speaking to you. All entrances to North Vietnamese ports
will be mined to prevent access to these ports and North Vietnamese naval operations from these ports. … Countries
with ships presently in North Vietnamese ports have already been notified that their ships will have three daylightperiods to leave in safety. After that time, the mines will become active and any ships attempting to leave or enter
these ports will do so at their own risk.”).
209

2007 NWP ¶9.2.3 (“Anchored mines must become harmless as soon as they have broken their moorings.”); 1997
NWP 9 ¶9.2.3 (same); 1989 NWP 9 ¶9.2.3 (same).

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automatic contact mines that do not become harmless as soon as they have broken loose fromtheir moorings. 210
Unanchored mines not otherwise affixed or imbedded on the ocean floor must become
harmless within an hour after loss of control over them. 211 In particular, it is forbidden to lay
unanchored (i.e., free-floating) automatic contact mines, except when they are so constructed as
to become harmless one hour at most after the person who laid them ceases to control them. 212
13.11.4 Post-Conflict Naval Demining Obligations. The removal of naval mines at theend of the conflict may be the subject of specific agreements among States. 213
At the close of a war to which Hague VIII is applicable, Parties to Hague VIII have an
obligation to remove the naval mines that they had laid, each State removing its own mines. 214
As regards anchored automatic contact mines laid by one of the belligerents off the coast of theother, their position must be notified to the other party by the State that laid them, and each State
must proceed with the least possible delay to remove the mines in its own waters. 215
13.12 TORPEDOES
It is forbidden to use torpedoes that do not become harmless when they miss theirmark. 216 Such torpedoes may become a hazard to innocent shipping, and therefore torpedoes
must be designed to become harmless when they have missed their mark.
For example, torpedoes have been designed to become harmless upon completion of their
propulsion run, such as by sinking to the bottom.
13.12.1 Torpedoes – Notes on Terminology. In the 19th century, the term “torpedo” was210

HAGUE VIII art. 1 (“It is forbidden … 2. To lay anchored automatic contact mines which do not become harmlessas soon as they have broken loose from their moorings;”).

211

2007 NWP ¶9.2.3 (“Unanchored mines not otherwise affixed or imbedded in the bottom must become harmlesswithin an hour after loss of control over them.”); 1997 NWP 9 ¶9.2.3 (same); 1989 NWP 9 ¶9.2.3 (same).
212

HAGUE VIII art. 1 (“It is forbidden … 1. To lay unanchored automatic contact mines, except when they are soconstructed as to become harmless one hour at most after the person who laid them ceases to control them;”).
213

For example, Protocol to the Agreement on Ending the War and Restoring Peace in Vietnam Concerning theRemoval, Permanent Deactivation, or Destruction of Mines in the Territorial Waters, Ports, Harbors, and Waterwaysof the Democratic Republic of Vietnam, Jan. 27, 1973, 24 U.S.T. 1, art. 1 (“The United States shall clear all themines it has placed in the territorial waters, ports, harbors, and waterways of the Democratic Republic of Vietnam.
This mine clearing operation shall be accomplished by rendering the mines harmless through removal, permanent
deactivation, or destruction.”).
214

HAGUE VIII art. 5 (“At the close of the war, the Contracting Powers undertake to do their utmost to remove themines which they had laid, each Power removing its own mines.”).

215

HAGUE VIII art. 5 (“As regards anchored automatic contact mines laid by one of the belligerents off the coast of
the other, their position must be notified to the other party by the Power which laid them, and each Power must
proceed with the least possible delay to remove the mines in its own waters.”).
216

HAGUE VIII art. 1 (“It is forbidden … 3. To use torpedoes which do not become harmless when they have missed
their mark.”).

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used to refer to any explosive munition that operated by contact against the hull of a ship,including relatively stationary munitions that, in modern parlance, would be called mines. 217
However, by the time of the 1907 Hague VIII Convention, the term “torpedo” was used in themodern sense to refer to munitions that propelled through the water. 218
13.13 DECEPTION BY NAVAL FORCES, INCLUDING THE USE OF ENEMY OR NEUTRAL FLAGS
In general, the rules concerning good faith, ruses, and perfidy also apply to naval
warfare. 219 For example, it would be prohibited for a belligerent warship to convey falsely theappearance of a hospital ship. 220 On the other hand, a variety of deceptions are not prohibited,
including camouflage, deceptive lighting, disguised electronic signatures, and dummy ships,
among others. 221
The rules concerning deception by belligerent warships, especially with respect to theflying of neutral flags or with respect to disguise as merchant vessels, may be considered more
permissive than similar situations in land warfare. 222
13.13.1 Belligerent Warship’s Use of False Colors and Other Disguises. In particular,
according to custom, it is permissible for a belligerent warship to use false colors and to disguise
her outward appearance in other ways in order to deceive an enemy, provided that before going
into action such warship shows her true colors. 223

217

For example, TAMARA MOSER MELIA, DAMN THE TORPEDOES: A SHORT HISTORY OF U.S. NAVAL MINECOUNTERMEASURES, 1777-1991, 3 (1991) (“At high tide on the morning of 5 August Farragut entered the bay.
Farragut’s officers had persuaded him to allow the sloop Brooklyn, hastily rigged with a rudimentary torpedo catcher
on the bowsprit, to lead the advance in place of Farragut’s flagship, Hartford. Contrary to Farragut’s orders,monitor Tecumseh moved west of the red buoy where it struck and detonated one of the newly placed mines. As
Tecumseh quickly went down, Brooklyn suddenly stopped and backed, stalling the fleet’s advance. High in
Hartford’s rigging Farragut watched Tecumseh sink and Brooklyn hesitate. From Hartford’s poop deck Lieutenant
Watson heard the admiral’s exchange with Brooklyn: ‘Farragut hailed again and all that could be distinguished ofher reply was something about torpedoes. ‘Damn the torpedoes!’ he instantly shouted, ordering Hartford’s captain‘Full speed ahead, Drayton.’’”).
218

A. PEARCE HIGGINS, THE HAGUE PEACE CONFERENCES AND OTHER INTERNATIONAL CONFERENCES CONCERNING
THE LAWS AND USAGES OF WAR. TEXT OF CONVENTIONS WITH COMMENTARIES 328 (1909) (“The word ‘torpille’until recently appears to have meant any sort of receptacle containing an explosive intended to operate against thehull of a ship by contact either on or below the water line. Thus, there were torpilles fizes, torpilles mouillees,
torpilles mobiles, and finally torpilles automobiles. It would appear that latterly the word has come to mean only
‘automobile torpedo,’ e.g. in the Convention now under consideration the word ‘mine’ is used when an automatic
torpedo is not implied.”).
219

Refer to § 5.21 (Overview of Good Faith, Perfidy, and Ruses).

220

Refer to § 5.24.2 (Distinctive Emblems of the Geneva Conventions (e.g., Red Cross)); § 7.12.3 (Distinctive
Marking and Other Identification of Hospital Ships and Coastal Rescue Craft).
221

Refer to § 5.25.2 (Examples of Ruses).

222

Refer to § 5.24.1 (Signs, Emblems, or Uniforms of a Neutral or Non-Belligerent State).

223

See, e.g., 2007 NWP 1-14M ¶12.3.1 (“Under the customary international law of naval warfare, it is permissible
for a belligerent warship to fly false colors and disguise its outward appearance in other ways in order to deceive theenemy into believing the vessel is of neutral nationality or is other than a warship. However, it is unlawful for awarship to go into action without first showing her true colors.”); 2007 NWP 1-14M ¶12.5.1 (“Naval surface and915

For example, a belligerent warship may fly enemy or neutral colors and display enemy orneutral markings in order to deceive the enemy into believing the vessel is of enemy or neutral
nationality or is not a warship. 224 Such deceptions may be used in order to facilitate theapproach of enemy vessels or to escape enemy vessels. 225
Warships, however, may not seek to claim falsely the status of vessels that are exempt
from capture or destruction. These vessels include: (1) cartel vessels; (2) hospital ships; (3)vessels charged with religious, non-military scientific, or philanthropic missions; (4) vessels
granted safe conduct; and (5) small coastal fishing vessels and small boats engaged in local
coastal trade. 226

subsurface forces may fly enemy colors and display enemy markings to deceive the enemy. Warships must,however, display their true colors prior to an actual armed engagement.”); 1955 NWIP 10-2 ¶640a (“In particular,
according to custom, it is permissible for a belligerent warship to use false colors and to disguise her outward
appearance in other ways in order to deceive an enemy, provided that prior to going into action such warship shows
her true colors.”).
224

For example, TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 140 footnote 37 (“During World War II theGermans enjoyed a measurable degree of success through the skillful disguise they provided for their armed raiders.
… The tactics of the armed raiders were to reveal their true identity only after having come within close enoughrange to overwhelm the victim (usually armed enemy merchant vessels) by surprise.— One of the most notableactions involving these armed raiders took place in November 1941 between the Australian cruiser Sydney and theGerman armed raider Kormoran. The disguised raider, when approached by the Sydney, identified herself as a
Dutch merchant vessel. Before the Sydney could establish the truth or falsity of her claimed identity the Kormoran
cast off her disguise and opened fire at a distance of 2,000 yards. As a result of the action the Sydney was destroyed
with complete loss of officers and crew.”); LAUTERPACT, II OPPENHEIM’S INTERNATIONAL LAW 510 (§211) (“On theother hand, the following is a perfectly legitimate ruse which is reported to have occurred during the World War: atthe end of October 1914, the German cruiser Emden, hiding her identity by rigging up a dummy fourth funnel andflying the Japanese flag, passed the guardship of the harbor Penang in the Malay States, made no reply to its signals,
came down at full speed on the Russian cruiser Zhemshug, and then, after lowering the Japanese flag and hoisting
the German flag, opened fire and torpedoed her.”).
225

LAUTERPACT, II OPPENHEIM’S INTERNATIONAL LAW 509 (§211) (“As regards the use of a false flag, it is by mostwriters considered perfectly lawful for a man-of-war to use a neutral or enemy flag (1) when chasing an enemy
vessel, (2) when trying to escape, and (3) for the purpose of drawing an enemy vessel into action. On the other
hand, it is universally agreed that, immediately before an attack, a vessel must fly her national flag.”).
226

Refer to § 13.6 (Enemy Vessels Exempt From Capture or Destruction).

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XIV – Air and Space Warfare
Chapter Contents
14.1 Introduction
14.2 Legal Boundaries of Airspace
14.3 Aircraft Status14.4 Status of Aircrew on Military Aircraft
14.5 Measures Short of Attack: Interception, Diversion, and Capture
14.6 Belligerent Control of Aviation in the Immediate Vicinity of Hostilities
14.7 Airspace Zones
14.8 Attacks Against Military Objectives in the Air
14.9 Air Attacks Against Military Objectives on the Ground14.10 International Law And Warfare in Outer Space14.1 INTRODUCTION
This Chapter addresses the international law applicable to U.S. air and space operations
during international armed conflict. This Chapter also discusses the application to air operationsof some of the law of war rules discussed elsewhere in this manual.
Air Force publications have provided discussion of other aspects of public internationallaw relating to air operations, including discussion of rules applicable during peacetime. 1
14.1.1 Application of the 1944 Chicago Convention With Respect to Military Aircraft
and With Respect to States’ Rights During Armed Conflict. The 1944 Chicago Convention
primarily addresses States’ obligations regarding international civil aviation. 2 The 1944 Chicago
Convention does not restrict State action during war. 3 In addition, the 1944 Chicago Convention
generally is not applicable to State aircraft. 4 However, the 1944 Chicago Convention imposes
requirements with respect to entry by State aircraft into foreign airspace and with respect to theissue of due regard for the safety of navigation of civil aircraft. 5
14.1.1.1 1944 Chicago Convention and Freedom of Action of States During
Armed Conflict. According to Article 89 of the 1944 Chicago Convention, “[i]n case of war, theprovisions of this Convention shall not affect the freedom of action of any of the contracting
1

See, e.g., Department of the Air Force, The Judge Advocate General’s School, Air Force Operations and The Law(3rd ed., 2014); 1976 AIR FORCE PAMPHLET 110-31.

21944 CHICAGO CONVENTION preamble (“THEREFORE, the undersigned governments having agreed on certain
principles and arrangements in order that international civil aviation may be developed in a safe and orderly mannerand that international air transport services may be established on the basis of equality of opportunity and operated
soundly and economically; Have accordingly concluded this Convention to that end.”).
3

Refer to § 14.1.1.1 (1944 Chicago Convention and Freedom of Action of States During Armed Conflict).

4

Refer to § 14.1.1.2 (1944 Chicago Convention and Military Aircraft or Other State Aircraft).

5

Refer to § 14.1.1.3 (Requirement for State Consent Prior to Entry by Foreign State Aircraft); § 14.1.1.4 (DueRegard for the Safety of Navigation of Civil Aircraft).

917

States affected, whether as belligerents or as neutrals.” 6 Article 89 may be understood as an
example, reflected in this case in the Convention, of the application of the general principle thatthe law of war, as a body of law specially adapted to the circumstances of armed conflict, is thecontrolling body of law with respect to armed conflict. 7 Under Article 89, a State’s rights under
the law of war (and the law of neutrality) would prevail in the event of conflict with obligations
under the 1944 Chicago Convention.
The provisions of the 1944 Chicago Convention may be relevant during armed conflictinsofar as they articulate restrictions that continue to apply to civil aircraft. For example, neutral
civil aircraft engaged in international navigation would still be required to seek permission froma foreign neutral State before carrying munitions of war or implements of war through thatneutral State’s airspace. 8
The 1944 Chicago Convention’s requirements with respect to entry by State aircraft into
foreign airspace and with respect to the issue of due regard for the safety of navigation of civil
aircraft are discussed below. 9
14.1.1.2 1944 Chicago Convention and Military Aircraft or Other State Aircraft.
The 1944 Chicago Convention provides generally that the Convention “shall be applicable only
to civil aircraft, and shall not be applicable to state aircraft.” 10 State aircraft include aircraft usedin military service. 11 The United States has made statements interpreting this provision of the1944 Chicago Convention. 1261944 CHICAGO CONVENTION art. 89 (“In case of war, the provisions of this Convention shall not affect the freedomof action of any of the contracting States affected, whether as belligerents or as neutrals.”).
7

Refer to § 1.3.2 (The Law of War’s Relationship to Other Bodies of Law).

8

See, e.g., 1944 CHICAGO CONVENTION art. 35(a) (“(a) No munitions of war or implements of war may be carried inor above the territory of a State in aircraft engaged in international navigation, except by permission of such State.
Each State shall determine by regulations what constitutes munitions of war or implements of war for the purposesof this Article, giving due consideration, for the purposes of uniformity, to such recommendations as theInternational Civil Aviation Organization may from time to time make.”).

9Refer to § 14.1.1.3 (Requirement for State Consent Prior to Entry by Foreign State Aircraft); § 14.1.1.4 (DueRegard for the Safety of Navigation of Civil Aircraft).
10

1944 CHICAGO CONVENTION art. 3(a) (“This Convention shall be applicable only to civil aircraft, and shall not beapplicable to state aircraft.”).
11

Refer to § 14.3.1 (State Versus Civil Aircraft).

12

See, e.g., Department of State Airgram CA-8085, Feb. 13, 1964, quoting U.S. Inter-Agency Group on
International Aviation (IGIA) Doc. 88/1/1C, MS, Department of State, file POL 31 U.S., IX WHITEMAN’S DIGEST
430-31 (“The Chicago Convention expressly excludes state aircraft from its scope and thus from the scope of ICAO
[International Civil Aviation Organization] responsibility. The United States intends that its state aircraft will
follow the ICAO procedures set forth in Annex 2 [“Rules of the Air”] to the greatest extent practicable; however, theUnited States considers that state aircraft of any nation are subject to control and regulation exclusively by thatnation (unless operating within airspace over which another nation has sovereignty). With respect to State aircraft,contracting States need not undertake any commitment, and the United States does not undertake any commitment,
to other nations as to the rules and regulations which any specific state aircraft or class of state aircraft will follow,
except when issuing regulations for their state aircraft, that ‘they will have due regard for the safety of navigation ofcivil aircraft’ (Article 3(d), Chicago Convention).”).

918

The 1944 Chicago Convention, however, imposes obligations with respect to entry into
foreign airspace by State aircraft and an obligation with respect to State aircraft and the safety ofnavigation of civil aircraft. 13
14.1.1.3 Requirement for State Consent Prior to Entry by Foreign State Aircraft.
The 1944 Chicago Convention provides that State aircraft (which include military aircraft) are
not permitted to enter the airspace of another State without that State’s consent. 14
During armed conflict, the requirement for a State’s consent to entry into its airspace
would generally continue to apply with respect to neutral military aircraft seeking to enter theairspace of foreign States.
This requirement, however, clearly would not apply to belligerent military aircraft
conducting operations in enemy airspace.
The requirement for a State’s consent to entry into its airspace may be characterized as
applicable with respect to belligerent military aircraft and a neutral State’s airspace; however,even if belligerent military aircraft enter neutral airspace with that neutral State’s consent, suchentry may involve violations of neutrality. 15
There are exceptions to the requirement for State consent to entry into its airspace byState aircraft in certain cases of violations of neutrality. 16
There is an exception during peacetime to the requirement for a State’s consent to entry
into its airspace by foreign State aircraft when such entry is due to distress and there is no
reasonable safe alternative. 17
14.1.1.4 Due Regard for the Safety of Navigation of Civil Aircraft. The 1944
Chicago Convention also provides that “[t]he contracting States undertake, when issuing
regulations for their state aircraft, that they will have due regard for the safety of navigation of

13

Refer to § 14.1.1.3 (Requirement for State Consent Prior to Entry by Foreign State Aircraft); § 14.1.1.4 (DueRegard for the Safety of Navigation of Civil Aircraft).
14

1944 CHICAGO CONVENTION art. 3(c) (“No state aircraft of a contracting State shall fly over the territory of
another State or land thereon without authorization by special agreement or otherwise, and in accordance with theterms thereof.”).
15

Refer to § 15.10.2 (Prohibition on Entry by Belligerent Military Aircraft Into Neutral Airspace).

16

Refer to § 15.4.2 (Belligerent Use of Self-Help When Neutral States Are Unable or Unwilling to Prevent
Violations of Neutrality).
17

U.S. Response to Chinese Legal Views, 2001 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 703,
708 (“—Although we recognize that military aircraft normally require permission to enter the territorial airspace ofanother nation, international law recognizes a right of entry for foreign aircraft, state or civil, in circumstances suchas these when such entry is due to distress and there is no reasonable safe alternative (Footnote 3 below). —Notwithstanding the ordinary rules requiring consent, a peacetime right to enter in distress for military aircraft isconsistent with established international practice. — Such a right is clearly inferable both from analogous situations
in which such a right exists (e.g., for civil aircraft under Article 25 of the Chicago Convention) and from basic
humanitarian considerations.”).

919

civil aircraft.” 18 Assuming that an obligation to exercise due regard would be applicable during
armed conflict, what regard would be due in any particular set of circumstances would depend on
military necessity, and other principles and rules of the law of war, which are specially adapted
to the circumstances of armed conflict. For example, the use of force against enemy civil aircraftthat constitute military objectives and thus may be made the object of attack under the law of war
would not be prohibited. 19
As reflected in Article 89 of the 1944 Chicago Convention, the Convention does not
restrict the freedom of action of States as belligerents or neutrals. 20 Nonetheless, as a practicalmatter, modern air warfare is often conducted in complex airspace, and U.S. forces haveroutinely and intensively coordinated flight operations with national civil aviation authorities.
This coordination is important for a variety of purposes, including ensuring mission
accomplishment, avoiding fratricide and mid-air collisions, and ensuring the safety ofinternational civil aviation. DoD policy has required that, in the event of combat operations
during armed conflict, aircraft commanders, consistent with military necessity, take measures tominimize hazards to civil air or surface traffic. 21
Similarly, under the law of the sea, military operations must be conducted with due
regard for the high seas freedom of overflight in international airspace. 22
14.1.2 Past Attempts to Conclude Treaties About Air Warfare. Initial attempts toconclude agreements on the law of war governing means and methods in the air context weremade during the 1899 and 1907 Hague Peace Conferences, before air power had become asignificant factor in warfare. Extensive efforts were made in 1922-23 to adopt a code of laws
specifically applicable only to air warfare; however, the proposed rules were not ratified by any
State. 23 The United States has not ratified a treaty applicable solely to air operations during
armed conflict, although the United States has ratified treaties that have included specificreferences to aspects of war in the air, such as protection for medical aircraft in the 1949 Geneva

18

1944 CHICAGO CONVENTION art. 3(d) (“The contracting States undertake, when issuing regulations for their state
aircraft, that they will have due regard for the safety of navigation of civil aircraft.”).
19

Refer to § 14.8.3 (Attacks Against Civil Aircraft).

20

Refer to § 14.1.1.1 (1944 Chicago Convention and Freedom of Action of States During Armed Conflict).

21

DOD INSTRUCTION 4540.01, Use of International Airspace by U.S. Military Aircraft and for Missile/Projectile
Firings, ¶4.2.3 (Mar. 28, 2007) (“In the event of combat operations in time of war, armed conflict, national
emergency, situations requiring self-defense, or similar military contingencies, aircraft commanders shall, consistent
with military necessity, take measures to minimize hazards to civil air or surface traffic. Such actions shall be of no
greater extent or duration than required by military necessity.”); DOD DIRECTIVE 4540.1, Use of Airspace by U.S.
Military Aircraft and Firings Over the High Seas, ¶6b (Jan. 13, 1981) (“In the event of combat operations in time ofwar, armed conflict, national emergency, situations requiring self-defense, or similar military contingencies,
departure from the operating procedures in this Directive may be required. In all such instances, however, allpossible precautions shall be taken to minimize any hazard to the safety of other air and surface traffic and departurefrom procedures set forth in this Directive shall be of no greater extent or duration than is required to meet thecontingency.”).
22

Refer to § 13.1.1 (The Law of the Sea During Armed Conflict).

23

Refer to § 19.11 (1923 Hague Air and Radio Rules).

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Conventions. 24
14.2 LEGAL BOUNDARIES OF AIRSPACE
The legal classifications of airspace may be relevant to the application of the law of war
and therefore may affect military operations during armed conflict by:•determining whether airspace is neutral airspace; 25•

determining the authority that a belligerent State has with respect to neutral aircraft in an
area; or•determining the authority that a neutral State has with respect to belligerent aircraft in anarea.

14.2.1 Lateral Boundaries of Airspace. The lateral boundaries of the airspace aredetermined by the status of the land or water directly beneath them.
Airspace is often divided between national airspace (i.e., airspace over a State’s land
territory, internal waters, territorial seas, and archipelagic waters), which is subject to thesovereignty of a State, and international airspace, which is not subject to the sovereignty of any
State. 26 In addition, special rules apply to international straits and archipelagic sea lanes. 27
The division between national airspace and international airspace is similar to thedivision between national waters and international waters. 28 One notable distinction, however,is that aircraft do not enjoy the same right of innocent passage over territorial seas that ships
enjoy through territorial seas. 29
14.2.1.1 National Airspace. Every State has complete and exclusive sovereignty
over the airspace above its territory. 30 In other words, a State has sovereignty over the airspacethat is above land or waters that are subject to its sovereignty. 31 Thus, a State’s national airspace
24

Refer to § 7.14 (Military Medical Aircraft); § 7.19 (Civilian Medical Aircraft).

25

Refer to § 15.10 (Neutral Airspace).

26

Refer to § 14.2.1.1 (National Airspace); § 14.2.1.2 (International Airspace).

27

Refer to § 15.8 (Passage of Belligerent Vessels and Aircraft Through International Straits and Archipelagic Sea
Lanes).
28

Refer to § 13.2.2 (National Waters); § 13.2.3 (International Waters).

29

Refer to § 13.2.2.4 (Innocent Passage of Foreign Vessels Through Territorial Seas and Archipelagic Waters).

30

1944 CHICAGO CONVENTION art. 1 (“The contracting States recognize that every State has complete and exclusive
sovereignty over the airspace above its territory.”). Cf. 49 U.S.C. § 40103 (a)(1) (“The United States Government
has exclusive sovereignty of airspace of the United States.”).
31

See, e.g., 1944 CHICAGO CONVENTION art. 2 (“For the purposes of this Convention the territory of a State shall bedeemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or
mandate of such State.”); Convention on the Territorial Sea and Contiguous Zone, art. 2, Apr. 29, 1958, 516 UNTS
205, 208 (“The sovereignty of a coastal State extends to the air space over the territorial sea as well as to its bed andsubsoil.”). Consider LOS CONVENTION art. 2(2) (“This sovereignty extends to the air space over the territorial sea

921

includes:•

airspace over that State’s land territory, including its internal waters; 32•

airspace over that State’s territorial sea; 33 and•airspace over that State’s archipelagic sea. 34

14.2.1.2 International Airspace. International airspace may be understood as all
airspace that is not subject to the sovereignty of any State, including: 35•

airspace over States’ contiguous zones; 36•

airspace over States’ Exclusive Economic Zones; 37 and•airspace over the high seas. 38

14.2.2 Vertical Boundary Between Airspace and Outer Space. A State’s sovereignty over
its airspace does not extend to outer space, which is not subject to the sovereignty of any State. 39
It is generally accepted that orbiting objects are in outer space. 40 The United States has
as well as to its bed and subsoil.”); LOS CONVENTION art. 49(2) (“This sovereignty extends to the air space over thearchipelagic waters, as well as to their bed and subsoil, and the resources contained therein.”).
32

Refer to § 13.2.2.1 (Internal Waters).

33

Refer to § 13.2.2.2 (Territorial Seas).

34

Refer to § 13.2.2.3 (Archipelagic Waters).

35

See, e.g., DOD DIRECTIVE 4500.54E, DoD Foreign Clearance Program (FCP), Glossary (Dec. 28, 2009)(“international airspace. All airspace seaward of coastal states’ national airspace, including airspace overcontiguous zones, exclusive economic zones, and the high seas. International airspace is open to all aircraft of allnations. Military aircraft may operate in such areas free of interference or control by the coastal state.”).
36

Refer to § 13.2.3.2 (Contiguous Zones).

37

Refer to § 13.2.3.3 (Exclusive Economic Zones (EEZs)).

38

Refer to § 13.2.3.4 (High Seas).

39

Refer to § 14.10.1 (Classification of Outer Space).

40

See, e.g., Department of the Air Force, The Judge Advocate General’s School, Air Force Operations and The
Law, 85 (3rd ed., 2014) (“According to this approach, the upper limit to airspace is above the highest altitude atwhich an aircraft can fly and below the lowest possible perigee of an earth satellite in orbit. The result is thatanything in orbit or beyond can safely be regarded as being in outer space.”); 2007 NWP 1-14M ¶¶1.10, 2.11.1(“The upper limit of airspace subject to national jurisdiction has not been authoritatively defined by internationallaw. International practice has established that airspace terminates at some point below the point at which artificial
satellites can be placed in orbit without free-falling to earth. Outer space begins at that undefined point. …
Although there is no legally defined boundary between the upper limit of national airspace and the lower limit ofouter space, international law recognizes freedom of transit by man-made space objects at earth orbiting altitude andbeyond. A generally acceptable definition is that outer space begins at the undefined upper limit of the earth’s
airspace and extends to infinity.”); 2006 AUSTRALIAN MANUAL ¶8-2 (“While views differ as to the precise verticaland horizontal extent of airspace, for practical purposes, it can be said that the upper limit to a state’s rights inairspace is above the highest altitude at which an aircraft can fly and below the lowest possible perigee of an earth922expressed the view that there is no legal or practical need to delimit or otherwise define a
specific boundary between airspace and outer space. 41
14.2.3 Flight Information Regions. Flight Information Regions (FIRs) are areas ofairspace allocated by the International Civil Aviation Organization (ICAO). Every portion of
airspace belongs to a defined flight information region. Within each flight information region, aflight information service and an alerting service are provided by the national authorities
responsible for air traffic control. These services are the most basic levels of air traffic service,and they provide information to aviators necessary for the safe and efficient conduct of flights. 42
A flight information region normally encompasses substantial areas of international
airspace and does not necessarily reflect international or national airspace borders. 43

satellite in orbit. The result is that anything in orbit or beyond can safely be regarded as in outer space.”); 2004 UK
MANUAL ¶12.13 (“Views differ as to the precise vertical and horizontal extent of airspace. For practical purposes, it
can be said that the upper limit to a state’s rights in airspace is above the highest altitude of what an aircraft can fly
and below the lowest possible perigee of an earth satellite in orbit. The result is that anything in orbit or beyond cansafely be regarded as in outer space.”).
41

Kenneth Hodgkins, U.S. Advisor to the United Nations, Legal Subcommittee (LSC) of the United Nations
Committee on the Peaceful Uses of Outer Space (COPUOS) 719th Meeting [unedited transcript] (Apr. 8, 2005) (“Aswe have stated on previous occasions, the United States is firmly of the view that there is no need to seek a legal
definition or delimitation for outer space. The current framework has presented no practical difficulties and, indeed,
activities in outer space are flourishing. Given this situation, an attempt to define or delimit outer space would be an
unnecessary theoretical exercise that could potentially complicate existing activities and that might not be able toanticipate continuing technological developments. The current framework has served us well and we should
continue to operate under this framework until there is a demonstrated need and a practical basis for developing adefinition or delimitation.”); Stephen Mathias, U.S. Advisor to the United Nations, U.S. Statements on Specific
Agenda Items before the Legal Subcommittee of the Committee on the Peaceful Uses of Outer Space (2003) (“At thistime, the United States remains convinced that there is no need to seek a legal definition of delimitation for outerspace. Activities in outer space and in airspace are flourishing and have raised no practical need for a definition orlimitation between the spheres. In the absence of a real need, any attempt to develop a definition would be illadvised as there would be no experience to call upon in agreeing upon any particular definition or delimitation.”);U.S. Statement before the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer
Space regarding the Definition and Delimitation of Outer Space and the Character and Utilization of theGeostationary Orbit, Apr. 4, 2001, 2001 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 721 (“Ourposition continues to be that defining or delimiting outer space is not necessary. No legal or practical problems havearisen in the absence of such a definition. On the contrary, the differing legal regimes applicable in respect ofairspace and outer space have operated well in their respective spheres. The lack of a definition or delimitation ofouter space has not impeded the development of activities in either sphere. … It would be dangerous for the Legal
Subcommittee to agree to an artificial line between air space and outer space, when it cannot predict theconsequences of such a line.”).
42

Information Provided to U.S. Embassies in Rangoon and New Delhi Regarding Transit Through Flight
Information Regions and International Airspace, May 2007, 2007 DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 635, 636 (“A Flight Information Region, or FIR, is simply an area over which a civil aviation
authority has responsibility for provision of flight information services. FIRs are allocated to coastal states by theInternational Civil Aviation Organization (ICAO) to facilitate the safety of civil aviation. Some FIRs encompass
both national and international airspace. Civil aviation authorities may confuse responsibility for and authority overcivil aviation in a FIR for sovereignty over the area.”).
43

DOD DIRECTIVE 4500.54E, DoD Foreign Clearance Program (FCP), Glossary (Dec. 28, 2009) (“flightinformation region. An airspace of defined dimensions within which flight information service and alerting service
are provided. A flight information region normally encompasses substantial areas of international airspace and does

923

Under Article 3 of the 1944 Chicago Convention, flight information region rules do not
apply to State aircraft, including military aircraft, and military aircraft are free to operate ininternational airspace without the consent of or notice to coastal State authorities. 44 Thus, forexample, a flight information region could not limit the rights of belligerent military aircraft
during armed conflict.
14.2.4 Air Defense Identification Zone (ADIZ). In general terms, an ADIZ is an area ofairspace over land or water in which the ready identification, location, and control of aircraft
may be required in the interests of national security. 45 The United States has established
ADIZs. 46
14.2.4.1 Establishment of an ADIZ. The legal basis for a State to establish an
ADIZ is its right to establish conditions and procedures for entry into its national airspace. 47

not reflect international or national airspace borders. Responsibility for flight information region management is not
the same as territorial authority; therefore, state aircraft are not to request aircraft diplomatic clearance to enter aflight information region if the aircraft will not enter national airspace. The International Civil Aviation
Organization establishes flight information regions in accordance with the Convention on International Civil
Aviation. Civil aviation authorities of designated nations administer them pursuant to International Civil Aviation
Organization authority, rules, and procedures.”).
44

Information Provided to U.S. Embassies in Rangoon and New Delhi Regarding Transit Through Flight
Information Regions and International Airspace, May 2007, 2007 DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 635-36 (“A coastal state may establish a FIR in international airspace consistent with therequirements of the 1944 Convention on International Civil Aviation (Chicago Convention), to which your country
is a party; however, under Article 3 of that convention, FIR rules do not apply to state aircraft, including military
aircraft. State aircraft, including military aircraft, operating in international airspace (whether within or outside aFIR) are free to operate without the consent of or notice to coastal state authorities and are not subject to thejurisdiction or control of the ATC authorities of those states. No notice to, clearance from, or approval of a coastal
state is required to exercise such freedoms of navigation and overflight. The United States reaffirms its navigationand overflight rights in international airspace.”).
45

14 CODE OF FEDERAL REGULATIONS § 99.3 (“Air defense identification zone (ADIZ) means an area of airspaceover land or water in which the ready identification, location, and control of all aircraft (except for Department of
Defense and law enforcement aircraft) is required in the interest of national security.”).

46

See, e.g., Ian E. Rinehart & Bart Elias, China’s Air Defense Identification Zone (ADIZ), 2 (Congressional
Research Service, Jan. 30, 2015) (“In 1948, the U.S. Air Force designated several offshore areas as ‘active defense
areas’ or ‘defense zones.’ From these, the first ADIZs in the world were established in 1950, under an Executive
order directing the Secretary of Commerce to exercise security control over aircraft. Various defense zones wereredesignated as ADIZs (over Atlantic, Pacific, and Gulf of Mexico waters[)] the Alaska ADIZ, the Guam ADIZ, andthe Hawaii ADIZ, are codified in Title 14, Part 99, of the Code of Federal Regulations, along with the procedural
requirements for flights operating in these designated areas. They are predominantly located over water andtypically do not extend to the shore, leaving a narrow strip of sovereign airspace parallel to the coastline that is notwithin the ADIZ.”); 1955 NWIP 10-2 ¶422c endnote 16 (“It is apparent that the potential threat to the security ofstates presented by aircraft is considerably greater than the potential threat presented by vessels. However, there has
not yet emerged a recognized practice of ‘contiguous air space zones,’ analogous to contiguous zones established on
the high seas (see paragraph 413d), enabling states to exercise certain legal controls over aircraft flying outside
territorial air space. The present system of Air Defense Identification Zones (ADIZ) employed by the United States
extends to the air space above the open sea, and is limited to the purpose of identifying aircraft.”).
47

See, e.g., 2007 NWP 1-14M ¶2.7.2.3 (“International law does not prohibit nations from establishing air defense
identification zones (ADIZ) in the international airspace adjacent to their territorial airspace. The legal basis for
ADIZ regulations is the right of a nation to establish reasonable conditions of entry into its territory. Accordingly,

924

The establishment of an ADIZ by a State does not constitute a claim to international
airspace as its own. The ADIZ is merely a reference point for the initiation of identification
procedures for aircraft on a course to enter national airspace. 48
Because the establishment of an ADIZ by a State that extends to international airspacedoes not confer sovereignty over that airspace, the ADIZ, and its implementing regulations andoperational practices, must respect the rights of other States to use international airspace.
The United States does not recognize the right of a State to apply its ADIZ laws andregulations to foreign aircraft, either civil aircraft or State aircraft, if those aircraft do not intend
to enter the national airspace of that State. 49
14.2.4.2 Failure to Comply With Identification Requirements. Failure by anaircraft to identify itself once it enters an ADIZ does not, of itself, entitle the declaring State touse force against that aircraft, although it may subject the aircraft to interception. 50 Dependingon the circumstances, a persistent failure to comply with instructions may be evidence that theaircraft, in fact, poses a threat to the declaring State. 51
Establishment of an ADIZ, like other warning zones, does not relieve the proclaiming
State of its obligations under applicable international law, such as its obligation under the law of
war to refrain from attacking aircraft that do not constitute lawful military objectives, or its
obligation to refrain from attacks against civil aircraft under peacetime international law. 52

an aircraft approaching national airspace can be required to identify itself while in international airspace as acondition of entry approval.”); 1976 AIR FORCE PAMPHLET 110-31 ¶2-1g (“Civil aircraft on a course to penetrate
United States airspace are required to identify themselves upon entry into the [Air Defense Identification] zone.
This requirement is based on the right of every state to establish conditions and procedures for entry into its
airspace.”). See also 1944 CHICAGO CONVENTION art. 11 (“Subject to the provisions of this Convention, the laws
and regulations of a contracting State relating to the admission to or departure from its territory of aircraft engaged
in international air navigation, or to the operation and navigation of such aircraft while within its territory, shall beapplied to the aircraft of all contracting States without distinction as to nationality, and shall be complied with bysuch aircraft upon entering or departing from or while within the territory of that State.”).
48

1976 AIR FORCE PAMPHLET 110-31 ¶2-1g (“An air defense identification zone does not constitute a claim ofsovereignty over airspace above the high seas. Such a zone is merely a reference point for initiation of identification
procedures for aircraft on a course to penetrate national airspace.”).
49

See, e.g., John Kerry, Secretary of State, Press Statement (Nov. 23, 2013) (“We don’t support efforts by any State
to apply its ADIZ procedures to foreign aircraft not intending to enter its national airspace. The United States does
not apply its ADIZ procedures to foreign aircraft not intending to enter U.S. national airspace.”); U.S. Response to
Chinese Legal Views, 2001 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 703, 707 (“The U.S. does
not recognize the right of a coastal nation to apply its ADIZ procedures to foreign aircraft not intending to enter
national airspace, and does not apply its ADIZ procedures to foreign aircraft not intending to enter U.S. airspace.”).
50

1976 AIR FORCE PAMPHLET 110-31 ¶2-1g (“State aircraft on a course to penetrate United States airspace may berequested to identify themselves, and failing voluntary identification may be identified by intercept aircraft orotherwise as appropriate.”).
51

Compare § 14.5.2.1 (Failure to Comply by Civil Aircraft).

52

Refer to § 13.9.2 (Use of Zones to Warn Vessels or Aircraft – War, Operational, Warning, and Safety Zones);§ 14.8.3.1 (Protection of Civil Aircraft in Peacetime).

925

14.3 AIRCRAFT STATUS
14.3.1 State Versus Civil Aircraft. The 1944 Chicago Convention distinguishes between
State aircraft and civil aircraft. 53
Aircraft used in military, customs, and police services are deemed to be State aircraft forthe purposes of the 1944 Chicago Convention. 54 More generally, State aircraft may beunderstood to include other aircraft operated by a government for sovereign, non-commercial
purposes. 55 In U.S. practice, DoD contract aircraft have not qualified as State aircraft, unlessspecifically designated as such by the United States. 56
The distinction between State aircraft and civil aircraft may be important for a variety ofreasons. For example, the 1944 Chicago Convention generally does not apply to State aircraft. 57
In addition, enemy State aircraft are subject to seizure as war booty. 58 As another example,
neutral State aircraft are not subject to visit and search or diversion. 59 And, although notnecessary for an aircraft to constitute a military objective, the status of an aircraft as State aircraft

53

1944 CHICAGO CONVENTION art. 3(a) (“This Convention shall be applicable only to civil aircraft, and shall not beapplicable to state aircraft.”). Consider Commission of Jurists to Consider and Report Upon the Revision of theRules of Warfare, General Report, Part II: Rules of Aërial Warfare, art. 2, Feb. 19, 1923, reprinted in 32 AJIL
SUPPLEMENT: OFFICIAL DOCUMENTS 12, 12 (1938) (“The following shall be deemed to be public aircraft: (a)Military aircraft. (b) Non-military aircraft exclusively employed in the public service. All other aircraft shall bedeemed to be private aircraft.”).
54

1944 CHICAGO CONVENTION art. 3(b) (“Aircraft used in military, customs and police services shall be deemed to
be state aircraft.”).
55

DOD DIRECTIVE 4500.54E, DoD Foreign Clearance Program (FCP), Glossary (Dec. 28, 2009) (“state aircraft.
Aircraft, including U.S. military aircraft, operated by a government for sovereign, non-commercial purposes.”).
56

See, e.g., Secretary of State Cable 22631, USG Policy Regarding Status of DOD Commercial Contract Aircraft(Mar. 10, 2010) (The U.S. Government “has consistently taken the position that Department of Defense (DoD)commercial contract aircraft and other USG contract aircraft are not state aircraft unless the particular aircraft is
specifically designated as such by the USG. The normal practice of the USG is not to designate contract aircraft as
state aircraft.”); 2007 NWP 1-14M ¶2.4.3 (“Auxiliary aircraft are State aircraft, other than military aircraft, that are
owned by or under the exclusive control of the armed forces. Civilian owned and operated aircraft, the full capacityof which has been contracted by the DOD and used in the military service of the United States, qualify as ‘auxiliary
aircraft’ if they are designated as ‘State aircraft’ by the United States. In those circumstances they too enjoy
sovereign immunity from foreign search and inspection. As a matter of policy, however, the United States normallydoes not designate Air Mobility Command-charter aircraft as State aircraft.”); Department of the Army, Office of
the Judge Advocate General, International and Operations Law: Payment of Fees Charged to State Aircraft, 21
THE REPORTER 19, 20 (June 1994) (“The US government consistently has taken the position that Department of
Defense contract aircraft do not qualify as state aircraft unless the particular aircraft is specifically designated assuch by the US government. Although many SOFAs, base rights, and other agreements grant DoD contract aircraft
the same rights of access, exit, and freedom from landing fees and similar charges enjoyed by US military aircraft,such agreements do not have the effect of declaring DoD contract aircraft to be military aircraft or any form of state
aircraft.”).
57

Refer to § 14.1.1.2 (1944 Chicago Convention and Military Aircraft or Other State Aircraft).

58

Refer to § 14.5.3 (Capture of Aircraft and Goods on Board Aircraft).

59

Refer to § 15.13 (Belligerent Right of Visit and Search of Merchant Vessels and Civil Aircraft); 14.5.2 (Diversionof Aircraft).

926

may also be an important factor in determining that an aircraft constitutes a military objective. 60
14.3.2 Nationality of Aircraft. State aircraft possess the nationality of the State that
operates them. Civil aircraft possess the nationality of the State in which they are registered. 61
The nationality of an aircraft may be important in assessing whether it constitutes anenemy or neutral aircraft. 62
14.3.3 Status of Military Aircraft. Military aircraft may be understood as aircraft that aredesignated as such by a State that operates them. The United States has not ratified a treaty that
requires certain qualifications before an aircraft may be designated as military aircraft.
In general, military aircraft are operated by commissioned units of the armed forces of aState, bearing the military markings of that State, and commanded by a member of the armed
forces of that State.
In addition to combat aircraft such as fighters and bombers, other types of aircraft
operated by the armed forces of a State may also be designated as military aircraft, such astransport, reconnaissance, and meteorological aircraft. Unmanned aircraft, i.e., aircraft that are
remotely piloted or controlled, may also be designated as military aircraft.
14.3.3.1 Military Aircraft – Rights and Liabilities. Of all aircraft, only military
aircraft are entitled to engage in attacks in armed conflict. 63 Likewise, during armed conflict,enemy military aircraft generally constitute military objectives and, thus, may be made the objectof attack, whether in the air or on the ground. 64 There may be exceptions to the general rule thatenemy military aircraft are liable to being made the object of attack, such as in the case of enemy
military medical aircraft or enemy military aircraft that have surrendered. 65

60

Refer to § 14.8.3 (Attacks Against Civil Aircraft); § 5.6 (Military Objectives).

61

1944 CHICAGO CONVENTION art. 17 (“Aircraft have the nationality of the State in which they are registered.”).

62

Refer to § 15.14 (Acquisition of Enemy Character by Neutral-Flagged Merchant Vessels and Neutral-Marked
Civil Aircraft).
63

See, e.g., 2013 GERMAN MANUAL ¶1103 (“Only military aircraft are entitled to exercise belligerent rights and use
military force in fighting military objectives of an adversary (14 13, 16 para.1).”); 2006 AUSTRALIAN MANUAL ¶814 (“[O]nly military aircraft can exercise the combat rights of a belligerent. Examples of such rights include
attacking military objectives and overflying enemy territory.”); 2004 UK MANUAL ¶12.34 (“Only military aircraft
may carry out attacks.”); 2001 CANADIAN MANUAL ¶704(3) (“Civil aircraft and state aircraft that are not military
aircraft (for example, police or customs officials) may not engage in hostilities ... .”); 1976 AIR FORCE PAMPHLET
110-31 ¶2-6d (“Only military aircraft may exercise such rights of belligerents as attacking and destroying military
objectives or transporting troops in the adversary’s national airspace or behind its lines.”). Consider Commission ofJurists to Consider and Report Upon the Revision of the Rules of Warfare, General Report, Part II: Rules of Aërial
Warfare, art. 16, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 12, 19 (1938) (“Noaircraft other than a belligerent military aircraft shall engage in hostilities in any form.”).
64

Refer to § 5.6.4.1 (Military Equipment and Bases).

65

Refer to § 7.14 (Military Medical Aircraft); § 14.8.2 (Protection of Persons Who Surrender or Who Are Otherwise
Hors De Combat on Board Enemy Aircraft).

927

Belligerent military aircraft generally may not enter neutral airspace. 66
As State aircraft, military aircraft, like warships, are customarily accorded certain
privileges and immunities by friendly foreign States. 67
14.3.3.2 Military Aircraft – Markings. Military aircraft are customarily marked tosignify both their nationality and military character. 68 Markings may help distinguish friend
from foe and help preclude misidentification of aircraft as neutral or as civil. 69 However,circumstances may exist where such markings are superfluous. 70
A single marking may be used to signify both an aircraft’s nationality and its militarycharacter. 71

66

Refer to § 15.10.2 (Prohibition on Entry by Belligerent Military Aircraft Into Neutral Airspace).

67

DOD DIRECTIVE 4500.54E, DoD Foreign Clearance Program (FCP), ¶4 (Dec. 28, 2009) (“b. Consistent with
U.S. Government policy, DoD aircraft shall not be subject to air navigation, overflight, or similar fees for transit
through the national airspace of another country or through Flight Information Regions in international airspace.
This policy is based upon the unique status of state aircraft, including U.S. military aircraft, in international law as
instruments of a sovereign, and is consistent with international custom and practice. … c. DoD aircraft shall not be
subject to search, seizure, and inspection (including customs, safety, and agriculture inspections) or any otherexercise of jurisdiction by a foreign government over such aircraft, or the personnel, equipment, or cargo on board.
DoD aircraft commanders shall not consent to the exercise of jurisdiction by foreign government authorities over
U.S. military aircraft, except at the direction of the appropriate DoD Component headquarters.”). Consider
Convention Relating to the Regulation of Aerial Navigation, art. 32, Oct. 13, 1919, 11 LNTS 173, 195 (“No military
aircraft of a contracting State shall fly over the territory of another contracting State nor land thereon without special
authorisation. In case of such authorisation the military aircraft shall enjoy, in principle, in the absence of special
stipulation, the privileges which are customarily accorded to foreign ships of war. A military aircraft which isforced to land or which is requested or summoned to land shall by reason thereof acquire no right to the privileges
referred to in the above paragraph.”); John Cobb Cooper, A Study on the Legal Status of Aircraft, in IVAN A.
VLASIC, EXPLORATIONS IN AEROSPACE LAW 205, 243 (1968) (“It is felt that the rule stated in the Paris Convention
that aircraft engaged in military services should, in the absence of stipulation to the contrary, be given the privilegesof foreign warships when in national port is sound and may be considered as still part of international air law eventhough not restated in the Chicago Convention.”).
68

Consider Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General
Report, Part II: Rules of Aërial Warfare, art. 3, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIALDOCUMENTS 12, 13 (1938) (“A military aircraft shall bear an external mark indicating its nationality and militarycharacter.”).
69

For example, SPAIGHT, AIR POWER AND WAR RIGHTS 82 (“Again and again one finds the fighting airmen of
1914-18 stating in their memoirs or diaries that they have been saved from attacking a friend or have been put on
guard against a foe by seeing the distinguishing marks on the wings of the machines.”).
70

1976 AIR FORCE PAMPHLET 110-31 ¶7-4 (“Military aircraft, as entities of combat in aerial warfare, are also
required to be marked with appropriate signs of their nationality and military character. However, circumstances
may exist where such markings are superfluous and are not required. An example is when no other aircraft except
those belonging to a single state are flown. Such markings serve to distinguish friend from foe and serve to preclude
misidentification as neutral or civilian aircraft. Accordingly, military aircraft may not bear markings of the enemy
or markings of neutral aircraft while engaging in combat. Combatant markings should be prominently affixed to theexterior aircraft surfaces and be recognizable at a reasonable distance from any direction.”).
71

For example, 2004 UK MANUAL ¶12.10.4 (“In most air forces, the same marking indicates both nationality andmilitary character, for example, the Royal Air Force roundel.”).

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14.3.3.3 Military Aircraft – Command and Crew. Military aircraft arecommanded by members of the armed forces of that State. 72 The crew, however, may include
civilian members, and such personnel are expressly entitled to POW status under the GPW. 73
14.4 STATUS OF AIRCREW ON MILITARY AIRCRAFT
14.4.1 Military Aircrew. Aircrew who are members of the armed forces of a State havethe rights, duties, and liabilities of combatants. 74 For example, they are entitled to POW status if
they fall into the power of the enemy during international armed conflict, and they have legal
immunity from domestic law for acts done under military authority and in accordance with thelaw of war.
14.4.1.1 Wearing of Uniform by Military Aircrew. Military aircrew are required
to distinguish themselves from the civilian population in the same manner as other combatants. 75
The wearing of flying clothing distinctive to the armed forces satisfies this requirement. In
particular, military aircrew should wear military uniforms (including distinctive flying clothing)in case they become separated from the aircraft. 76
14.4.2 Civilian Members of Military Aircrew and Other Persons Authorized to
Accompany the Armed Forces. Civilian members of military aircrew fall into the category of
persons authorized to accompany the armed forces. 77 Other civilians who are present on military
aircraft or who support the operations of military aircraft may also fall into the category of
persons authorized to accompany the armed forces, provided they have received such
authorization.
As persons authorized to accompany the armed forces, civilian members of military
aircrews are entitled to POW status if they fall into the power of the enemy during internationalarmed conflict, and they have legal immunity from the enemy’s domestic law for providing
authorized support services to the armed forces. Civilians who work in or on military objectives,
such as military aircraft, assume a certain risk of harm from attacks against military objectives. 78
14.4.3 Downed Aircrew. There are a number of law of war issues related to downed
72

Consider Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General
Report, Part II: Rules of Aërial Warfare, art. 14, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIALDOCUMENTS 12, 18 (1938) (“A military aircraft shall be under the command of a person duly commissioned orenlisted in the military service of the state;”).
73

Refer to § 4.15 (Persons Authorized to Accompany the Armed Forces).

74

Refer to § 4.5 (Armed Forces of a State); § 4.4 (Rights, Duties, and Liabilities of Combatants).

75

Refer to § 5.14.5 (Carrying Arms Openly and Wearing of Distinctive Emblems by the Armed Forces toDistinguish Themselves From the Civilian Population).
76

Consider Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General
Report, Part II: Rules of Aërial Warfare, art. 15, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIALDOCUMENTS 12, 18 (1938) (“Members of the crew of a military aircraft shall wear a fixed distinctive emblem ofsuch character as to be recognizable at a distance in case they become separated from their aircraft.”).
77

Refer to § 4.15 (Persons Authorized to Accompany the Armed Forces).

78

Refer to § 5.12.3.3 (Civilian Workers Who Support Military Operations In or On Military Objectives).

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aircrew.
14.4.3.1 Protection of Aircrew While Parachuting From an Aircraft in Distress.
In general, aircrew parachuting from an aircraft in distress are treated as though they are hors decombat, i.e., they must not be made the object of attack. 79 Aircrew parachuting from an aircraft
in distress who engage in hostile acts or attempt to evade capture, either while descending or
after reaching the ground, forfeit any protection from being made the object of attack. 80
14.4.3.2 Protection of Downed Aircrew at Sea. Downed aircrew at sea are
generally to be regarded as shipwrecked, as the definition of shipwrecked includes forced
landings at sea by or from aircraft. 81 As shipwrecked persons, they must not be made the objectof attack, and there are obligations to search for and collect them. 82
14.4.3.3 Rescue of Downed Aircrew. The rescue of downed aircrew to prevent
their capture by the adversary is generally regarded as a combat activity that enemy militaryforces may legitimately oppose. 83 Medical personnel, ships, or aircraft engaged in the rescue ofdowned aircrew must not hamper or interfere with the efforts of opposing military forces tocapture downed aircrew or they will forfeit protection from being made the object of attack as aresult. 84
The United States has understood the prohibition against the use of riot control agents asa method of warfare not to prohibit the use of riot control agents to rescue downed aircrew incertain circumstances. 85
14.4.3.4 Downed Aircrew – Evasion From, and Capture by, the Enemy. Downed
aircrew may use enemy uniforms to evade capture by the enemy, but, in some cases, such use
may risk liability to treatment as a spy. 86 Likewise, downed aircrew may use civilian clothes toevade capture by the enemy. 87
If downed aircrew fall into the power of the enemy during international armed conflict,
79

Refer to § 5.9.5 (Persons Parachuting From an Aircraft in Distress).

80

Refer to § 5.9.5.1 (No Hostile Acts or Attempts to Evade Capture).

81

Refer to § 7.3.1.2 (Shipwrecked).

82

Refer to § 7.3.3 (Meaning of “Respect and Protection” of the Wounded, Sick, and Shipwrecked); § 7.4.1 (GWSSea Obligation Regarding the Search, Collection, and Affirmative Protection of the Wounded, Sick, Shipwrecked,
and Dead).
83

2004 UK MANUAL ¶12.70.1 (“The use of, for example, military assets to rescue aircrew who have been ‘downed’on territory under the control of the enemy is a combat activity. It is therefore legitimate for an enemy in suchcircumstances to attack the rescuers or by some other means to impede or prevent the rescue activity.”).

84

Refer to § 4.9.2.3 (Exclusively Engaged in Humanitarian Duties); § 7.12.2.3 (No Hampering the Movement of
Combatants ); § 7.14.2.2 (Search, Rescue, or Other Recovery Excluded).
85

Refer to § 6.16.2 (Prohibition on Use of Riot Control Agents as a Method of Warfare).

86

Refer to § 5.23.1.4 (Use of Enemy Uniforms to Evade Capture or Escape).

87

Refer to § 5.25.3 (Examples of Other Deceptions That Are Not Prohibited). Compare § 9.25.2.2 (OnlyDisciplinary Punishments in Respect of an Act of Escape).

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they are entitled to POW status. 88 Downed aircrew remain entitled to POW status even if they
unsuccessfully attempt to escape capture by enemy forces or if they attack enemy forces uponreaching the ground. As POWs, downed aircrew are entitled to protection from violence fromthe civilian population and others. 89
14.4.3.5 Downed Aircrew in Neutral Territory. Military aircrew forced to land inneutral territory due to navigational failure, combat damage, mechanical failure, or otheremergencies are subject to internment by the neutral State for the duration of the conflict. 90
14.5 MEASURES SHORT OF ATTACK: INTERCEPTION, DIVERSION, AND CAPTURE
14.5.1 Interception. During armed conflict, a party may choose to intercept an aircraft
through a variety of ways, including closing to visual range or to a distance where the target
aircraft is within the range of weapons systems. Interception of civil aircraft that are not military
objectives should be exercised with due regard for the safety of such aircraft. 91
14.5.1.1 Purposes for Conducting Interception. Interception may have a varietyof purposes, including, for example:•

to assist in the obligation to distinguish between military objectives and civilian objects
and the obligation to protect the civilian population, 92 such as byo warning a civil aircraft to refrain from entering an area of active operations; oro helping identify whether the aircraft constitutes a military objective;•

as part of the belligerent right of visit and search, including the belligerent right toenforce a blockade, 93 such as byo facilitating identification of an aircraft (e.g., enemy or neutral);o forcing an aircraft to divert and land at a specific airfield for search or capture; or•to be in a position to attack the aircraft.

14.5.1.2 Airspace Where Interception May Be Conducted. As a general rule,
belligerent military aircraft may not intercept aircraft in neutral airspace. 94

88

Refer to § 9.3 (POW Status).

89

Refer to § 9.5.2.2 (Protection Against Violence by the Civilian Population or Others).

90

Refer to § 15.16 (Belligerent Forces Taking Refuge in Neutral Territory).

91

Refer to § 14.1.1.4 (Due Regard for the Safety of Navigation of Civil Aircraft).

92

Refer to § 2.5 (Distinction).

93

Refer to § 15.13 (Belligerent Right of Visit and Search of Merchant Vessels and Civil Aircraft).

94

Refer to § 15.10 (Neutral Airspace).

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In addition, interception may not be conducted during passage through neutralinternational straits or neutral archipelagic sea lanes. 95
14.5.2 Diversion of Aircraft. Diversion and search of civil aircraft may be conducted
outside neutral airspace as part of the belligerent right of visit and search (e.g., to help determine
whether aircraft are liable to capture for carriage of contraband or for breach of blockade). 96
Interference with civil aircraft of neutral States must be justified by military necessity.
If, upon interception outside of neutral airspace, reasonable grounds exist for suspectingthat the intercepted civil aircraft, its cargo, or its personnel are liable to capture, 97 then it may bedirected to proceed to a belligerent airfield that is both reasonably accessible and suitable for thetype of aircraft involved for visit and search. 98 Should such an airfield not be available, theintercepted civil aircraft may be diverted from its declared destination. 99
Certain aircraft are exempt from the belligerent right to divert aircraft for purposes ofvisit and search: (1) neutral military aircraft; and (2) neutral civil aircraft accompanied byneutral military aircraft of the same nationality. 100
14.5.2.1 Failure to Comply by Civil Aircraft. An enemy civil aircraft thatpersistently fails to comply with military instructions becomes a military objective subject toattack. 101
Failure to comply with military instructions from intercepting aircraft does not in itself
render a neutral or non-belligerent civil aircraft a military objective. However, it may provide
strong evidence that the civil aircraft is in fact being used for a military or hostile purpose.
14.5.3 Capture of Aircraft and Goods on Board Aircraft. Enemy civil aircraft and goods

95

Refer to § 15.8 (Passage of Belligerent Vessels and Aircraft Through International Straits and Archipelagic Sea
Lanes).
96

Refer to § 15.13.4.3 (Visit and Search of Civil Aircraft by Military Aircraft).

97

Refer to § 15.15.1 (Grounds for the Capture of Neutral Vessels and Aircraft).

98

Consider Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General
Report, Part II: Rules of Aërial Warfare, art. 50, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIALDOCUMENTS 12, 44 (1938) (“Belligerent military aircraft have the right to order public non-military and private
aircraft to alight in or proceed for visit and search to a suitable locality reasonably accessible. Refusal, afterwarning, to obey such orders to alight or to proceed to such a locality for examination exposes an aircraft to the riskof being fired upon.”).
99

2007 NWP 1-14M ¶7.6.3 (“If, upon interception outside of neutral airspace, reasonable grounds exist forsuspecting that the intercepted civilian aircraft is carrying contraband cargo or that, despite its neutral markings, it is,
in fact, enemy, it may be directed to proceed for visit and search to a belligerent airfield that is both reasonably
accessible and suitable for the type of aircraft involved. Should such an airfield not be available, the intercepted
civilian aircraft may be diverted from its declared destination.”).
100

Refer to § 15.13.2 (Types of Neutral Vessels and Aircraft That Are Exempt From Visit and Search).

101

Refer to § 14.8.3.2 (Forfeiture of Protection From Being Made the Object of Attack During Armed Conflict).

932

on board such aircraft may be captured outside neutral airspace. 102
Any enemy State aircraft (including military, law enforcement, and customs aircraft), as
public movable property, is subject to capture as war booty with ownership passing immediately
to the captor government. 103 Similarly, prize procedure is not used for captured enemy
warships. 104
Neutral civil aircraft engaged in certain activity in violation of their neutral status areliable to capture. 105 Even if not liable to capture, neutral civil aircraft are subject to visit andsearch. 106
14.6 BELLIGERENT CONTROL OF AVIATION IN THE IMMEDIATE VICINITY OF HOSTILITIESBelligerents may prohibit or establish special restrictions upon flight activities in theimmediate vicinity of hostilities to prevent such activities from jeopardizing military operations.
In some cases, this right may be distinct from a belligerent State’s right to establish airspacezones during armed conflict. 107
As with the belligerent right to control the immediate area of naval operations, this rightis based on a belligerent State’s right to ensure the security of its forces and its right to conduct
hostilities without interference from neutrals. 108 However, belligerent control of aviation in theimmediate vicinity of hostilities may be applicable in the national airspace of belligerents. 109

102

Consider Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General
Report, Part II: Rules of Aërial Warfare, art. 49, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIALDOCUMENTS 12, 40 (1938) (“Private aircraft are liable to visit and search and to capture by belligerent military
aircraft.”); Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General
Report, Part II: Rules of Aërial Warfare, art. 52, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIALDOCUMENTS 12, 45 (1938) (“Enemy private aircraft are liable to capture in all circumstances.”).
103

Refer to § 5.17.3 (Enemy Movable Property on the Battlefield (War Booty)). Consider Commission of Jurists toConsider and Report Upon the Revision of the Rules of Warfare, General Report, Part II: Rules of Aërial Warfare,art. 32, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 12, 30 (1938) (“Enemy publicaircraft, other than those treated on the same footing as private aircraft, shall be subject to confiscation without prize
proceedings.”); Program on Humanitarian Policy and Conflict Research at Harvard University, Commentary on the
HPCR Manual on International Law Applicable to Air and Missile Warfare, 275 (U.I.136(a)) (2010) (“Enemy
military, law-enforcement and customs aircraft are booty of war. Prize procedures do not apply to captured enemy
military aircraft and other State aircraft, inasmuch as their ownership immediately passes to the captor government
by virtue of capture.”).
104

Refer to § 13.4.3 (Captured Enemy Warships – No Prize Procedure).

105

Refer to § 15.15.1 (Grounds for the Capture of Neutral Vessels and Aircraft).

106

Refer to § 15.13 (Belligerent Right of Visit and Search of Merchant Vessels and Civil Aircraft).

107

Refer to § 14.7 (Airspace Zones).

108

Refer to § 13.8 (Belligerent Control of the Immediate Area of Naval Operations).

109

Refer to § 14.2.1.1 (National Airspace).

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14.7 AIRSPACE ZONES
During armed conflict, States may establish airspace zones and associated procedures
intended to prohibit aircraft from entering or flying in designated areas, including areas ininternational airspace. Such zones may be established for a variety of purposes, including todecrease the risk of inadvertent attack of civil or neutral aircraft, to control the scope of theconflict, or to enhance the predictability and effectiveness of ongoing operations.
The legal rules that apply to the establishment and enforcement of a zone are discussed inconnection with the establishment and enforcement of maritime zones. 110
In some cases, such as with Air Defense Identification Zones, the zone may beestablished during peacetime. 111
14.8 ATTACKS AGAINST MILITARY OBJECTIVES IN THE AIR
The general rules on conducting attacks also apply to attacks against military objectives
in the air. 112 In general, enemy military aircraft may be made the object of attack.
14.8.1 Medical Aircraft. Specific rules found in the 1949 Geneva Conventions address
the protection of aircraft that are engaged exclusively in specified medical functions. 113
14.8.2 Protection of Persons Who Surrender or Who Are Otherwise Hors De Combat on
Board Enemy Aircraft. The general rules on the protection of persons who are hors de combat(such as those who have been incapacitated and those who have effectively surrendered) also
apply to persons on board enemy aircraft. 114
Although the capture of enemy military aircraft and aircrew may be of significant
intelligence value, there are often significant practical obstacles to identifying when persons onboard an aircraft are hors de combat and to accepting their surrender. Despite these practicaldifficulties, if surrender is offered in good faith and circumstances do not preclude enforcement,
then surrender must be respected. 115 Persons who are conducting attacks against enemy military
aircraft must assess in good faith whether surrender is offered in good faith and can feasibly be
accepted based on the information that is available to them at the time. 116
14.8.2.1 Difficulty in Identifying Persons on Board Aircraft as Hors De Combat.
As a practical matter, it may be quite difficult to establish that persons on board enemy aircraft
110

Refer to § 13.9 (Maritime and Airspace Zones: Exclusion, War, Operational, Warning, and Safety).

111

Refer to § 14.2.4 (Air Defense Identification Zone (ADIZ)).

112

Refer to § 5.4.2 (Overview of Rules in Conducting Attacks).

113

Refer to § 7.14 (Military Medical Aircraft); § 7.19 (Civilian Medical Aircraft).

114

Refer to § 5.9 (Persons Placed Hors de Combat).

115

1976 AIR FORCE PAMPHLET 110-31 ¶4-2d (“If surrender is offered in good faith so that circumstances do notpreclude enforcement, then surrender must be respected.”).
116

Refer to § 5.3.2 (Decisions Must Be Made in Good Faith and Based on Information Available at the Time).

934

are hors de combat and may no longer be made the object of attack.
First, it is very difficult, if not impossible, to assess whether the enemy aircraft has
actually been disabled and does not pose any threat. For example, aircraft may feign symptoms
of distress to evade enemy attacks. 117 Moreover, even if an aircraft has been disabled in somerespects, the aircraft may not have lost its means of combat, and weapons on board the aircraft
may still pose a threat.
As a practical matter, it may also be difficult for the pilot of an attacking aircraft to know
when an adversary is attempting to surrender or has surrendered. Broadcasting on theinternational GUARD frequency (aircraft emergency frequency), rocking the aircraft’s wings,
lowering the landing gear, and other signals (such as the flashing of navigational lights) aresometimes cited as indications of a pilot or aircrew’s desire to surrender, but they are notrecognized in law as signals of surrender. Consequently, absent an explicit message of offeringsurrender, an intention to surrender cannot be presumed from the conduct of the aircraft.
14.8.2.2 Feasibility of Accepting Surrender by Enemy Aircraft. In many
circumstances, it may not be feasible to accept the surrender of enemy aircraft. 118 For example,
it may not be possible to enforce surrender when the engagement takes place over enemy
territory. 119
14.8.3 Attacks Against Civil Aircraft. During armed conflict, civil aircraft are generally
considered civilian objects, but may be made the object of attack, outside neutral territory, if they
constitute a military objective.
14.8.3.1 Protection of Civil Aircraft in Peacetime. Under customary internationallaw applicable during peacetime, States have an obligation to refrain from resorting to the use of
weapons against civil aircraft in flight. 120 However, this obligation does not modify in any way
117

Refer to § 5.25.3 (Examples of Other Deceptions That Are Not Prohibited).

118

1976 AIR FORCE PAMPHLET 110-31 ¶4-2d (“Surrenders in air combat are generally not offered. If surrender isoffered, usually no way exists to enforce the surrender.”).
1192004 UK MANUAL ¶12.64 (“Although it is forbidden to kill or wound an enemy who, having laid down his arms,
or having no longer means of defence, has surrendered at discretion in air-to-air combat, surrender is usually
impracticable and occurs very infrequently.”); 2004 UK MANUAL ¶12.64.1 (“In the special circumstances of air-toair combat the continuation of an attack after an indication by the opponent of a wish to surrender is not inconsistent
with the rule in paragraph 12.64, as the enemy pilot who remains in his aircraft cannot be said to have ‘laid down his
arms’ or to have ‘no longer a means of defence’. However, if the surrender is offered in good faith and incircumstances that do not prevent enforcement, for example, when the engagement has not taken place over enemy
territory, it must be respected and accepted.”).
120

See, e.g., Walter Dellinger, Assistant Attorney General, United States Assistance to Countries that Shoot Down
Civil Aircraft Involved in Drug Trafficking, Jul. 14, 1994, 18 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 148, 14950 (“[T]he United States argued that the Soviet Union had violated both Article 3(d) and customary international
legal norms in shooting down KAL 007. … We understand that the United States has not yet ratified Article 3 bis.
There is, however, support for the view that the principle it announced is declaratory of customary internationallaw.”); U.N. SECURITY COUNCIL RESOLUTION 1067, U.N. Doc. S/RES/1067 (1996) (“6. Condemns the use of
weapons against civil aircraft in flight as being incompatible with elementary considerations of humanity, the rulesof customary international law as codified in article 3 bis of the Chicago Convention, … .”). Consider Protocol
Relating to an Amendment to the Convention on International Civil Aviation (Article 3 bis), May 10, 1984, 2122

935

the rights and obligations of States set forth in the Charter of the United Nations. 121 Thus, aState’s use of force against civil aircraft in the exercise of the inherent right of self-defense
would be permitted.
14.8.3.2 Forfeiture of Protection From Being Made the Object of Attack During
Armed Conflict. Civil aircraft may be made the object of attack, outside neutral territory, if theaircraft constitutes a military objective. 122
In particular, civil aircraft forfeit any protection from being made the object of attack ifthey acquire the character of enemy military aircraft by:•taking a direct part in the hostilities on the side of the enemy; or•

acting in any capacity as a naval or military auxiliary to the enemy’s armed forces. 123
In addition, enemy civil aircraft forfeit protection from being made the object of

attack:124•

when persistently refusing to comply with directions from intercepting aircraft; 125•

when flying under convoy of enemy warships or military aircraft;•when armed with systems or weapons beyond that required for self-defense against

UNTS 346-47 (“The contracting States recognize that every State must refrain from resorting to the use of weapons
against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraftmust not be endangered. This provision shall not be interpreted as modifying in any way the rights and obligationsof States set forth in the Charter of the United Nations.”).
121

Consider Protocol Relating to an Amendment to the Convention on International Civil Aviation (Article 3 bis),
May 10, 1984, 2122 UNTS 346-47 (“The contracting States recognize that every State must refrain from resorting to
the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board andthe safety of aircraft must not be endangered. This provision shall not be interpreted as modifying in any way therights and obligations of States set forth in the Charter of the United Nations.”) (emphasis added). Compare§ 13.1.1 (The Law of the Sea During Armed Conflict).
122

Refer to § 5.6 (Military Objectives).

123

Refer to § 15.14.2.1 (Acquiring the Character of an Enemy Warship or Military Aircraft).

124

2007 NWP 1-14M ¶8.8 (“Enemy merchant vessels and civil aircraft may be attacked and destroyed by military
aircraft only under the following circumstances: 1. When persistently refusing to comply with directions from theintercepting aircraft 2. When sailing under convoy of enemy warships or military aircraft 3. When armed withsystems or weapons beyond that required for self-defense against terrorism, piracy, or like threats 4. When
incorporated into or assisting in any way the enemy’s military intelligence system 5. When acting in any capacity asa naval or military auxiliary to an enemy’s armed forces 6. When otherwise integrated into the enemy’s war-fighting
or war-sustaining effort.”); 1989 NWP 9 ¶8.4 (“Enemy merchant vessels and civil aircraft may be attacked anddestroyed by military aircraft only under the following circumstances: 1. When refusing to comply with directions
from the intercepting aircraft 2. When assisting in any way the enemy’s military intelligence system or acting in any
capacity as auxiliaries to the enemy’s armed forces 3. When sailing under convoy of enemy warships, escorted byenemy military aircraft, or armed 4. When otherwise integrated into the enemy’s war-fighting or war-sustaining
effort.”).
125

Refer to § 14.5.2.1 (Failure to Comply by Civil Aircraft).

936

terrorism, piracy, or like threats;•

when incorporated into or assisting the enemy’s military intelligence system; 126 or•when otherwise integrated into the enemy’s war-fighting or war-sustaining effort.

14.8.3.3 Attack of Civilian Passenger Aircraft. If a civilian passenger aircraft
constitutes a military objective and thus is liable to attack, any attack must comply with otherapplicable rules related to attacks. 127
In particular, attacks against civilian passenger aircraft engaged in passenger service mustcomply with the requirement that the expected loss of life or injury to civilians, and damage tocivilian objects incidental to the attack, must not be excessive in relation to the concrete anddirect military advantage expected to be gained. 128
14.9 AIR ATTACKS AGAINST MILITARY OBJECTIVES ON THE GROUND
The general rules on conducting attacks also apply to air attacks against military
objectives on the ground. 129
14.9.1 Prohibition Against Bombardment of Undefended Cities, Towns, and Villages.
The aerial bombardment of towns, villages, dwellings, or buildings that are undefended isprohibited. 130 The phrase “by whatever means” was inserted in the Hague IV Regulations toclarify that bombing attacks by air were included in this rule. 131
An “undefended” city, town, or village in this sense is a term of art. For example, a city
may only be declared “undefended” if it is open for immediate physical occupation by opposing
military ground forces. 132
14.9.2 Selection of Weapons in Conducting Attacks From the Air Against Ground
Military Objectives. It may be the case that commanders will have a variety of weapons withwhich to conduct a potential aerial bombardment.
Certain weapons are prohibited per se, and it is specifically provided that feasible
126

Consider Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General
Report, Part I: Rules for the Control of Radio in Time of War, art. 6, Feb. 19, 1923, reprinted in 32 AJIL
SUPPLEMENT: OFFICIAL DOCUMENTS 2, 7-8 (1938) (“1. The transmission by radio by a vessel or an aircraft, whether
enemy or neutral, when on or over the high seas of military intelligence for the immediate use of a belligerent is tobe deemed a hostile act and will render the vessel or aircraft liable to be fired upon.”).
127

Refer to § 5.4 (Rules on Conducting Assaults, Bombardments, and Other Attacks).

128

Refer to § 5.12 (Proportionality – Prohibition on Attacks Expected to Cause Excessive Incidental Harm).

129

Refer to § 5.4.2 (Overview of Rules in Conducting Attacks).

130

Refer to § 5.15 (Undefended Cities, Towns, and Villages).

131

Refer to § 5.15.2 (“By Whatever Means”).

132

Refer to § 5.15.3 (Declaration of a City as “Undefended”).

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precautions be taken in connection with certain weapons. 133 It must be emphasized, however,that the selection of the appropriate weapon for conducting an aerial bombardment remains
primarily a military judgment rather than a legal one. In particular, there is no law of war
requirement to use precision-guided weapons when non-precision-guided weapons may be usedin compliance with the law of war. 134
Commanders have a general obligation to take feasible precautions in planning andconducting attacks in order to reduce the risk of harm to the civilian population. 135 The selectionof weapons may be among the available precautions that a commander could take in order toreduce the risk of harm to the civilian population.
14.9.3 Protection of Enemy Ground Forces Who Are Hors de Combat. When aircrew oraircraft operators assess that an enemy combatant has been placed hors de combat, they mustrefrain from making such persons the object of attack. 136
In order to place a person hors de combat, the person’s surrender must be (1) genuine; (2)clear and unconditional; and (3) under circumstances where it is feasible for the opposing party
to accept the surrender. 137
In many cases, it would not be feasible for a party that is conducting air operations to
accept the surrender of an enemy person. In some cases, however, it may be appropriate, inorder to facilitate such surrender, to communicate steps for enemy units to take to communicate
clearly their intention to surrender. 138
14.9.3.1 Difficulty in Identifying Persons Placed Hors De Combat. The
identification by aircraft of an enemy combatant on the ground placed hors de combat may posea particular challenge. It may be difficult for aircrew or aircraft operators to determine whether
an enemy combatant is dead, injured, merely taking cover, or feigning injury or surrender to133

Refer to § 6.4 (Prohibited Weapons); § 5.2.3.4 (Requirements to Take Precautions Regarding Specific Weapons).

134

Refer to § 5.11.6 (Weaponeering (E.g., Selecting Appropriate Weapons, Aim Points)).

135

Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk ofHarm to Protected Persons and Objects).
136

Refer to § 5.9 (Persons Placed Hors de Combat).

137

Refer to § 5.9.3 (Persons Who Have Surrendered).

138

Captain M. Scott Holcomb, View from the Legal Frontlines, 4 CHICAGO JOURNAL OF INTERNATIONAL LAW 561,
566-67 (2003) (“In August 2002, I met with Commander Kenneth O’Rourke, the Chief of Operational Law at
CENTCOM, and Lieutenant Commander Gregory Bart, the Special Operations Command Central (‘SOCCENT’)
Staff Judge Advocate to develop legally supportable concepts that would achieve the commander’s intent to either
have Iraqi units assist Coalition forces or indicate a desire not to fight and remain in place, preferably in theirbarracks. … Consequently, we sketched an outline for an operational plan to encourage units to capitulate.
Coalition forces would contact Iraqi units through various means including leaflet drops, radio broadcasts, andsurrogates who would inform the commander of his opportunity to surrender with honor and preserve his unit. Iraqi
units would receive these messages shortly before the air campaign started to give them time to perform the required
actions, but not so much time that they would be subject to regime reprisals. If the unit performed certain
observable actions, such as forming their vehicles in a square, then Special Forces would approach the unit and offer
articles of capitulation for the surrender of the unit.”).

938

avoid attack. 139 On the other hand, it may be difficult for enemy combatants on the ground tocommunicate clearly to aircraft that they wish genuinely to surrender unconditionally or that they
have been incapacitated.
Aircrew or aircraft operators must assess in good faith whether persons have been placedhors de combat based on the information that is available to them at the time. 140
14.9.3.2 Feasibility of Air Units to Accept the Surrender of Ground Forces. For acommunication of surrender to place a person hors de combat, the person must make thesurrender under circumstances where it is feasible for the opposing party to accept thesurrender. 141 For example, it must be possible for the opposing party to take that person into
custody. 142
In many cases, it would not be feasible for the aircraft to land and take the person into
custody or for nearby ground forces to take the person into custody. 143
139

See SPAIGHT, AIR POWER AND WAR RIGHTS 132 (“In the second world war also there were one or two instancesin which ground forces showed the white flag to aircraft. … Other circumstances are conceivable in which there
could be no assurance that the display of a white flag was not a ruse to enable the enemy troops to escape after theimmediate danger was past. In such circumstances it could he [sic] held that the airmen were under no obligation to
discontinue their attack.”).
140

Refer to § 5.3.2 (Decisions Must Be Made in Good Faith and Based on Information Available at the Time).

141

Refer to § 5.9.3.3 (Under Circumstances in Which It Is Feasible to Accept).

142

For example, FINAL REPORT ON THE PERSIAN GULF WAR 381 (“During this attack, the two companies of 3/1
Attack Helicopter Battalion encountered minimal resistance in the form of T-55 tanks and BMPs, which they
destroyed. The surprising aspect of this operation was that it was the first of many instances where hundreds of Iraqi
soldiers ran out of their bunkers and attempted to surrender after seeing Army helicopters in their midst. Without
the means to hold them, the aeroscout pilots played ‘cowboys’ to the ‘herd’ of Iraqi soldiers, hovering them into atight circle until the lead ground elements of the Division's 1st Brigade arrived and secured them.”); FINAL REPORTON THE PERSIAN GULF WAR 212 (“In addition to direct support of NGFS missions, UAVs also were used to gather
intelligence on Faylaka Island when national sensors were not available and weather prevented aircraft
reconnaissance. Over Faylaka Island, USS Wisconsin’s UAV recorded hundreds of Iraqi soldiers waving white flags– the first-ever surrender of enemy troops to an unmanned aircraft. After the cease-fire, UAVs monitored thecoastline and outlying islands in reconnaissance support of occupying Coalition forces. Because UAVs were under
direct tactical control of combat forces, they could respond quickly in dynamic situations. On one occasion, USS
Wisconsin’s UAV located two Iraqi patrol boats, which were sunk by aircraft directed to investigate.”).
143

For example, 101st Airborne ROE Card, Iraq (2003), reprinted in CENTER FOR LAW AND MILITARY OPERATIONS,THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, I LEGAL LESSONS LEARNED FROM
AFGHANISTAN AND IRAQ: MAJOR COMBAT OPERATIONS (11 SEPTEMBER 2001 - 1 MAY 2003) 315, 316 (2004) (“3.
Facts: An armed soldier sees you and throws his hands up to surrender. Response: Take the soldier prisoner, andtreat as an EPW. (Note: aircraft are not in the position to accept surrender, in the foregoing scenario, a 101st ABD
aircraft could fire upon the enemy soldier).”); SPAIGHT, AIR POWER AND WAR RIGHTS 131-32 (“Usually it is
impossible for attacking airmen to take ground troops prisoners, and such a situation as that described by Lieut.-Col.
Tennant as arising in Iraq in February, 1917, is probably more typical and normal than the cases quoted above.
Lieut.-Col. Tennant describes how in the Turkish retreat towards Azizieh, after the forcing by General Maude’s
army of the Shumran Bend in the Tigris on 23 February, 1917, ‘many of the waggons had hoisted the white flag,’while some of the flying Turks ‘waved in token of surrender,’ when the British aeroplanes attacked them withmachine-guns. ‘Flying along about 10 feet from the road I mowed down seven with one burst of machine-gun fire.’
In such circumstances it is impossible to recognise the white flag. To try to do so would be to sacrifice theadvantage of the destruction of a routed and demoralised foe.”).

939

14.10 INTERNATIONAL LAW AND WARFARE IN OUTER SPACE
14.10.1 Classification of Outer Space. Outer space is governed by a separate legal
regime than that for airspace. 144
Outer space may be viewed as analogous to the high seas in certain respects. 145 For
example, no State may claim sovereignty over outer space. 146 In addition, the space systems of
all nations have rights of passage through space without interference. 147
14.10.2 Application of International Law to Activities in Space.
14.10.2.1 Treaties Specifically Addressing Space Activities. The United States is
a Party to certain treaties that address space activities. The Treaty on Principles Governing the
Activities of States in the Exploration and Use of Outer Space, including the Moon and Other
Celestial Bodies (Outer Space Treaty), imposes restrictions on certain military operations inouter space (i.e., it does not exempt military spacecraft or military space activities from its
purview). 148 The Outer Space Treaty provides for State responsibility for the activities of nongovernmental entities in outer space, including the moon and other celestial bodies. 149
Other treaties that specifically address space activities include:•

144

Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return ofRefer to § 14.2.2 (Vertical Boundary Between Airspace and Outer Space).

145

Arthur J. Goldberg, U.S. Ambassador to the United Nations, Treaty on Outer Space: Hearings Before theCommittee on Foreign Relations, U.S. Senate, 90th Congress, First Session, 63 (Mar. 13, 1967) (“This is an attempt,
once we leave airspace, and get to outer space, however you define the limits, this is an attempt to create in outerspace the closest analogy and that is the high seas.”).
146

OUTER SPACE TREATY art. II (“Outer space, including the moon and other celestial bodies, is not subject tonational appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”).

147

See, e.g., OUTER SPACE TREATY art. I (“Outer space, including the moon and other celestial bodies, shall be free
for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordancewith international law, and there shall be free access to all areas of celestial bodies.”); National Space Policy of theUnited States of America, 3 (Jun. 28, 2010) (“The United States considers the space systems of all nations to havethe rights of passage through, and conduct of operations in, space without interference. Purposeful interference withspace systems, including supporting infrastructure, will be considered an infringement of a nation’s rights.”);Presidential Directive/NSC-37, National Space Policy, ¶1.d (May 11, 1978) (“The space systems of any nation are
national property and have the right of passage through and operations in space without interference. Purposefulinterference with operational space systems shall be viewed as an infringement upon sovereign rights.”).
148

Refer to § 14.10.3 (Outer Space Treaty Restrictions on Military Activities).

149

OUTER SPACE TREATY art. VI (“States Parties to the Treaty shall bear international responsibility for national
activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by
governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in
conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outerspace, including the moon and other celestial bodies, shall require authorization and continuing supervision by theappropriate State Party to the Treaty.”).

940

Objects Launched into Outer Space; 150•

Convention on International Liability for Damage Caused by Space Objects; 151 and•Convention on Registration of Objects Launched into Outer Space. 152

Certain provisions of these treaties may not be applicable as between belligerents during
international armed conflict. 153
14.10.2.2 Application of General International Law to Activities and Use of Outer
Space. The Outer Space Treaty reaffirms the duty of States Parties to comply with existing
international law in carrying out activities in outer space. Article III of the Outer Space Treaty
provides that “States Parties to the Treaty shall carry on activities in the exploration and use ofouter space, including the moon and other celestial bodies, in accordance with international law,
including the Charter of the United Nations, in the interest of maintaining international peace andsecurity and promoting international cooperation and understanding.” 154
Although existing international law, such as the Charter of the United Nations, generally
applies to States Parties’ activities in outer space, international law that prescribes certain
conditions for national claims of sovereignty does not apply to outer space because outer space is
not subject to national appropriation. 155

150

Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into
Outer Space, Apr. 22, 1968, 672 UNTS 119.
151

Convention on International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 961 UNTS 187.

152

Convention on Registration of Objects Launched into Outer Space, Nov. 12, 1974, 1023 UNTS 15.

153

Department of Defense, Office of the General Counsel, An Assessment of International Legal Issues inInformation Operations (2nd ed., Nov. 1999), reprinted in 76 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAWSTUDIES 459, 494 (2002) (“During an international armed conflict between the two nations concerned, however, thelaw of armed conflict would apply unless it was trumped by the principle of noninterference with space systems.
Resolution of this issue depends largely on whether the four space treaties will be considered to apply during anarmed conflict. None of them has any specific provision that indicates whether the parties intended that theagreement apply in wartime. There appears to be a strong argument that the principle of noninterference establishedby these agreements is inconsistent with a state of hostilities, at least where the systems concerned are of such highmilitary value that there is a strong military imperative for the adversary to be free to interfere with them, even to theextent of destroying the satellites in the system. As indicated in the discussion of treaty law in the introduction tothis paper, the outcome of this debate may depend on the circumstances in which it first arises in practice.”).
154

OUTER SPACE TREATY art. III. See also Staff Report prepared for the use of the Committee on Aeronautical andSpace Sciences, United States Senate, Treaty on Principles Governing the Activities of States in the Exploration and
Use of Outer Space, Including the Moon and Other Celestial Bodies: Analysis and Background Data, 24 (Mar.
1967) (“This article makes clear that those nations which ratify the treaty will observe international law—and thisincludes the Charter of the United Nations—in order to promote international cooperation and peace. Thus thatbody of law, which has developed on the Earth in order to bring about harmonious relations between nations andsettle disputes without resort to violence, would become applicable to outer space, the Moon, and other celestialbodies.”).
155

Staff Report prepared for the use of the Committee on Aeronautical and Space Sciences, United States Senate,
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including theMoon and Other Celestial Bodies: Analysis and Background Data, 24 (Mar. 1967) (“An exception would be941

Certain treaties apply only in certain geographical locations (such as a State’s own
territory), and thus might not create obligations applicable to a State’s activities in outer space.
However, law of war treaties and the customary law of war are understood to regulate theconduct of hostilities, regardless of where they are conducted, which would include the conductof hostilities in outer space. In this way, the application of the law of war to activities in outerspace is the same as its application to activities in other environments, such as the land, sea, air,or cyber domains.
14.10.3 Outer Space Treaty Restrictions on Military Activities. The Outer Space Treaty
imposes restrictions on certain military operations in outer space.
Other treaties may also impose restrictions on military activities in outer space. For
example, the Treaty Banning Nuclear Testing in the Atmosphere, Oceans, and Outer Space(Limited Test Ban Treaty) prohibits nuclear weapon test explosions in outer space. 156
14.10.3.1 Restriction on Nuclear Weapons and Other Kinds of Weapons of Mass
Destruction in Outer Space. Article IV of the Outer Space Treaty provides that “States Parties to
the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons
or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or
station such weapons in outer space in any other manner.” 157
The prohibition on placing weapons of mass destruction “in orbit around the earth” refers
only to their placement in full orbit around the Earth; thus, the Outer Space Treaty does not ban
the use of nuclear or other weapons of mass destruction that go into a fractional orbit or engage
in suborbital flight. 158 For example, intercontinental ballistic missiles (ICBMs) will travel a
portion of their trajectory in outer space; but because ICBMs would enter outer space only
temporarily, their entry into outer space with nuclear warheads would not violate thisprohibition. 159 By contrast, some arms control treaties have prohibited the production, testing, orinternational law which provides certain conditions for national claims of sovereignty, this exception having been
set forth in Article II.”); OUTER SPACE TREATY art. II (“Outer space, including the moon and other celestial bodies,
is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any othermeans.”).
156

Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, art. 1, Aug. 5, 1963,
480 UNTS 43, 45 (“Each of the Parties to this Treaty undertakes to prohibit, to prevent, and not to carry out any
nuclear weapon test explosion, or any other nuclear explosion, at any place under its jurisdiction or control: (a) in
the atmosphere; beyond its limits, including outer space; or under water, including territorial waters or high seas;”).
157

OUTER SPACE TREATY art. IV (“States Parties to the Treaty undertake not to place in orbit around the Earth any
objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons oncelestial bodies, or station such weapons in outer space in any other manner.”).

158

See I NANDASIRI JASENTULIYANA & ROY S. LEE, MANUAL ON SPACE LAW 13-14 (1979) (“The phrase ‘orbit
around the earth’ in the first paragraph of this Article means that an object must be placed in a full orbit around theearth before it comes within the prohibition of the Treaty. Therefore an object in a fractional orbit or suborbital
flight is not intended to be covered. This was the clear intention of the drafters of this Article.”).
159

Staff Report prepared for the use of the Committee on Aeronautical and Space Sciences, United States Senate,
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including theMoon and Other Celestial Bodies: Analysis and Background Data, 26 (Mar. 1967) (“The treaty does not change theearthly situation with regard to ICBM’s, but seeks to achieve on celestial bodies a form of demilitarization which isdeemed feasible from military and political viewpoints.”).

942

deployment of systems, including missiles, that place nuclear weapons or other weapons of mass
destruction into either full earth orbit or a fraction of an earth orbit. 160
In addition, this rule in Article IV of the Outer Space Treaty does not establish any
prohibitions with respect to weapons that are not weapons of mass destruction (e.g., anti-satellite
laser weapons or other conventional weapons). 161
14.10.3.2 Restrictions on Military Activities on the Moon and Other Celestial
Bodies. Article IV of the Outer Space Treaty places certain prohibitions on military activities on
the moon and other celestial bodies: (1) the establishment of military bases, installations, andfortifications; and (2) the testing of any type of weapons; and (3) the conduct of militarymaneuvers. 162
These activities are prohibited only on the moon and other celestial bodies, not in outerspace itself.
Article IV also recognizes the unimpeded right to: (1) the use of military personnel forscientific research or other peaceful purposes on outer space missions; and (2) the use of any
equipment or facility necessary for the peaceful exploration of the moon and other celestialbodies. 163
14.10.4 General Use of Outer Space for Peaceful Purposes. The United States has
expressed the view that outer space should be used only for peaceful purposes. 164 This view is160

For example, Treaty Between the United States of America and the Union of Soviet Socialist Republics on the
Reduction and Limitation of Strategic Offensive Arms, Jul. 31, 1991, U.S.-USSR, Article V(18)(c), S. TREATY DOC.
NO. 102-20, which expired December 5, 2009.
161

David A. Koplow, ASAT-isfaction: Customary International Law and the Regulation of Anti-Satellite Weapons,
30 MICHIGAN JOURNAL OF INTERNATIONAL LAW 1187, 1198 (2009) (“This provision does not impede the stationingof non-nuclear weapons (including conventional ASAT weapons) in space, nor does it affect a nuclear weapon thatmakes only a temporary transit of outer space, as when propelled by an intercontinental ballistic missile (ICBM)
toward its target, rather than being ‘stationed’ in space.”).
162

OUTER SPACE TREATY art. IV (“The moon and other celestial bodies shall be used by all States Parties to theTreaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, thetesting of any type of weapons and the conduct of military maneuvers on celestial bodies shall be forbidden.”).

163

OUTER SPACE TREATY art. IV (“The use of military personnel for scientific research or for any other peacefulpurposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of themoon and other celestial bodies shall also not be prohibited.”).

164

See, e.g., National Space Policy of the United States of America 3 (Jun. 28, 2010) (“All nations have the right toexplore and use space for peaceful purposes, and for the benefit of all humanity, in accordance with internationallaw. Consistent with this principle, ‘peaceful purposes’ allows for space to be used for national and homeland
security activities.”); Albert Gore, Sr., U.S. Representative to the United Nations, U.N. General Assembly, 17th
Sess., 1289th Mtg., U.N. Doc. A/C.1/PV.1289 (1962) (“It is the view of the United States that outer space should be
used only for peaceful – that is non-aggressive and beneficial – purposes. The question of military activities inspace cannot be divorced from the question of military activities on Earth. To banish these activities in both
environments we must continue our efforts for general and complete disarmament with adequate safeguards. Until
this is achieved, the test of any space activities must not be whether it is military or non-military, but whether or not
it is consistent with the United Nations Charter and other obligations of law.”).

943

consistent with the Preamble to the Outer Space Treaty. 165
The United States has interpreted use of outer space for “peaceful purposes” to mean
“non-aggressive and beneficial” purposes consistent with the Charter of the United Nations andother international law. 166 This interpretation of “peaceful purposes” is similar to theinterpretation given to the reservation of the high seas for “peaceful purposes” in the LOS
Convention. 167
For example, observation or information-gathering from satellites in space is not an act ofaggression under the Charter of the United Nations and, thus, would be a use of space forpeaceful purposes. 168 Similarly, lawful military activities in self-defense (e.g., missile early
warning, use of weapon systems) would be consistent with the use of space for peacefulpurposes, but aggressive activities that violate the Charter of the United Nations would not be
permissible. 169
Article IV of the Outer Space Treaty provides that “[t]he moon and other celestial bodies
shall be used by all States Parties to the Treaty exclusively for peaceful purposes.” 170 Article IV

165

OUTER SPACE TREATY preamble (“Recognizing the common interest of all mankind in the progress of the
exploration and use of outer space for peaceful purposes,”).

166

Senator Albert Gore, Sr., Treaty on Outer Space: Hearings Before the Committee on Foreign Relations, U.S.
Senate, 90th Congress, First Session, 59 (Mar. 13, 1967) (“We interpret peaceful purposes as being non-aggressive
and beneficial.”). See also Staff Report prepared for the use of the Committee on Aeronautical and Space Sciences,
United States Senate, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, Including the Moon and Other Celestial Bodies: Analysis and Background Data, 11 (Mar. 1967) (“InRussian, the word for ‘military’ essentially means warlike rather than pertaining to the armed services of a country;
in the United States, ‘peaceful’ is not regarded as the opposite of ‘military’—we think of ‘peaceful’ as ‘notaggressive.’”); CARL Q. CHRISTOL, THE MODERN INTERNATIONAL LAW OF OUTER SPACE 22 (1982) (“Theexpression ‘peaceful purposes’ is a legal term of art. At the beginning of the Space age several views wereadvanced as to its meaning, with one view being that military activities in the space environment could not be andwere not peaceful. The opposing position, which today has gained general acceptance, is that nonaggressive
military uses are peaceful. Thus, ‘peaceful’ has come to mean general space activity that is beneficial to and in theinterests of all countries.”).
167

Refer to § 13.1.1 (The Law of the Sea During Armed Conflict).

168

See Albert Gore, Sr., U.S. Representative to the United Nations, U.N. General Assembly, 17th Sess., 1289th
Mtg., U.N. Doc. A/C.1/PV.1289 13 (1962) (“[A]ny nation may use space satellites for such purposes as observationand information-gathering. Observation from space is consistent with international law, just as is observation fromthe high seas.”); Report by the Committee on Satellite Reconnaissance Policy, attached to Jul. 2, 1962 memorandum
from Secretary Rusk to President Kennedy, excerpted in XXV FOREIGN RELATIONS OF THE UNITED STATES (19611963), 951-59 (2001) (“(b) It is well established that areas subject to the jurisdiction of a state may be observed frompoints outside that jurisdiction, e.g., from a ship on the high seas. Observation from outer space, which is not
subject to territorial claims, also cannot be considered to constitute a violation of international law.”).
169

CARL Q. CHRISTOL, THE INTERNATIONAL LAW OF OUTER SPACE 114 (1966) (“It may be concluded that bothballistic missiles, directly, and satellites, indirectly, have military utility. This does not automatically exclude themfrom the category of peaceful uses, since defensive and deterrent capabilities serve the cause of peace. It is only
when such devices are intentionally used for aggressive purposes that they lose their peaceful status.”).

170

OUTER SPACE TREATY art. IV (“The moon and other celestial bodies shall be used by all States Parties to theTreaty exclusively for peaceful purposes.”).

944

specifies restrictions on military operations on the moon and other celestial bodies. 171
14.10.5 Outer Space Treaty Provisions on Cooperation, Mutual Assistance, andPotentially Harmful Interference. Article IX of the Outer Space Treaty provides that in the
exploration and use of outer space, States Parties shall be guided by the principle of cooperationand mutual assistance and shall conduct all their activities in outer space with due regard to thecorresponding interests of all other States Parties. 172 For example, States should conduct theiractivities in space with due regard for the rights of other States to have their space systems passthrough, and conduct operations in, space without interference.
Article IX of the Outer Space Treaty also requires States Parties to undertake“appropriate international consultations” before proceeding with any activity or experimentplanned by it or its nationals in outer space if that State Party has reason to believe that its
activity or experiment would cause potentially harmful interference with the activities of otherStates Parties in the peaceful exploration and use of outer space. 173 Conversely, a State Party
that has reason to believe that an activity or experiment planned by another State Party in outerspace would cause potentially harmful interference with its activities in the peaceful exploration
and use of outer space may request consultation concerning the activity or experiment. 174

171

Refer to § 14.10.3.2 (Restrictions on Military Activities on the Moon and Other Celestial Bodies).

172

OUTER SPACE TREATY art. IX (“In the exploration and use of outer space, including the moon and other celestialbodies, States Parties to the Treaty shall be guided by the principle of cooperation and mutual assistance and shallconduct all their activities in outer space, including the moon and other celestial bodies, with due regard to thecorresponding interests of all other States Parties to the Treaty.”).

173

OUTER SPACE TREATY art. IX (“If a State Party to the Treaty has reason to believe that an activity or experimentplanned by it or its nationals in outer space, including the moon and other celestial bodies, would cause potentiallyharmful interference with activities of other States Parties in the peaceful exploration and use of outer space,including the moon and other celestial bodies, it shall undertake appropriate international consultations before
proceeding with any such activity or experiment.”).

174

OUTER SPACE TREATY art. IX (“A State Party to the Treaty which has reason to believe that an activity or
experiment planned by another State Party in outer space, including the moon and other celestial bodies, would
cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including
the moon and other celestial bodies, may request consultation concerning the activity or experiment.”).

945

XV – The Law of Neutrality
Chapter Contents

15.1 Introduction
15.2 Application of the Law of Neutrality
15.3 Overview of the Neutrality Law’s Framework of Reciprocal Rights andDuties
15.4 Remedies for Violations of Neutrality Law
15.5 Prohibition on the Use of Neutral Territory as a Base of Operations
15.6 Neutral Persons
15.7 Neutral Waters
15.8 Passage of Belligerent Vessels and Aircraft Through International Straits andArchipelagic Sea Lanes
15.9 Additional Rules Applicable to Neutral Ports, Roadsteads, and Internal
Waters15.10 Neutral Airspace
15.11 Belligerent Right of Angary
15.12 Neutral Commerce and Carriage of Contraband
15.13 Belligerent Right of Visit and Search of Merchant Vessels and Civil
Aircraft
15.14 Acquisition of Enemy Character by Neutral-Flagged Merchant Vessels andNeutral-Marked Civil Aircraft
15.15 Capture of Neutral Vessels and Aircraft
15.16 Belligerent Forces Taking Refuge in Neutral Territory
15.17 POWs or Internees Brought to, or Received by, a Neutral State
15.18 Authorized Passage of Wounded and Sick Combatants Through Neutral
Territory
15.1 INTRODUCTION
This Chapter addresses the law of neutrality.
Issues of neutrality law can raise questions of national policy regarding an armed
conflict. 1 In U.S. practice, such national policies would be developed through the National
Security Council (NSC) process by the Department of State and other departments and agencies
represented on the National Security Council. 2
Some of the rules described in this Chapter were formulated long ago. Moreover, treaties
concerning the law of neutrality might, by their terms, apply only to a limited set of international
1

Refer to § 15.2.1.1 (Application of the Law of Neutrality and the National Policies of States Towards an Armed
Conflict).
2

See, e.g., Barack Obama, Presidential Policy Directive – 1, Organization of the National Security Council System,
Feb. 13, 2009.

946

armed conflicts, and the rules prescribed in those treaties might not reflect customaryinternational law. 3 In addition, it may be important to consider the implications of more recent
treaties that might be applicable to a specific legal issue. In particular, the Charter of the United
Nations may, in certain respects, be understood to be consistent with, and, in other respects, tomodify, rules reflected in the law of neutrality. 4
15.1.1 Matters Addressed by the Law of Neutrality. The law of neutrality prescribes thelegal relationship between belligerent States and neutral States. The law of neutrality regulates
relations between: (1) belligerent States, vessels, aircraft, and persons; and (2) neutral States,
vessels, aircraft, and persons. Under the law of neutrality, these categories of belligerents andneutrals have corresponding rights, duties, and liabilities. Special rules have been developed toaddress situations on land, at sea, and in the air.
Certain rules found in the law of neutrality have also been applied in other contexts thatare closely analogous, such as a State’s duties to prevent a non-State armed group’s use of its
territory for hostile expeditions against another State. 5
15.1.2 Classification of States as Belligerent, Neutral, or Non-Belligerent.
15.1.2.1 Belligerent State. Belligerent State refers to a State that is engaged in aninternational armed conflict, whether or not a formal declaration of war has been made. 6
15.1.2.2 Neutral State. Neutral State refers to a State that is not taking part in thearmed conflict. 7 In some cases, States formally state their neutral status in relation to an armed
conflict. 8
15.1.2.3 Non-Belligerent State. The term “non-belligerent” or “non-belligerent
State” has been used to refer to a State that is not participating in the armed conflict. The term
“non-belligerent Power” is used in the 1949 Geneva Conventions. 9
In addition, the term “non-belligerent” has been used to refer to States that sought torefrain from active participation in hostilities, but that did not adhere to the duties of strict
impartiality to which neutrals have traditionally been required to adhere. 10 Such departure from
3

Refer to § 15.1.4 (Application of Treaties on Neutrality and Customary International Law).

4

Refer to § 15.2.3 (The Law of Neutrality Under the Charter of the United Nations).

5

Refer to § 17.18 (Non-Intervention and Neutral Duties in NIAC).

6

Refer to § 3.4.2.1 (Reasons for States to Seek to Deny the Existence of Hostilities).

7

1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION preamble (“Considering that neutrality is the juridical
situation of states which do not take part in the hostilities, and that it creates rights and imposes obligations ofimpartiality, which should be regulated;”).

8Refer to § 15.2.1.4 (Proclamations of Neutrality and Other Notifications of Neutral Status).

9

Refer to § 15.16.3.1 (Provision of POW Treatment and Application of the GWS and GWS-Sea by Analogy).

10

TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 192 (“Thus one of the marked developments of the second
World War was the emergence of so-called ‘nonbelligerency,’ a term used to indicate the position of states thatrefrained from active participation in hostilities while at the same time abandoning the duties heretofore imposed947

the traditional duties of impartiality has, at times, been controversial. 11
15.1.3 Purpose of the Law of Neutrality. The law of neutrality seeks to preserve friendly
relations between belligerent and neutral States by permitting States to avoid taking sides in anarmed conflict. 12 The law of neutrality also seeks to prevent additional States from being drawn
into an armed conflict by establishing a clear distinction between belligerent and neutral States. 13
In particular, the law of neutrality seeks to minimize the effects of armed conflict on States thatare not party to the conflict, including by lessening the effect of war on neutral commerce.
15.1.4 Application of Treaties on Neutrality and Customary International Law. The
treaties that address neutrality may be limited in their application as a matter of treaty law, but
provisions of these treaties may reflect customary international law.
For example, many of the treaties that address the law of neutrality were concluded
before World War II, and have not been universally ratified by States. 14 Moreover, certain
treaties only apply between the Parties to the treaty and, in some cases, only if all the belligerent
States are also Parties to the treaty. 15 The principles reflected in those treaties, however, may
still be applicable insofar as they reflect customary international law, even if they do not apply asa matter of treaty law. 16 However, if the factual circumstances of the current context are quite
different from those underlying the formulation of the original treaty rule, it may be incorrect toassume that the particular treaty rule reflects (or should reflect) a rule of customary internationallaw applicable to the current factual circumstances.
15.1.5 Domestic Neutrality Laws. States may have domestic legislation relating to theupon non-participants.”); id. at 198 (“It has already been observed that to the extent that this term has not been usedmerely as a synonym for the usual position occupied by non-participants it has served to indicate varying degrees ofdeparture from the duties traditionally consequent upon a status of non-participation in war.”).
11

Refer to § 15.2.2 (Qualified Neutrality).

12

Carl Salans, Deputy Legal Adviser, Department of State, comment to R.R. Baxter, The Legal Consequences of the
Unlawful Use of Force under the Charter, 62 PROCEEDINGS OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW ATITS ANNUAL MEETING 68, 76 (1968) (“When armed conflict occurs, the purpose of international law ought to be tolimit the scope of the conflict. This is also a purpose of the Charter. The law of neutrality serves that purpose.
Small states, like Cambodia, would find themselves quickly engulfed in conflict if they had to act on a determinationthat one side or the other in hostilities was acting unlawfully. And nuclear states run another kind of risk if they
have to take sides in every conflict.”).
13

Michael Bothe, The Law of Neutrality, in DIETER FLECK, THE HANDBOOK OF HUMANITARIAN LAW IN ARMED
CONFLICTS 486 (¶1101) (1999) (“By establishing a clear distinction between neutral states and states parties to theconflict, international law prevents more states from being drawn into the conflict.”).
14

See, e.g., 1928 PAN AMERICAN NEUTRALITY CONVENTION; HAGUE V; HAGUE XIII.

15

See, e.g., HAGUE V art. 20 (“The provisions of the present Convention do not apply except between Contracting
Powers and then only if all the belligerents are parties to the Convention.”); HAGUE XIII art. 28 (“The provisions of
the present Convention do not apply except to the contracting Powers, and then only if all the belligerents are parties
to the Convention.”). Consider Declaration respecting maritime law signed by the Plenipotentiaries of GreatBritain, Austria, France, Prussia, Russia, Sardinia, and Turkey, assembled in Congress at Paris, Apr. 16, 1856,
reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 89, 90 (1907) (“The present Declaration is not and shallnot be binding, except between those Powers who have acceded, or shall accede to it.”).
16

Refer to § 1.8.1 (Relationship Between Treaties and Customary International Law).

948

law of neutrality.
In some cases, these statutes implement a State’s obligations under the law of neutrality,
such as its obligations as a neutral to prevent the arming of belligerent warships in neutral
ports. 17 These statutes may also serve to implement a State’s international obligations outside
the context of international armed conflict, such as its peacetime obligations to prevent its
territory from being used as a base of operations for hostile expeditions against friendly States. 18
Domestic statutes may also implement the rights of States under the law of neutrality,
such as the right of belligerents to conduct captures. 19
Domestic neutrality statutes may also help implement a State’s national policy withrespect to neutrality. The law of neutrality permits neutral States a degree of policy discretion
with respect to an armed conflict. 20 Some neutrality treaties recognize such domestic
legislation. 21 Such legislation, however, must be applied impartially among belligerents. 22 In
addition, a State may have an obligation to notify other States of its domestic neutrality

17

For example, 18 U.S.C. § 961 (“Whoever, within the United States, increases or augments the force of any ship ofwar, cruiser, or other armed vessel which, at the time of her arrival within the United States, was a ship of war,cruiser, or armed vessel, in the service of any foreign prince or state, or of any colony, district, or people, or
belonging to the subjects or citizens of any such prince or state, or of any colony, district, or people, the same being
at war with any foreign prince or state, or of any colony, district, or people, with whom the United States is at peace,by adding to the number of guns of such vessel, or by changing those on board of her for guns of a larger caliber, orby adding thereto any equipment solely applicable to war, shall be fined under this title or imprisoned not more than
one year, or both.”).
18

For example, 18 U.S.C. § 960 (“Whoever, within the United States, knowingly begins or sets on foot or provides
or prepares a means for or furnishes the money for, or takes part in, any military or naval expedition or enterprise to
be carried on from thence against the territory or dominion of any foreign prince or state, or of any colony, district,or people with whom the United States is at peace, shall be fined under this title or imprisoned for not more than
three years, or both.”). Refer to § 17.18 (Non-Intervention and Neutral Duties in NIAC).
19

For example, 10 U.S.C. § 7651 (“(a) This chapter applies to all captures of vessels as prize during war byauthority of the United States or adopted and ratified by the President. However, this chapter does not affect theright of the Army or the Air Force, while engaged in hostilities, to capture wherever found and without prize
procedures--(1) enemy property; or (2) neutral property used or transported in violation of the obligations of neutrals
under international law.”).
20

Cordell Hull, Secretary of State, Statement at Department of State Press Conference, Sept. 21, 1939, 1
DEPARTMENT OF STATE BULLETIN 280 (Sept. 23, 1939) (“I think that you will find from a careful analysis of theunderlying principles of the law of neutrality that this Nation, or any neutral nation, has a right during a war tochange its national policies whenever experience shows the necessity for such change for the protection of its
interests and safety. I do not mean to be understood as saying that such action may be taken at the behest or in theinterests of one of the contending belligerents, it being understood, of course, that any measures taken shall apply
impartially to all belligerents.”).

21

For example, 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 5 (“When, according to thedomestic law of the neutral state, the ship may not receive fuel until twenty-four hours after its arrival in port, theperiod of its stay may be extended an equal length of time.”).

22
HAGUE XIII preamble (“Seeing that it is desirable that the Powers should issue detailed enactments to regulate theresults of the attitude of neutrality when adopted by them; Seeing that it is, for neutral Powers, an admitted duty toapply these rules impartially to the several belligerents;”).

949

statutes. 23
15.2 APPLICATION OF THE LAW OF NEUTRALITY
The application of the law of neutrality may depend on a State’s national policy towards
an armed conflict. A State’s obligations under jus ad bellum, including its obligations under theCharter of the United Nations, may alter significantly its rights and duties under the law ofneutrality.
15.2.1 Armed Conflict and the Application of the Law of Neutrality.
15.2.1.1 Application of the Law of Neutrality and the National Policies of States
Towards an Armed Conflict. Whether the law of neutrality governs a State’s relations withbelligerents in an armed conflict may depend on that State’s national policy towards that armed
conflict. 24 For example, if an armed conflict occurs, a State may choose to join the armed
conflict, in which case it would no longer be neutral and the law of war rather than the law ofneutrality would govern its relations with opposing belligerents. 25 Similarly, if two States
conduct hostilities against one another, but refuse to recognize a state of armed conflict, third
States may reject this position and invoke the law of neutrality to protect their rights in relation
to the armed conflict. 26 In addition, outside States that recognize the belligerency of a rebel
faction in a civil war may choose to apply the law of neutrality in their relations with the rebel
faction and with the government. 27
15.2.1.2 Application of Certain Duties of Neutral States Only in Certain
International Armed Conflicts. The duties of neutral States to refrain from certain types of
support to belligerent States do not apply to all armed conflicts to which jus in bello rules apply;
23

HAGUE XIII art. 27 (“The Contracting Powers shall communicate to each other in due course all Laws,
Proclamations, and other enactments regulating in their respective countries the status of belligerent warships intheir ports and waters, by means of a communication addressed to the Government of the Netherlands, andforwarded immediately by that Government to the other Contracting Powers.”).

24Compare § 3.4.1 (Intent-Based Test for Applying Jus in Bello Rules).

25

Michael Bothe, The Law of Neutrality, in DIETER FLECK, THE HANDBOOK OF HUMANITARIAN LAW IN ARMED
CONFLICTS 489 (¶1104) (1999) (“Traditional international law left to each state the sovereign decision of whether, atthe outbreak of a conflict between other states, it would participate or remain neutral. … The distinction between
participation and neutrality is a political, not military, decision. Where the law of neutrality requires decisions to betaken by military command, the government concerned must give political guidance and clarify the position which it
takes in relation to a particular conflict.”).
26

TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 199-200 (“Unlike the law governing the mutual behavior of
combatants, a large part of which may be considered operative in any international armed conflict, the rules
regulating the behavior of neutrals and belligerents remain strictly dependent for their operation upon the existenceof a state of war. It may be, however, that states engaged in armed conflict are unwilling to issue a declaration of
war or even to acknowledge the existence of a state of war. In such situations it would appear that the decision as towhether or not to recognize the existence of a state of war, and thereby to bring into force the law of neutrality, must
rest principally with third states. The attitude of the parties engaged in armed conflict need not prove decisive forthird states, the latter being at liberty either to accept the position of the contestants (i.e., the position that war does
not exist) or to reject this position and to invoke the law of neutrality.”).

27

Refer to § 3.3.3.1 (Recognition by Outside States of a Rebel Faction as a Belligerent in a Civil War).

950

rather, such duties are only triggered in armed conflicts of a certain duration and intensity. 28
However, belligerent States have fundamental duties to respect the sovereignty of neutral Statesin all international armed conflicts. 29
15.2.1.3 Application of Certain Rules in the Law of Neutrality Outside the Context
of International Armed Conflict. Certain parts of the law of neutrality may be viewed as
applicable outside the context of international armed conflict because certain duties that the lawof neutrality imposes are also found in international law applicable in peacetime. For example,
under the Charter of the United Nations, States must respect the sovereignty of other States. 30
Thus, States have duties of non-intervention and neutrality in relation to a non-internationalarmed conflict against a friendly State. 31
15.2.1.4 Proclamations of Neutrality and Other Notifications of Neutral Status. A
formal declaration by nonparticipating States of their intention to adopt a neutral status generally
would not be required for a State to retain its neutral status. 32 However, in light of theimportance of national policy in determining whether the law of neutrality is applicable, States
traditionally issued proclamations of neutrality in order to make known their neutral status in
relation to a conflict. 33 These proclamations of neutrality would state the determination of the28

See Michael Bothe, The Law of Neutrality, in DIETER FLECK, THE HANDBOOK OF HUMANITARIAN LAW IN ARMED
CONFLICTS 490-91 (¶1106) (1999) (“The law of neutrality leads to considerable modifications in the relationships
between the neutral and the belligerent states, for instance as to the admissibility of exports, the sojurn of warshipsof the parties to the conflict in neutral waters, and the control of neutral trade. These fundamental changes are nottriggered by every armed incident, but require an armed conflict of a certain duration and intensity. Thus, thethreshold of application of the law of neutrality is probably higher than that for the rules of the law of war relating to
the conduct of hostilities and the treatment of prisoners, which are applicable also in conflicts of less intensity.”).
29

See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. (¶¶88-89) (“The Court will
now turn to the principle of neutrality which was raised by several States. In the context of the advisory proceedings
brought before the Court by the WHO concerning the Legality of the Use by a State of Nuclear Weapons in Armed
Conflict, the position was put as follows by one State: ‘The principle of neutrality, in its classic sense, was aimed atpreventing the incursion of belligerent forces into neutral territory, or attacks on the persons or ships of neutrals.
Thus: ‘the territory of neutral powers is inviolable’; ‘belligerents are bound to respect the sovereign rights of neutral
powers …’ ‘neutral states have equal interest in having their rights respected by belligerents …’. It is clear,
however, that the principle of neutrality applies with equal force to transborder incursions of armed forces and to thetransborder damage caused to a neutral State by the use of a weapon in a belligerent State.’ The principle socircumscribed is presented as an established part of the customary international law. The Court finds that as in thecase of the principles of humanitarian law applicable in armed conflict, international law leaves no doubt that the
principle of neutrality, whatever its content, which is of a fundamental character similar to that of the humanitarianprinciples and rules, is applicable (subject to the relevant provisions of the United Nations Charter), to allinternational armed conflict, whatever type of weapons might be used.”) (citations omitted) (amendments inoriginal).

30

Refer to § 1.11.3 (Prohibition on Certain Uses of Force).

31

Refer to § 17.18 (Non-Intervention and Neutral Duties in NIAC).

32

Compare § 3.4.2.1 (Reasons for States to Seek to Deny the Existence of Hostilities).

33

For example, Franklin D. Roosevelt, Proclamation: Proclaiming the Neutrality of the United States in the War
Between Germany and France; Poland; and The United Kingdom, India, Australia and New Zealand, Sept. 5, 1939,
54 STAT. 2629 (“AND I do hereby give notice that all nationals of the United States and others who may claim theprotection of this government, who may misconduct themselves in the premises, will do so at their peril, and thatthey can in no wise obtain any protection from the government of the United States against the consequences of their
misconduct.”); Woodrow Wilson, Proclamation, Aug. 18, 1914, 38 STAT. 2015 (“Whereas the United States is in

951

State to observe the duties of neutrality and warn its nationals of the penalties they would incurfor joining or assisting a belligerent State. 34
Although the practice of issuing formal proclamations of neutrality has declined, States
have continued to make public statements of neutrality to indicate their national policy and legal
status in relation to an armed conflict. 35 States may also communicate their neutral statusthrough diplomatic channels or use other means they deem appropriate.
15.2.2 Qualified Neutrality. The United States has taken the position that certain duties
of neutral States may be inapplicable under the doctrine of qualified neutrality.
The law of neutrality has traditionally required neutral States to observe a strict
impartiality between parties to a conflict, regardless of which State was viewed as the aggressor

fact aware of the existence of a state of war between Belgium and Germany; And Whereas the United States is on
terms of friendship and amity with the contending powers, and with the persons inhabiting their several
dominions;”); George Washington, Proclamation of Neutrality, Apr. 22, 1793, reprinted in 32 THE WRITINGS OF
GEORGE WASHINGTON FROM THE ORIGINAL MANUSCRIPT SOURCES 1745-1799, 430-31 (1939) (“Whereas it appears
that a state of war exists between Austria, Prussia, Sardinia, Great Britain, and the United Netherlands, on the one
part, and France on the other; and the duty and interest of the United States require, that they should with sincerity
and good faith adopt and pursue a conduct friendly and impartial towards the belligerent powers: I have therefore
thought fit by these presents, to declare the disposition of the United States to observe the conduct aforesaid towards
those powers respectively; and to exhort and warn the citizens of the United States carefully to avoid all acts andproceedings whatsoever, which may in any manner tend to contravene such disposition. And I do hereby also makeknown, that whosoever of the citizens of the United States shall render himself liable to punishment or forfeiture
under the law of nations, by committing, aiding or abetting hostilities against any of the said powers, or by carrying
to any of them, those articles which are deemed contraband by the modern usage of nations, will not receive theprotection of the United States against such punishment or forfeiture; and further that I have given instructions tothose officers to whom it belongs, to cause prosecutions to be instituted against all persons, who shall, within the
cognizance of the Courts of the United States, violate the law of nations, with respect to the powers at war, or any ofthem.”).
34

1956 FM 27-10 (Change No. 1 1976) ¶514 (“When war occurs, neutral States usually issue proclamations ofneutrality, in which they state their determination to observe the duties of neutrality and warn their nationals of thepenalties they incur for joining or assisting a belligerent.”).
35

For example, FINAL REPORT ON THE PERSIAN GULF WAR 626 (“Iran and Jordan each issued proclamations ofneutrality during the Persian Gulf crisis and, as described, refrained from active participation in the war.”); Ronald
Reagan, Written Responses to Questions Submitted by Al-Qabas of Kuwait, May 12, 1987, 1987-I PUBLIC PAPERS
OF THE PRESIDENTS 529 (“The United States is neutral in the Iran-Iraq war.”); Jimmy Carter, Situation in Iraq andIran: Remarks Concerning the Conflict, Sept. 24, 1980, 1980-81-II PUBLIC PAPERS OF THE PRESIDENTS 1921, 1922(“Let me repeat that we have not been and we will not become involved in the conflict between Iran and Iraq.”);Royal Government of Laos, Statement of Jul. 9, 1962, reprinted in Burma, Cambodia Canada, People’s Republic ofChina, Democratic Republic of Viet-Nam, etc., Declaration on the Neutrality of Laos, Jul. 23, 1962, 456 UNTS 301,
302-03 (“The Royal Government of Laos, Being resolved to follow the path of peace and neutrality in conformity
with the interests and aspirations of the Laotian people, as well as the principles of the Joint Communiqué of Zurichdated June 22, 1961, and of the Geneva Agreements of 1954, in order to build a peaceful, neutral, independent,
democratic, unified and prosperous Laos, Solemnly declares that: … (4) It will not enter into any military alliance orinto any agreement, whether military or otherwise, which is inconsistent with the neutrality of the Kingdom of Laos;it will not allow the establishment of any foreign military base on Laotian territory, nor allow any country to use
Laotian territory for military purposes or for the purposes of interference in the internal affairs of other countries,
nor recognise the protection of any alliance or military coalition, including SEATO;”).

952

in the armed conflict. 36 However, after treaties outlawed war as a matter of national policy, it
was argued that neutral States could discriminate in favor of States that were victims of wars of
aggression. 37 Thus, before its entry into World War II, the United States adopted a position of“qualified neutrality” in which neutral States had the right to support belligerent States that had
been the victim of flagrant and illegal wars of aggression. 38 This position was controversial. 39
15.2.3 The Law of Neutrality Under the Charter of the United Nations. The Charter of
the United Nations may, in certain respects, be understood to be consistent with, and, in otherrespects, to modify, rules reflected in the law of neutrality.
15.2.3.1 Consistency Between the Rules in the Law of Neutrality and the Charterof the United Nations. In certain cases, the rules on the use of force prescribed in the Charter of
the United Nations would be understood to be consistent with rules in the law of neutrality. 40

36

Refer to § 15.3.2 (Neutral Duties -- Abstention From Participation in Hostilities and Impartial Conduct Toward
Contending Parties).
37

LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 221 (§61) (“Similarly, it is open to neutral States as a matterof legal right to give effect to their moral obligation to discriminate against the aggressor and to deny him, in theirdiscretion, the right to exact from neutrals a full measure of impartiality. In some cases neutral States may, having
regard to their own safety and the desire not to be involved in the war, continue to accord impartial treatment to theaggressor. But they need not do so wherever they feel in the position actively to assert the principle, as did theUnited States and other States before entering the Second World War, that the historic foundation of neutrality as anattitude of absolute impartiality has disappeared with the renunciation and the abolition of war as an instrument of
national policy. With regard to States bound by the obligations of the Charter of the United Nations that legal
faculty and that moral obligation assume the clear complexion of a legal duty.”).
38

Address of Robert H. Jackson, Attorney General of the United States, Inter-American Bar Association, Havana,Cuba, March 27, 1941, 35 AJIL 348, 353-54 (1941) (“Present aggressive wars are civil wars against theinternational community. Accordingly, as responsible members of that community, we can treat victims of
aggression in the same way we treat legitimate governments when there is civil strife and a state of insurgency—that
is to say, we are permitted to give to defending governments all the aid we choose. In the light of the flagrancy of
current aggressions, which are apparent on their face, and which all right thinking people recognize for what they
are, the United States and other states are entitled to assert a right of discriminatory action by reason of the fact that,since 1928 so far as it is concerned, the place of war and with it the place of neutrality in the international legal
system have no longer been the same as they were prior to that date.”).
39

See, e.g., Edwin Borchard, War, Neutrality and Non-Belligerency, 35 AJIL 618 (1941) (“At Havana on March 27,
1941, Attorney General Jackson delivered an address designed to prove that as a matter of law the United States was
now obliged to render to England (and presumably others) all aid ‘short of war,’ while ‘at the same time it is thedeclared determination of the government to avoid entry into the war as a belligerent.’ Apparently convinced that
United States military aid to one belligerent alone cannot be justified by the traditional international law, theAttorney General feels obliged first to explode as obsolete the international law conceptions of war and neutrality ofthe past two centuries, culminating in The Hague Conventions, and to maintain that a new international law has now
been revealed in the Covenant of the League of Nations, the Kellogg Pact, the Budapest ‘Articles of Interpretation’of 1934, and the Argentine Anti-War Treaty of 1933, all of which are alleged to make discrimination the new way oflife for neutrals. The legislation of Congress requiring impartiality is not accorded even honorable mention. The‘new international law’ is thus found in the vague and illusory monuments to the myth called ‘collective security,’
which crumbled under the impact of the first European crisis. It should be no surprise to the Attorney General thatmany international lawyers do not share his views on international law or how international law is created, or follow
his unique construction of documents.”).
40

See, e.g., BRUNO SIMMA, THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 673 (1994) (“For the purposeof responding to an ‘armed attack’, the state acting in self-defence is allowed to trespass on foreign territory, even953

For example, a neutral State’s acts of participation in a war of aggression against anothermember of the United Nations would likely violate not only its duties under the law ofneutrality, 41 but also the Charter’s prohibition on the unlawful use of force. 42
In the past, the law of neutrality was often viewed as not regulating a State’s decision as
to whether to adopt a position of neutrality or hostility towards another State. 43 Thus, under thisview, the requirements of the law of neutrality could have been avoided by neutral States if theydecided to enter the war or by belligerent States if they chose to declare war on a neutral. 44 The
Charter of the United Nations clarifies that such decisions to resort to force may not be madewithout a proper legal basis. 45 Thus, insofar as provisions of the Charter are coincident withcertain rules in the law of neutrality, such requirements of the Charter may not be evaded in theway that arguably certain requirements of the law of neutrality previously could have been
evaded.
15.2.3.2 Modification of Rules in the Law of Neutrality. The Charter of theUnited Nations and decisions by the U.N. Security Council may, in certain circumstances,when the attack cannot be attributed to the state from whose territory it is proceeding. It does not follow from thefact that the right of self-defence pursuant to Art. 51 is restricted to the case of an ‘armed attack’ that defensive
measures may only affect the ‘attacker’. Thus it is compatible with Art. 51 and the laws of neutrality when awarring state fights hostile armed forces undertaking an attack from neutral territory on the territory of the neutral
state, provided that the state concerned is either unwilling or unable to curb the ongoing violation of its neutrality.”).
41

Refer to § 15.3.2 (Neutral Duties -- Abstention From Participation in Hostilities and Impartial Conduct Toward
Contending Parties).
42

Refer to § 1.11.3 (Prohibition on Certain Uses of Force).

43

See Editorial Comment: The Hague Conventions and the Neutrality of Belgium and Luxemburg, 9 AJIL 959(1915) (“[Articles of the Hague V] do not, however, guarantee neutrality, nor do they prevent a state from declaring
war against a state wishing to remain neutral, which thus becomes a belligerent and loses the benefit of theconvention. If the Hague conventions were violated by Germany in this matter it would appear to be a violation of
the spirit, not of the letter, and indeed it is difficult to maintain that there was a violation even of the spirit, becauseinternational law in its present development apparently allows nations to go to war whenever they please, and theHague conventions do not modify or abridge this provision of the law of nations.”).
44

See John Delatre Falconbridge, The Right of a Belligerent to Make War Upon a Neutral, 4 TRANSACTIONS OF THE
GROTIUS SOCIETY 204, 209-11 (1918) (“The fifth [Hague] convention [of 1907] does not relate to the question of
the right to convert the relation of belligerent and neutral into that of belligerent and belligerent, but simply defines
the rights and obligations incidental to the former relation. … The fundamental proposition which has been left
untouched by The Hague Conventions is that by the existing rules of international law one State may declare war
against another State without any justifiable casus belli, and it commits no breach of law in so doing if it complies
with the requirements relating to the declaration of war. Its action may be immoral, but it is not illegal unless there
is a treaty forbidding such action (as there was in the case of Belgium).”).
45

See Michael Bothe, The Law of Neutrality, in DIETER FLECK, THE HANDBOOK OF HUMANITARIAN LAW IN ARMED
CONFLICTS 489 (¶1104) (1999) (“Traditional international law left to each state the sovereign decision of whether, atthe outbreak of a conflict between other states, it would participate or remain neutral. … At the outbreak of aconflict between two other states, a state is still free to participate or to remain neutral. Modern international law,however, limits the freedom of decision as to which side on which a state may become involved. Support granted toan aggressor is illegal, participation on the side of the victim of aggression, being collective self-defence, ispermissible.”).

954

qualify rights and obligations under the law of neutrality. 46
For example, under the Charter of the United Nations, States may have obligations to
support military operations that have been authorized by the U.N. Security Council. 47 In suchcircumstances, the obligations under the Charter would prevail over the obligations under the lawof neutrality. 48 For example, a State that is not participating in the conflict that received in its
territory military forces operating pursuant to a U.N. Security Council resolution might berequired to return them, rather than to intern them under the law of neutrality. 49 Moreover, U.N.
Security Council resolutions may obligate States to take measures that would not be required byneutrality law. For example, the U.N. Security Council may require States to impose restrictions
on private conduct within their jurisdiction, such as to prevent private individuals from selling
weapons to certain States or non-State armed groups. 50
15.2.4 Neutrality Under Regional and Collective Self-Defense Arrangements. Regionaland collective self-defense agreements may affect States’ rights to maintain a neutral statusbecause the States may be required to provide assistance or take military action in collective selfdefense until the U.N. Security Council has taken measures necessary to maintain international
peace and security. 51 The obligations by a State under such an agreement may prevail over the
46

1956 FM 27-10 (Change No. 1 1976) ¶513 (“Although these provisions of the Charter have not made it
impossible for a State to remain neutral, the obligations which the Charter imposes have to a certain extent qualified
the rights of States in this respect.”).
47

Refer to § 1.11.2.1 (U.N. Member State Obligations With Respect to U.N. Security Council Decisions).

48

For example, FINAL REPORT ON THE PERSIAN GULF WAR 626 (“Neutrality in the Persian Gulf War was controlledin part by the 1907 Hague V Convention; but traditional concepts of neutral rights and duties are substantiallymodified when, as in this case, the United Nations authorizes collective action against an aggressor nation. It was
the US position during the Persian Gulf crisis that, regardless of assertions of neutrality, all nations were obligated to
avoid hindrance of Coalition operations undertaken pursuant to, or in conjunction with, UNSC decisions, and toprovide whatever assistance possible. By virtue of UNSC Resolution 678 (29 November), members were requested‘to provide appropriate support for the actions undertaken’ by nations pursuant to its authorization of use of allnecessary means to uphold and implement prior resolutions. The language of UNSC Resolution 678 is consistent
with Articles 2(5), 2(6), 25, and 49 of the UN Charter.”).
49

FINAL REPORT ON THE PERSIAN GULF WAR 628 (“Although the situation never arose, the United States advised
Iran that, in light of UNSC Resolution 678, Iran would be obligated to return downed Coalition aircraft and aircrew,
rather than intern them. This illustrates the modified nature of neutrality in these circumstances. It also was the US
position that entry into Iranian (or Jordanian) airspace to rescue downed aviators would be consistent with its
international obligations as a belligerent, particularly in light of Resolution 678.”).

50

For example, U.N. SECURITY COUNCIL RESOLUTION 1970, U.N. Doc. S/RES/1970, ¶9 (Feb. 26, 2011) (“Decides
that all Member States shall immediately take the necessary measures to prevent the direct or indirect supply, sale ortransfer to the Libyan Arab Jamahiriya, from or through their territories or by their nationals, or using their flag
vessels or aircraft, of arms and related materiel of all types, including weapons and ammunition, military vehicles
and equipment, paramilitary equipment, and spare parts for the aforementioned, and technical assistance, training,financial or other assistance, related to military activities or the provision, maintenance or use of any arms andrelated materiel, including the provision of armed mercenary personnel whether or not originating in theirterritories,”); U.N. SECURITY COUNCIL RESOLUTION 713, U.N. Doc S/RES/713 ¶6 (Sept. 25, 1991) (“Decides, under
Chapter VII of the Charter of the United Nations, that all States shall, for the purposes of establishing peace andstability in Yugoslavia, immediately implement a general and complete embargo on all deliveries of weapons andmilitary equipment to Yugoslavia until the Council decides otherwise following consultation between the SecretaryGeneral and the Government of Yugoslavia;”).
51

Refer to § 1.11.5.5 (Right of Collective Self-Defense).

955

State’s right under the customary law of neutrality to be impartial among the belligerents and toabstain from the armed conflict.
15.3 OVERVIEW OF THE NEUTRALITY LAW’S FRAMEWORK OF RECIPROCAL RIGHTS AND DUTIESThe law of neutrality establishes a framework of reciprocal rights and duties for neutrals
and belligerents.
15.3.1 Neutral Rights. Belligerent States are bound to respect the sovereign rights ofneutral States (e.g., the inviolability of a neutral State’s territory). 52 The exercise by a neutral
State of its rights under the law of neutrality may not be considered an unfriendly act by either ofthe belligerents. 53
15.3.1.1 Inviolability of Neutral Territory - Prohibition on Unauthorized Entry.
The territory of neutral States is inviolable. 54 The inviolability of neutral territory prohibits any
unauthorized entry into the territory of a neutral State, its territorial waters, or the airspace oversuch areas by armed forces or instrumentalities of war. 55
15.3.1.2 Inviolability of Neutral Territory - Prohibition on Hostile Acts or Other
Violations of Neutrality. The inviolability of neutral territory also requires belligerent forces torefrain from committing hostile acts or other acts that, if knowingly permitted by a neutral State,would constitute a violation of neutrality in neutral territory (including neutral lands, neutral
waters, and neutral airspace). 56 For example, belligerent warships may not exercise thebelligerent right of visit and search, and may not capture vessels in neutral waters. 57
However, belligerent forces may use force in self-defense or as part of self-help
enforcement actions against enemy forces that have committed violations of neutrality when the

52

HAGUE XIII art. 1 (“Belligerents are bound to respect the sovereign rights of neutral Powers and to abstain, in
neutral territory or neutral waters, from any act which would, if knowingly permitted by any Power, constitute a
violation of neutrality.”); 1956 FM 27-10 (Change No. 1 1976) ¶512 (“It is the duty of belligerents to respect the
territory and rights of neutral States.”).
53

HAGUE XIII art. 26 (“The exercise by a neutral Power of the rights laid down in the present convention can underno circumstances be considered as an unfriendly act by one or other belligerent who has accepted the Articles
relating thereto.”).

54

HAGUE V art. 1 (“The territory of neutral Powers is inviolable.”).

55

1956 FM 27-10 (Change No. 1 1976) ¶515 (“b. Application of Rule. The foregoing rule prohibits any
unauthorized entry into the territory of a neutral State, its territorial waters, or the airspace over such areas by troops
or instrumentalities of war.”).
56

1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 3 (“Belligerent states are obligated to refrain fromperforming acts of war in neutral waters or other acts which may constitute on the part of the State that tolerates
them, a violation of neutrality.”); HAGUE XIII art. 1 (“Belligerents are bound to respect the sovereign rights ofneutral Powers and to abstain, in neutral territory or neutral waters, from any act which would, if knowingly
permitted by any Power, constitute a violation of neutrality.”).
57

Refer to § 15.13.3 (Where Belligerents May Not Exercise the Right of Visit and Search); § 15.15 (Capture of
Neutral Vessels and Aircraft).

956

neutral State is unwilling or unable to address such violations. 58
15.3.2 Neutral Duties -- Abstention From Participation in Hostilities and Impartial
Conduct Toward Contending Parties. The principal duties of a neutral State are to abstain fromany participation in the conflict and to be impartial in conduct towards contending parties. 59
Certain other duties may be viewed as a consequence of these principal duties, butdifferent publicists have categorized these duties differently. For example, the duty of a neutral
State to refrain from supporting one side in the conflict may be viewed as a function of its duty
to abstain from participation in hostilities. 60 On the other hand, the duty of a neutral State torefrain from supporting one side in the conflict may also be viewed as a result of its duty of
impartiality. 61
The duties of a neutral State may also be classified in terms of: (1) abstention(obligations to refrain from taking certain actions); (2) prevention (obligations to take certain
actions); and (3) acquiescence (obligations to accept certain actions by belligerents). 62
15.3.2.1 Duty to Refrain From Providing War-Related Goods and Services to
Belligerents. Neutral States have an obligation to refrain from providing war-related goods andservices to belligerents. 63 A neutral State is prohibited from supplying a belligerent State in any
manner, either directly or indirectly, with warships, ammunition, or war material of any kind. 64

58

Refer to § 15.4.2 (Belligerent Use of Self-Help When Neutral States Are Unable or Unwilling to Prevent
Violations of Neutrality).
59

The Three Friends, 166 U.S. 1, 52 (1897) (“Neutrality, strictly speaking, consists in abstinence from any
participation in a public, private or civil war, and in impartiality of conduct toward both parties, … .”).
60

Michael Bothe, The Law of Neutrality, in DIETER FLECK, THE HANDBOOK OF HUMANITARIAN LAW IN ARMED
CONFLICTS 485 (¶1101) (1999) (“The duty of non-participation means, above all, that the state must abstain fromsupporting a party to the conflict. This duty not to support also means that the neutral state is under a duty not toallow one party to the conflict to use the resources of the neutral state against the will of the opponent. Therefore,
the defence of neutrality is part of the duty of non-participation.”).
61

LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 654 (§294) (“Since neutrality is an attitude of impartiality, it
excludes such assistance and succor to one of the belligerents as is detrimental to the other, and, further, suchinjuries to the one as benefit the other. But it requires, on the other hand, active measures from neutral States. For
neutrals must prevent belligerents from making use of their neutral territories, and of their resources, for military andnaval purposes during the war.”).
62

TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 203 footnote 14 (“The duties of a neutral state may also beclassified—and frequently are so classified—as duties of abstention, prevention and acquiesence [sic] (or toleration).
Duties of abstention refer to acts the neutral state itself must refrain from performing; duties of prevention refer toacts the commission of which within its jurisdiction the neutral is obligated to prevent; and, finally, duties ofacquiescence have reference to neutral obligations to permit belligerent measures of repression against neutral
subjects found rendering certain acts of assistance to an enemy.”).
63

Philander C. Knox, Attorney General, Neutrality—Military Supplies—Horses, Apr. 4, 1902, 24 OPINIONS OF THE
ATTORNEY GENERAL 15, 18 (1903) (“One of the rules of international law which seems to be now fully agreed uponis that a neutral nation shall not give aid to one of the belligerents in the carrying on of the war.”).
64

HAGUE XIII art. 6 (“The supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power,of war-ships, ammunition, or war material of any kind whatever, is forbidden.”).

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The neutral State is also prohibited from providing money or loans to a belligerent State. 65
A neutral State also has a duty to refrain from placing its various governmental agencies
at the disposal of a belligerent in such a way as to aid it directly or indirectly in the prosecutionof the war. 66
Although a neutral State may not supply war-related goods and services to belligerents, aneutral State is not called upon to prevent the export or transport, on behalf of one or other of thebelligerents, of arms, munitions, or anything that can be of use to an armed force. 67 Commercial
transactions between belligerent States and neutral corporations, companies, citizens, or persons
resident in a neutral State are not prohibited. 68 A belligerent State may purchase from suchcorporations, companies, citizens, or persons supplies, munitions, or anything that may be of use
to an armed force, which can be exported or transported without involving the neutral State. 69
The supply of services and goods to a belligerent State, however, must not convert neutral
territory into a base of operations. 70
If a neutral State prohibits the export or transport of arms, munitions, or anything that canbe of use to an armed force, every measure of restriction or prohibition taken by a neutral Statein regard to the provision of such supplies or munitions must be impartially applied by it to all

65

1928 PAN AMERICAN NEUTRALITY CONVENTION art. 16 (“The neutral state is forbidden: a) To deliver to thebelligerent, directly or indirectly, or for any reason whatever, ships of war, munitions or any other war material; b)
To grant it loans, or to open credits for it during the duration of war. Credits that a neutral state may give tofacilitate the sale or exportation of its food products and raw materials are not included in this prohibition.”).
66

TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 208 (“As Hyde has observed, ‘the duty to abstain fromgiving aid is a broad one and covers a vast field of governmental activities;’ for in addition to the prohibition against
supplying belligerents with war materials of any kind the neutral is obligated, in general, ‘to abstain from placing its
various governmental agencies at the disposal of a belligerent in such a way as to aid it directly or indirectly in theprosecution of the war.’ Thus in naval warfare, the public vessels of a neutral state must refrain from rendering
services of any kind to belligerent naval units at sea.”).
67

1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 22 (“Neutral states are not obligated to preventthe export or transit at the expense of any one of the belligerents of arms, munitions and in general of anythingwhich may be useful to their military forces.”); HAGUE V art. 7 (“A neutral Power is not called upon to prevent theexport or transport, on behalf of one or other of the belligerents, of arms, munitions of war, or, in general, of
anything which can be of use to an army or a fleet.”); HAGUE XIII art. 7 (“A neutral Power is not bound to preventthe export or transit, for the use of either belligerent, of arms, ammunitions, or, in general, of anything which could
be of use to an army or fleet.”).
68

1956 FM 27-10 (Change No. 1 1976) ¶527 (“Commercial transactions with belligerents by neutral corporations,companies, citizens, or persons resident in neutral territory are not prohibited.”); 1928 PAN AMERICAN MARITIMENEUTRALITY CONVENTION art. 15 (“Of the acts of assistance coming from the neutral states, and the acts ofcommerce on the part of individuals, only the first are contrary to neutrality.”).
69

1956 FM 27-10 (Change No. 1 1976) ¶527 (“A belligerent may purchase from such persons supplies, munitions,or anything that may be of use to an army or fleet, which can be exported or transported without involving theneutral State.”).
70

Refer to § 15.5.1 (Prohibition on Outfitting Hostile Expeditions With Supplies and Services for a Belligerent From
Neutral Territory).

958

belligerent States. 71
15.3.2.2 Duty to Prevent Violations of Neutrality Within Its Jurisdiction. A
neutral State has certain obligations to prevent violations of its neutrality within its territory. A
neutral State has an obligation to prevent violations of its neutrality committed by belligerent
forces. 72 A neutral State also has an obligation to prevent violations of its neutrality committed
by persons within its jurisdiction. 73
15.3.2.3 Public Expressions of Sympathy Are Not Violations of Neutrality. Public
expressions of sympathy for one belligerent or disapproval of another belligerent are notviolations of duties of neutrality. 74
15.3.2.4 Authorized Humanitarian Assistance Is Not a Violation of Neutrality.
Humanitarian assistance given in accordance with international law is also not a violation ofduties of neutrality. 75 For example, a neutral State’s performing of the role of the Protecting
Power in accordance with the 1949 Geneva Conventions is not regarded as unneutral conduct. 76
15.3.3 Correlative or Reciprocal Nature of Rights and Duties Under the Law of
Neutrality. The rights and duties of belligerents and neutrals under the law of neutrality may be
71

HAGUE V art. 9 (“Every measure of restriction or prohibition taken by a neutral Power in regard to the mattersreferred to in Articles 7 and 8 must be impartially applied by it to both belligerents.”).

72

HAGUE XIII art. 25 (“A neutral Power is bound to exercise such surveillance as the means at its disposal allow toprevent any violation of the provisions of the above Articles occurring in its ports or roadsteads or in its waters.”);HAGUE V art. 5 (“A neutral Power must not allow any of the acts referred to in Articles 2 to 4 to occur on its
territory. It is not called upon to punish acts in violation of its neutrality unless the said acts have been committed
on its own territory.”).
73

See, e.g., Consultative Meeting of Foreign Ministers of the American Republics, Final Act of the Meeting: V
General Declaration of Neutrality of the American Republics, ¶3, Oct. 3, 1939, 1 DEPARTMENT OF STATE BULLETIN
326, 327 (Oct. 7, 1939) (The American Republics resolve “[t]o declare that with regard to their status as neutrals,
there exist certain standards recognized by the American Republics applicable in these circumstances and that inaccordance with them they: ... (b) Shall prevent, in accordance with their internal legislations, the inhabitants of theirterritories from engaging in activities capable of affecting the neutral status of the American Republics.”); Treaty
between the United States and Great Britain, art. 6, May 8, 1871, 17 STAT. 863, 865 (“A neutral Government isbound – … Thirdly, to exercise due diligence in its own ports and waters, and, as to all persons within its
jurisdiction, to prevent any violation of the foregoing obligations and duties.”).
74

LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 655 (§294) (“The required attitude of impartiality is notincompatible with sympathy with one belligerent, and disapproval of the other, so long as these feelings do not findexpression in actions violating impartiality. Thus, not only public opinion and the press of a neutral State, but also
its Government, may show their sympathy to one party or another without violating neutrality.”).

75

LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 655 (§294) (“Moreover, acts of humanity on the part ofneutrals and their subjects, such as the sending to military hospitals of doctors, medicine, provisions, dressing
material, and the like, and the sending of clothes and money to prisoners of war, can never be construed as acts ofpartiality, even if these comforts are provided for the wounded and the prisoners of one belligerent only.”).

76

LESLIE C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 269 (2nd ed., 2000) (“Frequently, as has been
seen in the discussion concerning protecting powers, a neutral power is appointed to represent the interests of one
belligerent in the territory of the adverse party or for some of its nationals to be appointed to the Fact Finding
Commission called for in Protocol I in relation to the investigation of alleged breaches of the law of armed conflict.
In neither case can a belligerent suggest that such action is in breach of the obligations of neutrality.”).

959

understood as correlative or reciprocal.
The duties of neutrals often correspond to rights of belligerents, and rights of neutrals
often correspond to the duties of belligerents. 77 For example, the duty of a neutral to abstain
from hostilities is also a right of a belligerent not to have its adversary aided in hostilities by theneutral State. The right of a neutral State to have its territory be inviolable is also a duty ofbelligerent States to avoid conducting hostilities in neutral territory.
Similarly, the ability of a neutral to assert its rights may depend on whether it has
fulfilled its corresponding neutral duties. 78 For example, the right of a neutral State to have its
territory be inviolable may not be asserted to the extent it has failed in its duty to ensure that its
territory is not used as a base of operations by a belligerent.
In light of the correlative nature of the rights and duties of belligerents and neutrals under
the law of neutrality, a single rule in the law of neutrality may reflect multiple rights and duties
of both belligerents and neutrals. For example, hostile acts are not to be committed on neutral
territory. This rule involves the right of the neutral State for its territory to be inviolable, andinvolves a duty on the part of the neutral State to prevent such acts. This rule also reflects a dutyof the belligerent State to refrain from such acts, and a right of the belligerent State not to havesuch acts conducted by an opposing belligerent.
15.4 REMEDIES FOR VIOLATIONS OF NEUTRALITY LAW
15.4.1 Distinction Between Violations of Neutral Duties and the End of Neutral Status.
Violations of neutrality by belligerent or neutral States should be distinguished from the end of aState’s neutral status. Rather, whether violations of neutrality result in the end of the neutral
status of a State may depend on the national policies of that State and the belligerent States. 79
Acts that are incompatible with the relationship between the neutral State and abelligerent State under the law of neutrality need not end the neutral State’s neutrality and bringthat State into the conflict as a belligerent. For example, despite Vichy France’s violations of its
neutral duties during World War II and despite the Allied invasion of French North Africa,
77

TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 203 footnote 14 (“It is also helpful to observe that the duties
of a neutral correspond to the rights of a belligerent, and that the rights of a neutral correspond to the duties of abelligerent. The neutral’s duty to observe a strict impartiality corresponds to the belligerent’s right to demand
impartiality on the part of the neutral. At the same time, the neutral has a right to demand that the belligerent will
act toward it in such a manner as to respect its position of impartiality, and there is no question but that the
belligerent is under a duty to do so.”).
78

G. SHERSTON BAKER, II HALLECK’S INTERNATIONAL LAW 305 (28.1) (1908) (“The rights and duties of neutrality
are correlative, and the former cannot be claimed, unless the latter are faithfully performed. If the neutral State failto fulfil the obligations of neutrality, it cannot claim the privileges and exemptions incident to that condition. The
rule is equally applicable to the citizens and subjects of a neutral State. So long as they faithfully perform the duties
of neutrality, they are entitled to the rights and immunities of that condition. But for every violation of neutral
duties, they are liable to the punishment of being treated in their persons or property as public enemies of theoffended belligerent.”).

79

Refer to § 15.2.1.1 (Application of the Law of Neutrality and the National Policies of States Towards an Armed
Conflict).

960

diplomatic relations persisted between the United States and France during World War II. 80
15.4.2 Belligerent Use of Self-Help When Neutral States Are Unable or Unwilling toPrevent Violations of Neutrality. Should the neutral State be unable, or fail for any reason, toprevent violations of its neutrality by the forces of one belligerent entering or passing through its
territory (including its lands, waters, and airspace), the other belligerent State may be justified inattacking the enemy forces on the neutral State’s territory. 81 This view has been reflected in the
military manuals of other States. 82 For example, consistent with the jus ad bellum requirements
for self-defense, belligerent forces may act in self-defense when attacked or threatened with
attack from enemy forces unlawfully present in neutral territory, 83 including by taking
appropriate action to counter the use of neutral territory as a base of enemy operations when the80

DWIGHT D. EISENHOWER, CRUSADE IN EUROPE 86-88 (1997) (“Vichy France was a neutral country and during theentire period of the war the United States had maintained diplomatic connection with the French Government.
Never, in all its history, had the United States been a party to an unprovoked attack upon a neutral country and eventhough Vichy was avowedly collaborating with Hitler, there is no doubt that American political leaders regarded the
projected operation, from this viewpoint, with considerable distaste. … The Allied invasion of Africa was a mostpeculiar venture of armed forces in the field of international politics; we were invading a neutral country to create afriend.”).
81

1956 FM 27-10 (Change No. 1 1976) ¶520 (“Should the neutral State be unable, or fail for any reason, to prevent
violations of its neutrality by the troops of one belligerent entering or passing through its territory, the otherbelligerent State may be justified in attacking the enemy forces on this territory.”).
82

2004 UK MANUAL ¶1.43a (“Neutral states must refrain from allowing their territory to be used by belligerent
states for the purposes of military operations. If a neutral state is unable or unwilling to prevent the use of its
territory for the purposes of such military operations, a belligerent state may become entitled to use force in selfdefence against enemy forces operating from the territory of that neutral state. Whether or not they are so entitledwill depend on the ordinary rules of the jus ad bellum.”); 2006 AUSTRALIAN MANUAL ¶11.8 (“As a general rule ofinternational law, all acts of hostility in neutral territory, including neutral land, neutral waters and neutral airspaceare prohibited. A neutral state has a duty to prevent the use of its territory as a sanctuary or a base of operations by
the belligerent forces of any side. If the neutral state is unable or unwilling to enforce effectively its right ofinviolability, an aggrieved belligerent may resort to acts of hostility in neutral territory against enemy forces,
including warships and military aircraft, making unlawful use of that territory. Belligerents are also authorised toact in self-defence when attacked or threatened with attack while in neutral territory or when attacked or threatened
from neutral territory”); 2001 CANADIAN MANUAL ¶1304(3) (“A neutral state is permitted to resist any attemptedviolation of its borders by force and such resistance does not make the neutral a party to the conflict. If enemy
forces enter neutral such territory and the neutral state is unwilling or unable to intern or expel them, the opposing
party is entitled to attack them there, or to demand compensation from the neutral for this breach of neutrality.”);2002 GERMAN COMMANDER’S HANDBOOK: LEGAL BASES FOR THE OPERATIONS OF NAVAL FORCES ¶232 (“On the
one hand, the parties to the conflict are obliged to respect the inviolability of neural [sic] territory, neutralinternal waters, neutral territorial seas and the neutral airspace above these areas. Within and above these areas
all hostilities, that is the use of armed force and of other measures of maritime war (including measures based on thelaw of prize) are prohibited. There is one exception to this principle which applies to measures of self-defence,that is the event that one of the parties to the conflict is attacked or endangered to be attacked in these areas. On theother hand, a neutral state is obliged to prevent the parties to the conflict from misusing these areas as sanctuary orbase of operations. If it is unwilling or unable to do so, the other party to the conflict is entitled to take allmeasures necessary to terminate the misuse of neutral territory or neutral waters.”).
83

2007 NWP 1-14M ¶7.3 (“If the neutral nation is unable or unwilling to enforce effectively its right ofinviolability, an aggrieved belligerent may take such acts as are necessary in neutral territory to counter the activities
of enemy forces, including warships and military aircraft, making unlawful use of that territory. Belligerents arealso authorized to act in self-defense when attacked or threatened with attack while in neutral territory or when
attacked or threatened from neutral territory.”).

961

neutral State is unwilling or unable to prevent such violations. 84
15.4.3 Neutral State’s Use of Force to Defend Its Neutrality. A neutral State may also
engage in self-help to prevent violations of neutrality on its territory. Such self-help is also an
obligation of the neutral State. 85
The fact that a neutral State resists, even by force, attempts to violate its neutrality cannot
be regarded as a hostile act. 86 For example, a State whose territory is adjacent to a theater of war
normally mobilizes a portion of its forces to prevent the forces of either belligerent from entering
its territory, to intern such persons as may be permitted to enter, and generally to carry out its
duties of neutrality. 87 Such military operations are not regarded as hostile acts against the
belligerent State.
15.4.4 Redress of Certain Violations of Neutrality. In addition to the obligations toprevent violations of neutrality, a State may also have obligations to redress violations ofneutrality that have been committed.
For example, violations of the law of neutrality may result in liability for payment ofdamages in certain cases. 88 As a case in point, if harm is caused in a neutral State by the84

For example, Richard Nixon, Address to the Nation on the Situation in Southeast Asia, Apr. 30, 1970, 1970
PUBLIC PAPERS OF THE PRESIDENTS 405, 406-08 (“American policy since then has been to scrupulously respect theneutrality of the Cambodian people. … North Vietnam, however, has not respected that neutrality. For the past 5
years—as indicated on this map that you see here—North Vietnam has occupied military sanctuaries all along theCambodian frontier with South Vietnam. Some of these extend up to 20 miles into Cambodia. The sanctuaries are
in red and, as you note, they are on both sides of the border. They are used for hit and run attacks on American andSouth Vietnamese forces in South Vietnam. These Communist occupied territories contain major base camps,
training sites, logistics facilities, weapons and ammunition factories, airstrips, and prisoner-of-war compounds. …
[T]his is the decision I have made. In cooperation with the armed forces of South Vietnam, attacks are being
launched this week to clean out major enemy sanctuaries on the Cambodian-Vietnam border. … This is not aninvasion of Cambodia. The areas in which these attacks will be launched are completely occupied and controlled by
North Vietnamese forces. Our purpose is not to occupy the areas. Once enemy forces are driven out of thesesanctuaries and once their military supplies are destroyed, we will withdraw.”); SPAIGHT, AIR POWER AND WAR
RIGHTS 434 (“Justifiable entry of neutral jurisdiction.—The international law of neutrality is based on theprinciple that neutral States exclude both belligerent parties from entry into or passage through their territory. If thatcondition is not fulfilled, to advantage of one party and the detriment of the other, the latter is entitled, after protest,
to take the action necessary to protect his interests. He is entitled to follow his enemy into neutral jurisdiction and to
attack him there. It was for this reasons that Japan was able to justify her action in 1904 in cutting out the Russian
cruiser Reshitelni from the Chinese harbor of Chifu when it became apparent that China was unable or unwilling todisarm the vessel in accordance with the requirements of international law. It was on the same principle that the
British intervention in Syria in 1941 was justifiable. The Vichy authorities there were allowing German aircraft to
use the Syrian airfields, and such use was particularly damaging to British interests at that time, in view of the revolt
in Iraq.”).
85

Refer to § 15.3.2.2 (Duty to Prevent Violations of Neutrality Within Its Jurisdiction).

86

HAGUE V art. 10 (“The fact of a neutral Power resisting, even by force, attempts to violate its neutrality cannot be
regarded as a hostile act.”).

87

1956 FM 27-10 (Change No. 1 1976) ¶519 (“In order to protect its neutrality, a State whose territory is adjacent toa theater of war normally mobilizes a portion of its forces to prevent troops of either belligerent from entering its
territory, to intern such as may be permitted to enter, and generally to carry out its duties of neutrality.”).
88

Refer to § 18.16 (Compensation for Violations of the Law of War).

962

unauthorized entry of belligerent forces, the offending State may be required, according to thecircumstances, to respond in damages. 89
Similarly, when a ship has been captured in the territorial waters of a neutral State, theneutral State must employ, if the prize is still within its jurisdiction, the means at its disposal torelease the prize with its officers and crew, and to intern the prize crew. 90 If the prize is nolonger in the jurisdiction of the neutral power, the captor State, on the demand of the neutral
State, must liberate the prize with its officers and crew. 91 The neutral State has a duty to makethis demand. 92
15.5 PROHIBITION ON THE USE OF NEUTRAL TERRITORY AS A BASE OF OPERATIONS
Neutral territory (including neutral lands, waters, and airspace) may not be used as a baseof operations against belligerent forces. 93 For example, belligerent States are forbidden to use aneutral State’s ports and waters as a base of naval operations against their adversaries, 94 and aneutral State has a corresponding obligation to prevent such use. 95

891956 FM 27-10 (Change No. 1 1976) ¶515 (“If harm is caused in a neutral State by the unauthorized entry of abelligerent, the offending State may be required, according to the circumstances, to respond in damages.”).
90

HAGUE XIII art. 3 (“When a ship has been captured in the territorial waters of a neutral Power, this Power must
employ, if the prize is still within its jurisdiction, the means at its disposal to release the prize with its officers andcrew, and to intern the prize crew.”).

91

HAGUE XIII art. 3 (“If the prize is not in the jurisdiction of the neutral power, the captor Government, on the
demand of that Power, must liberate the prize with its officers and crew.”).

92

William H. Taft, Proclamation Regarding the Hague XIII, Feb. 28, 1910, 36 STAT. 2415, 2438 (“And whereas the
Senate of the United States of America by its resolution of April 17, 1908, (two-thirds of the Senators present
concurring therein) did advise and consent to the adherence by the United States to the said Convention with thereservation and exclusion of its Article 23 and with the understanding that the last clause of Article 3 of the said
Convention implies the duty of a neutral power to make the demand therein mentioned for the return of a ship
captured within the neutral jurisdiction and no longer within that jurisdiction; And whereas the President of theUnited States of America, in pursuance of and in conformity with the aforesaid advice and consent of the Senate,
did, on the 23rd day of February, 1909, declare the adherence of the United States to the said Convention;”).

93

Consultative Meeting of Foreign Ministers of the American Republics, Final Act of the Meeting: V General
Declaration of Neutrality of the American Republics, ¶3, Oct. 3, 1939, 1 DEPARTMENT OF STATE BULLETIN 326, 327(Oct. 7, 1939) (The American Republics resolve “[t]o declare that with regard to their status as neutrals, there exist
certain standards recognized by the American Republics applicable in these circumstances and that in accordancewith them they: (a) Shall prevent their respective terrestrial, maritime and aerial territories from being utilized asbases of belligerent operations.”); 1955 NWIP 10-2 ¶442 (“Belligerents are forbidden to use neutral territory,
territorial sea, or air space as a base for hostile operations.”).
94

1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 4 (“Under the terms of the preceding article, abelligerent state is forbidden: a) To make use of neutral waters as a base of naval operations against the enemy, or
to renew or augment military supplies or the armament of its ships, or to complete the equipment of the latter;”);HAGUE XIII art. 5 (“Belligerents are forbidden to use neutral ports and waters as a base of naval operations against
their adversaries, and in particular to erect wireless telegraphy stations or any apparatus for the purpose ofcommunicating with the belligerent forces on land or sea.”).
95

See, e.g., Treaty between the United States and Great Britain, art. 6, May 8, 1871, 17 STAT. 863, 865 (“A neutral
Government is bound – Secondly, not to permit or suffer either belligerent to make use of its ports or waters as thebase of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or

963

The prohibition against the use of neutral territory as a base of operations extends to any
hostile expeditions against a belligerent State, and thus includes such expeditions by non-State
actors. 96 For example, a neutral State has an obligation to prevent the arming of any vessel
within its jurisdiction that is intended to engage in hostile operations against a State with which it
is at peace and to prevent the departure from its jurisdiction of any vessel intended to engage inhostile operations that has been adapted entirely or partly within such jurisdiction for use inwar. 97
The prohibition on the use of neutral territory as a base of operations includes
prohibitions against (1) outfitting hostile expeditions with supplies and services; (2) recruiting
forces in neutral territory; (3) establishing military communications facilities in neutral territory;and (4) moving belligerent forces or convoys of military supplies on land.
15.5.1 Prohibition on Outfitting Hostile Expeditions With Supplies and Services for a
Belligerent From Neutral Territory. It is forbidden to permit the use of the neutral State’s
territory for the fitting out of hostile expeditions. 98 As a case in point, a belligerent State’s
warships may not make use of a neutral State’s ports, roadsteads, and territorial waters to
replenish or increase their supplies of war materials or their armaments, or for completing theircrews. 99
15.5.2 Prohibition Against Recruiting and Forming Corps of Combatants. Units of
combatants may not be formed nor may recruiting agencies be established on the territory of aneutral State to assist a belligerent State. 100 This means that the establishment of recruiting
agencies, the enlistment of personnel, the formation and organization of hostile expeditions on aneutral State’s territory, and the passage across its frontiers of organized bodies of personnelarms, or the recruitment of men.”). Refer to § 15.3.2.2 (Duty to Prevent Violations of Neutrality Within Its
Jurisdiction).
96

Refer to § 17.18.1 (Duty of Non-Belligerent States to Refrain From Supporting Hostilities by Non-State Armed
Groups Against Other States).
97

HAGUE XIII art. 8 (“A neutral Government is bound to employ the means at its disposal to prevent the fitting out
or arming of any vessel within its jurisdiction which it has reason to believe is intended to cruise, or engage inhostile operations, against a Power with which that Government is at peace. It is also bound to display the same
vigilance to prevent the departure from its jurisdiction of any vessel intended to cruise, or engage in hostile
operations, which has been adapted entirely or partly within the said jurisdiction for use in war.”); Treaty between
the United States and Great Britain, art. 6, May 8, 1871, 17 STAT. 863, 865 (“A neutral Government is bound – First,
to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it hasreasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace; andalso to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on
war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlikeuse.”).
98

1956 FM 27-10 (Change No. 1 1976) ¶526 (“It is also forbidden to permit the use of its territory for the fitting outof hostile expeditions.”).
99

HAGUE XIII art. 18 (“Belligerent war-ships may not make use of neutral ports, roadsteads, or territorial waters for
replenishing or increasing their supplies of war material or their armament, or for completing their crews.”).
100

HAGUE V art. 4 (“Corps of combatants cannot be formed nor recruiting agencies opened on the territory of aneutral Power to assist the belligerents.”).

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intending to enlist are prohibited. 101
15.5.2.1 Exception for Authorized Medical Personnel. This prohibition does notextend to medical personnel and units of voluntary aid societies of a neutral State who are duly
authorized to provide medical assistance to a belligerent State. 102 In no circumstance shall suchassistance by medical personnel and units of voluntary aid societies of the neutral State beconsidered as interference in the conflict. 103
15.5.2.2 Exception for Persons Crossing a Neutral State’s Frontiers Separately toAssist a Belligerent State. The prohibition against organizing units of combatants is directedagainst organized bodies, which only require being armed to become an immediate fighting
force. 104 Thus, the responsibility of a neutral State is not engaged by the fact of persons crossing
the frontier separately to offer their services to one of the belligerent States. 105 Individuals
crossing the frontier singly or in small bands that are unorganized create no obligation on theneutral State. 106
Neutral States shall not oppose the voluntary departure of nationals of belligerent Stateseven though they leave simultaneously in great numbers; but they may oppose the voluntary
departure of their own nationals going to enlist in the armed forces of belligerent States. 107
Neutral States are not required to enact legislation forbidding their nationals to join the armed
forces of belligerent States. 108
Neutral States, however, may not send regularly constituted military units across the1011956 FM 27-10 (Change No. 1 1976) ¶522b (“Application of Rule. The establishment of recruiting agencies, theenlistment of men, the formation and organization of hostile expeditions on neutral territory, and the passage acrossits frontiers of organized bodies of men intending to enlist are prohibited.”); Consultative Meeting of Foreign
Ministers of the American Republics, Final Act of the Meeting: V General Declaration of Neutrality of theAmerican Republics, ¶3, Oct. 3, 1939, 1 DEPARTMENT OF STATE BULLETIN 326, 327 (Oct. 7, 1939) (The American
Republics resolve “[t]o declare that with regard to their status as neutrals, there exist certain standards recognized by
the American Republics applicable in these circumstances and that in accordance with them they: ... (c) Shall
prevent on their respective territories the enlistment of persons to serve in the military, naval, or air forces of thebelligerents;”).
102

1956 FM 27-10 (Change No. 1 1976) ¶522c (“This prohibition does not extend to medical personnel and units ofa voluntary aid society duly authorized to join one of the belligerents. (See GWS, art. 27; par. 229 herein.)”).
103

Refer to § 4.12 (Staff of a Recognized Aid Society of a Neutral Country).

104

1956 FM 27-10 (Change No. 1 1976) ¶524a (“The prohibition in Article 4, H. V (par. 522), is directed againstorganized bodies which only require to be armed to become an immediate fighting force.”).
105

HAGUE V art. 6 (“The responsibility of a neutral Power is not engaged by the fact of persons crossing the frontier
separately to offer their services to one of the belligerents.”).

106

1956 FM 27-10 (Change No. 1 1976) ¶524a (“Individuals crossing the frontier singly or in small bands that are
unorganized create no obligation on the neutral State.”).
107

1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 23 (“Neutral states shall not oppose the voluntary
departure of nationals of belligerent States even though they leave simultaneously in great numbers; but they may
oppose the voluntary departure of their own nationals going to enlist in the armed forces.”).
108

1956 FM 27-10 (Change No. 1 1976) ¶524a (“Neutral States are not required to enact legislation forbidding theirnationals to join the armed forces of the belligerents.”).

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frontier in the guise of “volunteers” or small unorganized bands. 109
15.5.3 Prohibition Against Establishment or Use of Belligerent Communications
Facilities in Neutral Territory. Belligerent States are prohibited from erecting on the territory ofa neutral State any apparatus for the purpose of communicating with belligerent forces on land orsea. 110 Belligerent States are prohibited from using any installation of this kind established bythem before the armed conflict on the territory of a neutral State for purely military purposes,
and which has not been opened for the service of public messages. 111
15.5.3.1 Use of Neutral Facilities by Belligerents Not Prohibited. A neutral State
does not, however, have to forbid or restrict the use on behalf of belligerent States ofcommunications equipment and facilities belonging to the neutral State, or belonging tocompanies or private individuals. 112
That a neutral State, if it so desires, may transmit messages by means of its
communications facilities does not imply that the neutral State may use such facilities or permit
their use to lend assistance to the belligerents on one side only. 113 Every measure of restriction
or prohibition taken by a neutral State in regard to the use of its communications facilities andequipment must be impartially applied by it to all belligerent States. 114 It also must see to thesame obligation being observed by companies or private individuals owning such
communication equipment and facilities. 115

109

1956 FM 27-10 (Change No. 1 1976) ¶524a (“The foregoing rules do not, however, permit a State professing to
be neutral to send regularly constituted military units across the frontier in the guise of ‘volunteers’ or small
unorganized bands.”).
110

HAGUE V art. 3 (“Belligerents are likewise forbidden to: (a.) Erect on the territory of a neutral Power a wirelesstelegraphy station or other apparatus for the purpose of communicating with belligerent forces on land or sea;”);HAGUE XIII art. 5 (“Belligerents are forbidden to use neutral ports and waters as a base of naval operations against
their adversaries, and in particular to erect wireless telegraphy stations or any apparatus for the purpose ofcommunicating with the belligerent forces on land or sea.”); 1928 PAN AMERICAN MARITIME NEUTRALITYCONVENTION art. 4 (“Under the terms of the preceding article, a belligerent state is forbidden: … b) To install inneutral waters radio-telegraph stations or any other apparatus which may serve as a means of communication withits military forces, or to make use of installations of this kind it may have established before the war and which may
not have been opened to the public.”).
111

HAGUE V art. 3 (“Belligerents are likewise forbidden to: ... (b.) Use any installation of this kind established bythem before the war on the territory of a neutral Power for purely military purposes, and which has not been opened
for the service of public messages.”).
112

HAGUE V art. 8 (“A neutral Power is not called upon to forbid or restrict the use on behalf of the belligerents oftelegraph or telephone cables or of wireless telegraphy apparatus belonging to it or to companies or private
individuals.”).

113

1956 FM 27-10 (Change No. 1 1976) ¶530 (“The liberty of a neutral State, if it so desires, to transmit messagesby means of its telegraph, telephone, cable, radio, or other communications facilities does not imply the power so to
use them or to permit their use as to lend assistance to the belligerents on one side only.”).
114

HAGUE V art. 9 (“Every measure of restriction or prohibition taken by a neutral Power in regard to the mattersreferred to in Articles 7 and 8 must be impartially applied by it to both belligerents.”).

115

HAGUE V art. 9 (“A neutral Power must see to the same obligations being observed by companies or private
individuals owning telegraph or telephone cables or wireless telegraphy apparatus.”).

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15.5.4 Movement of Belligerent Forces and Convoys of Supplies Through Neutral Land
Territory. Belligerent States are forbidden to move forces or convoys of either munitions of war
or supplies across the land territory of a neutral State. 116 This rule only prohibits the official actsof a belligerent State in convoying or shipping munitions and supplies through a neutral State aspart of an expedition; it does not prohibit the shipment of such supplies by private persons. 117
However, a neutral State may authorize passage through its territory of the wounded andsick, including the overflight of its territory by certain medical aircraft. 118
15.6 NEUTRAL PERSONS
15.6.1 Definition of Neutral Person. The nationals of a State that is not taking part in the
war are considered neutral persons. 119
15.6.2 Forfeiture of Protections of Neutral Status by a Neutral Person. A national of aneutral State would not retain the protections that a person would derive by virtue of the neutral
status of his or her State of nationality if that person commits:•

hostile acts against a belligerent State; or•acts in favor of a belligerent State, particularly if that person voluntarily enlists in theranks of the armed forces of one of the parties to the armed conflict. 120

For example, neutral persons who materially support one belligerent generally forfeit
their neutral character or assume certain liabilities with respect to the other belligerent. 121
15.6.2.1 No More Severe Treatment Than Nationals of an Opposing Belligerent
State. A neutral person, however, shall not be more severely treated by the belligerent State asagainst whom that person has abandoned his or her neutrality than a national of the other116

HAGUE V art. 2 (“Belligerents are forbidden to move troops or convoys of either munitions of war or supplies
across the territory of a neutral Power.”).

117

1956 FM 27-10 (Change No. 1 1976) ¶517 (“A distinction must be drawn between the official acts of thebelligerent State in convoying or shipping munitions and supplies through neutral territory as part of an expedition
and the shipment of such supplies by private persons. The former is forbidden while the latter is not.”).
118

Refer to § 15.18 (Authorized Passage of Wounded and Sick Combatants Through Neutral Territory).

119

HAGUE V art. 16 (“The nationals of a State which is not taking part in the war are considered as neutrals.”).

120

HAGUE V art. 17 (“A neutral cannot avail himself of his neutrality: (a.) If he commits hostile acts against abelligerent; (b.) If he commits acts in favor of a belligerent, particularly if he voluntarily enlists in the ranks of thearmed force of one of the parties.”).

121

See also LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 656 (§296) (“International Law is primarily a law
between States. For this reason the rights and duties of neutrality are principally those of neutral States as such. …
At the same time, International Law renders unlawful certain activities of nationals of neutral States, like carriage ofcontraband or breach of blockade, without, however, imposing upon these States the duty to prevent or penalise suchacts. These are punished by the belligerent against whom they are directed.”); GREENSPAN, THE MODERN LAW OF
LAND WARFARE 571 (“A neutral subject who indulges in partisan activity in favor of a belligerent usually loses thebenefit of his neutral character in relation to the belligerent on the other side, as will be seen shortly. Therefore,
while a neutral person is free to assist a belligerent, he generally does so at his own risk.”).

967

belligerent State could be for the same act. 122
Although a neutral person who takes certain actions may be liable to treatment as an
unprivileged belligerent, the forfeiture of neutral protections does not necessarily result in that
person being regarded as an unprivileged belligerent.
For example, if a national of a neutral State is a member of the armed forces of abelligerent State, that person would be entitled to all the protections that a member of the armed
forces of the belligerent State would enjoy under the law of war, such as POW status if that
person falls into the power of the enemy during international armed conflict. 123
15.6.2.2 Acts Not Considered in Favor of a Belligerent That Would Forfeit
Protections of Neutral Status. The followings acts would not be considered as committed infavor of a belligerent State that would forfeit a neutral person’s protections of neutral status:•

furnishing supplies or making loans to a belligerent State, provided that the person who
furnishes the supplies or who makes the loans lives neither in the territory of thebelligerent State nor in the territory occupied by it, and that the supplies do not comefrom these territories; or•rendering services in matters of police or civil administration. 124

In addition, merely expressing sympathy for a belligerent’s cause would not cause aperson to forfeit one’s neutral character, although incitement or recruitment would be treateddifferently.
Certain types of humanitarian assistance under the 1949 Geneva Conventions would also
not be regarded as a violation of neutrality by the persons engaging in those activities. 125
15.6.3 Neutral Persons in the Home Territory of a Belligerent. Neutral persons in thehome territory of a belligerent State are not “protected persons” under the GC while their State ofnationality has normal diplomatic relations with the belligerent State. 126
In general, neutral persons residing permanently in the territory of a belligerent State,
122

HAGUE V art. 17 (“In such a case, the neutral shall not be more severely treated by the belligerent as against
whom he has abandoned his neutrality than a national of the other belligerent State could be for the same act.”).

123

Refer to § 4.4.4.1 (Nationals of Neutral States in Enemy Forces).

124

HAGUE V art. 18 (“The following acts shall not be considered as committed in favour of one belligerent in thesense of Article 17, letter (b): (a.) Supplies furnished or loans made to one of the belligerents, provided that theperson who furnishes the supplies or who makes the loans lives neither in the territory of the other party nor in the
territory occupied by him, and that the supplies do not come from these territories; (b.) Services rendered in mattersof police or civil administration.”).

125

Refer to § 4.12 (Staff of a Recognized Aid Society of a Neutral Country); § 7.12.1.3 (Authorized Neutral Civilian
Hospital Ships).
126

Refer to § 10.3.3.3 (Nationals of a Neutral State or Co-Belligerent State While Normal Diplomatic
Representation Exists).

968

whether protected persons or not, are to a great extent regarded, both by that belligerent and the
opposing side, like other residents of that territory, so long as they remain there. 127 By contrast,
the neutral person who is a transient visitor in the territory of a belligerent is provided particularrespect, so far as the hazards of war permit, and provided that the person’s actions are consistent
with that person’s neutral character. 128
15.6.4 Neutral Persons Resident in Occupied Territory. Neutral persons resident in
occupied territory are not entitled to claim different treatment, in general, from that accorded theother inhabitants. 129 They must refrain from all participation in the war and from all hostile acts,and must observe strictly the rules of the Occupying Power. 130
All nationals of neutral States, whether resident in or temporarily visiting an occupied
territory, may be punished for offenses committed by them to the same extent and in the samemanner as enemy nationals. 131 In addition, it may be possible to extradite nationals of neutral
States who have committed offenses to their home States for prosecution. If nationals of neutral
States are not “protected persons,” they may be deported or expelled for just cause. 132
In the event that such a person is arrested, suspicions must be verified by a serious
inquiry, and the arrested neutral person must be given an opportunity to present a defense, and tocommunicate with his or her national consul if requested. 133 In addition, the minimum standards

127

GREENSPAN, THE MODERN LAW OF LAND WARFARE 575 (“In general, neutrals residing permanently in the
territory of a belligerent, whether protected persons or not, are to a great extent regarded, both by that belligerent
and the opposing side, as sharing the lot and character of the people among whom they reside, so long as they
continue there.”).

128

GREENSPAN, THE MODERN LAW OF LAND WARFARE 577-78 (“The neutral who is merely a transient visitor in the
territory of a belligerent falls into a different category from the resident neutral; provided, of course, that his actions
are consistent with his neutral character. Both his person and his property are entitled to particular respect from thebelligerents, so far as the hazards of war permit.”).
129

1956 FM 27-10 (Change No. 1 1976) ¶548 (“Neutral persons resident in occupied territory are not entitled toclaim different treatment, in general, from that accorded the other inhabitants.”).
130

1956 FM 27-10 (Change No. 1 1976) ¶548 (“They must refrain from all participation in the war, from all hostileacts, and observe strictly the rules of the occupant.”).
131

1956 FM 27-10 (Change No. 1 1976) ¶550 (“All nationals of neutral powers, whether resident or temporarily
visiting an occupied territory, may be punished for offenses committed by them to the same extent and in the samemanner as enemy nationals.”).
132

1958 UK MANUAL ¶691 note 1 (“If such neutrals are not ‘protected persons’ then they may be expelled ordeported for just cause by the military or civil authorities of the Occupant.”).

133

In the Matter of the Claim of Madame Chevreau Against the United Kingdom, Arbitral Award, reprinted in 27
AJIL 153, 160 (1933) (“The principles involved in the present case which, among others, have been applied bydifferent international commissions, may be briefly stated as follows: (1) The arbitrary arrest, detention ordeportation of a foreigner may give rise to a claim in international law. But the claim is not justified if thesemeasures were taken in good faith and upon reasonable suspicion, especially if a zone of military operations is
involved. (2) In cases of arrest, suspicions must be verified by a serious inquiry, and the arrested person given an
opportunity to defend himself against the suspicions directed against him, and particularly to communicate with theconsul of his country if he requests it. If there is no inquiry, or if it is unnecessarily delayed, or, in general, if thedetention is unnecessarily prolonged, there is ground for a claim.”).

969

for humane treatment and for detention procedures would be applicable. 134
15.6.4.1 Protected Person Status of Neutral Persons in Occupied Territory.
Neutral persons, among other persons, who find themselves in the hands of an Occupying Powergenerally would be regarded as “protected persons” under the GC. 135 Neutral persons who travelto occupied territory for the purpose of fighting the Occupying Power are not regarded as“protected persons” under the GC. 136
15.6.4.2 Diplomatic Agents and Consular Personnel in Occupied Territory.
Diplomatic agents of neutral States must be treated with all courtesy and must be permitted such
freedom of action as it is possible to allow, with due regard to the necessities of the war. The
same is true of consular personnel of neutral States, except those who are enemy nationals. 137
15.7 NEUTRAL WATERS
Belligerent States are forbidden to use a neutral State’s ports and waters as a base ofnaval operations against their adversaries, and in particular to erect or employ any apparatus forcommunicating with belligerent forces on land or sea. 138 For example, a belligerent State’s
warships may not make use of a neutral State’s ports, roadsteads, and territorial waters to
replenish or increase their supplies of war materials or their armaments, or for completing theircrews. 139

134

Refer to § 8.2 (Humane Treatment of Detainees); § 8.14 (Procedures for Detention).

135

See Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under the
Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 45 (“Second,‘territory of a belligerent State’ might refer to the home territory of the party to the conflict in whose hands thecitizen of the neutral State finds himself. As applied to the armed conflict with Iraq, this interpretation would deny‘protected person[]’ status to citizens of neutral States who find themselves in the territory of the United States, but
not to those who find themselves in occupied Iraq. We conclude that the second interpretation is correct.”)(amendment in original). See also II-A FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 793(“A particularly delicate question was that of the position of the nationals of neutral States. The Drafting Committee
had made a distinction between the position of neutrals in the home territory of belligerents and that of neutrals in
occupied territory. In the former case, neutrals were protected by normal diplomatic representation; in the latter
case, on the other hand, the diplomatic representatives concerned were only accredited to the Government of theoccupied States, whereas authority rested with the Occupying Power. It followed that all neutrals in occupied
territory must enjoy protection under the Convention, while neutrals in the home territory of a belligerent only
required such protection if the State whose nationals they were had no normal diplomatic representation in the
territory in question. The text drawn up by the Drafting Committee had taken account of the above
considerations.”).
136

Refer to § 10.3.2.1 (“Find Themselves”).

137

1956 FM 27-10 (Change No. 1 1976) ¶549 (“Diplomatic agents of neutral States must be treated with all courtesy
and must be permitted such freedom of action as it is possible to allow, with due regard to the necessities of the war.
The same is true of consular personnel of neutral States, except those who are enemy nationals.”).
138

HAGUE XIII art. 5 (“Belligerents are forbidden to use neutral ports and waters as a base of naval operations
against their adversaries, and in particular to erect wireless telegraphy stations or any apparatus for the purpose ofcommunicating with the belligerent forces on land or sea.”).

139

HAGUE XIII art. 18 (“Belligerent war-ships may not make use of neutral ports, roadsteads, or territorial waters for
replenishing or increasing their supplies of war material or their armament, or for completing their crews.”).

970

Belligerent State forces must refrain from acts of hostility in neutral waters, including theexercise of visit and search. 140
The neutral State has an affirmative duty to police its waters to prevent violations ofneutrality in its waters. 141 If a neutral State is unable or unwilling to detect and expel belligerent
forces unlawfully present in its waters, the opposing belligerent State may undertake such selfhelp enforcement actions as may be necessary to terminate the violation of neutrality.
15.7.1 Waters That Are Considered Neutral. The waters that are subject to thesovereignty of a neutral State are considered neutral. Neutral waters may be understood toinclude the following waters belonging to a neutral State:•

the territorial sea, including up to 12 nautical miles; 142•

archipelagic waters; 143 and•ports, roadsteads, and internal waters. 144

For the purpose of applying the law of neutrality, all ocean areas not subject to theterritorial sovereignty of any State (i.e., all waters seaward of neutral States’ territorial seas) are
not considered neutral waters. The following waters are not considered neutral waters:•

a neutral State’s contiguous zone; 145•a neutral State’s exclusive economic zone; 146 and•the high seas. 147

15.7.2 A Neutral State’s Regulations Concerning Belligerent Warships and Prizes in Its
Waters. A neutral State may adopt laws or regulations governing the presence of belligerent
warships and their prizes in its waters.
A neutral State must apply impartially to opposing belligerents the conditions,
restrictions, or prohibitions made by the neutral State in regard to the admission into its ports,

140

Refer to § 15.13.3 (Where Belligerents May Not Exercise the Right of Visit and Search).

141

Hague XIII art. 25 (“A neutral Power is bound to exercise such surveillance as the means at its disposal allow toprevent any violation of the provisions of the above Articles occurring in its ports or roadsteads or in its waters.”).
142

Refer to § 13.2.2.2 (Territorial Seas).

143

Refer to § 13.2.2.3 (Archipelagic Waters).

144

Refer to § 13.2.2.1 (Internal Waters).

145

Refer to § 13.2.3.2 (Contiguous Zones).

146

Refer to § 13.2.3.3 (Exclusive Economic Zones (EEZs)).

147

Refer to § 13.2.3.4 (High Seas).

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roadsteads, or territorial waters, of belligerent warships or of their prizes. 148 Nevertheless, aneutral Power may forbid a belligerent vessel that has failed to conform to the orders andregulations made by it, or that has violated neutrality, to enter its ports or roadsteads. 149
15.7.3 24-Hour Limit on Stay of Belligerent Warships in Neutral Waters. In the absenceof special provisions to the contrary in the legislation of a neutral State, a belligerent State’s
warships are generally prohibited from remaining in that neutral State’s ports, roadsteads, or
territorial waters for more than 24 hours. 150
A belligerent warship may not prolong its stay in a neutral port beyond the permissible
time except on account of damage or stress of weather. It must depart as soon as the cause of thedelay is at an end. 151
The regulations as to the question of the length of time that these vessels may remain in
neutral ports, roadsteads, or waters, do not apply to warships devoted exclusively to religious,
scientific, or philanthropic purposes. 152 Warships engaged in the collection of scientific data ofpotential military application would not be considered to be devoted exclusively to scientificpurposes and would not be exempt. 153
15.7.3.1 Notification to Belligerent Warships to Depart a Neutral State’s Waters
Upon Outbreak of Hostilities. If a neutral State, which has been informed of the outbreak ofhostilities, learns that a belligerent State’s warship is in one of the neutral State’s ports or
roadsteads, or in its territorial waters, it must notify such warship to depart within 24 hours or
148

HAGUE XIII art. 9 (“A neutral Power must apply impartially to the two belligerents the conditions, restrictions, or
prohibitions made by it in regard to the admission into its ports, roadsteads, or territorial waters, of belligerent warships or of their prizes.”).

149

HAGUE XIII art. 9 (“Nevertheless, a neutral Power may forbid a belligerent vessel which has failed to conform to
the orders and regulations made by it, or which has violated neutrality, to enter its ports or roadsteads.”).

150

HAGUE XIII art. 12 (“In the absence of special provisions to the contrary in the legislation of a neutral Power,
belligerent war-ships are not permitted to remain in the ports, roadsteads, or territorial waters of the said Power for
more than twenty-four hours, except in cases covered by the present Convention.”); 1928 PAN AMERICAN
NEUTRALITY CONVENTION art. 5 (“Belligerent warships are forbidden to remain in the ports or waters of a neutral
state more than twenty-four hours. This provision will be communicated to the ship as soon as it arrives in port or in
the territorial waters, and if already there at the time of the declaration of war, as soon as the neutral state becomesaware of this declaration.”).
151

HAGUE XIII art. 14 (“A belligerent war-ship may not prolong its stay in a neutral port beyond the permissible
time except on account of damage or stress of weather. It must depart as soon as the cause of the delay is at anend.”). See also 1928 PAN AMERICAN NEUTRALITY CONVENTION art. 5 (“A ship may extend its stay in port morethan twenty-four hours in case of damage or bad conditions at sea, but must depart as soon as the cause of the delay
has ceased. When, according to the domestic law of the neutral state, the ship may not receive fuel until twenty-fourhours after its arrival in port, the period of its stay may be extended an equal length of time.”).
152

HAGUE XIII art. 14 (“The regulations as to the question of the length of time which these vessels may remain in
neutral ports, roadsteads, or waters, do not apply to war-ships devoted exclusively to religious, scientific, orphilanthropic purposes.”); 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 5 (“Vessels used
exclusively for scientific, religious, or philanthropic purposes are exempted from the foregoing provisions.”).
153
2007 NWP 1-14M ¶7.3.2.1 (“Warships engaged in the collection of scientific data of potential military
application are not exempt.”); 1997 NWP 9 ¶7.3.2.1 (same); 1989 NWP 9 ¶7.3.2.1 (“Vessels engaged in thecollection of scientific data of potential military application are not exempt”).

972

within the time prescribed by local regulations. 154
15.7.4 Passage of Belligerent Warships and Prizes Through a Neutral State’s Waters. A
neutral State may allow the passage of belligerent warships and prizes through its waters. The
neutrality of a State is not affected by the mere passage through its territorial waters of warships
or prizes belonging to belligerents. 155
A neutral State may, on a nondiscriminatory basis, suspend passage of belligerent
warships and prizes through its waters (with the exception of international straits andarchipelagic sea lanes). 156
Although the general practice has been to close neutral territorial seas to belligerent
submarines, a neutral State may elect to allow passage of submarines provided they do not
engage in hostile acts while in territorial waters. 157
Neutral States customarily authorize passage through their territorial sea of ships carrying
the wounded, sick, and shipwrecked, whether or not those waters are otherwise closed tobelligerent vessels. 158
15.7.4.1 Right of Entry in Distress for Belligerent Vessels. Belligerent vessels,
including warships, have a right of entry in distress whether caused by force majeure or damage
resulting from enemy action. 159 The right of entry in distress does not prejudice the measuresthat a neutral State may take after entry has been granted, such as measures to intern the ship if it

154

HAGUE XIII art. 13 (“If a Power which has been informed of the outbreak of hostilities learns that a belligerent
war-ship is in one of its ports or roadsteads, or in its territorial waters, it must notify the said ship to depart withintwenty-four hours or within the time prescribed by local regulations.”).

155

HAGUE XIII art. 10 (“The neutrality of a Power is not affected by the mere passage through its territorial watersof war-ships or prizes belonging to belligerents.”).

156

2007 NWP 1-14M ¶7.3.4 (“A neutral nation may, on a nondiscriminatory basis, suspend passage of belligerent
warships and prizes through its territorial seas, except in international straits.”); 1997 NWP 9 ¶7.3.4 (same); 1989
NWP 9 ¶7.3.4.1 (“A neutral nation may, on a nondiscriminatory basis, close its territorial waters, except ininternational straits, to belligerent vessels.”).
157

2007 NWP 1-14M ¶7.3.4 (“Although the general practice has been to close neutral territorial seas to belligerent
submarines, a neutral nation may elect to allow passage of submarines.”); 1997 NWP 9 ¶7.3.4 (same); 1989 NWP 9¶7.3.4.1 (“Although the general practice has been to close neutral territorial waters to belligerent submarines, aneutral nation may elect to allow passage of submarines, either surfaced or submerged.”).
158

2007 NWP 1-14M ¶7.3.4 (“Neutral nations customarily authorize passage through their territorial sea of ships
carrying the wounded, sick, and shipwrecked, whether or not those waters are otherwise closed to belligerent
vessels.”); 1997 NWP 9 ¶7.3.4 (same); 1989 NWP 9 ¶7.3.4.1 (same).
159

TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 240 (“It is generally recognized, however, thatinternational practice requires that exception be made in the neutrality regulations of states to permit the entry of
belligerent warships in distress. Entry in distress may result from weather or sea conditions, but it may also result
from damage incurred in battle. Even pursuit by the enemy appears to give belligerent warships a right of entry.
But this right of entry in distress cannot be held to prejudice the measures a neutral state may take once admission
into its waters and ports has been granted.”).

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remains when it is not entitled to remain. 160
15.8 PASSAGE OF BELLIGERENT VESSELS AND AIRCRAFT THROUGH INTERNATIONAL STRAITS AND
ARCHIPELAGIC SEA LANES
Although a neutral State may suspend the passage of belligerent warships through its
waters, a neutral State may not suspend, hamper, or otherwise impede the access of belligerent
vessels and aircraft through international straits overlapped by neutral waters or archipelagic sea
lanes of a neutral State.
Belligerent vessels and aircraft transiting through international straits overlapped byneutral waters or archipelagic sea lanes of a neutral State must adhere to certain requirements.
15.8.1 Passage of Belligerent Vessels and Aircraft Through International Straits
Overlapped by Neutral Waters. All ships and aircraft (including those belonging to belligerent
and neutral States) have a right of transit passage through, over, and under all straits used forinternational navigation. 161 Such passage by vessels carrying contraband of war or by belligerent
warships is not regarded as compromising the neutrality of the State with water overlapping suchstraits. 162 Neutral States bordering international straits may not suspend, hamper, or otherwise
impede the right of transit passage through international straits. 163
Belligerent forces transiting through international straits overlapped by neutral waters
must proceed without delay, must refrain from the threat or use of force against the neutral State,
and must otherwise refrain from acts of hostility and other activities not incident to theirtransit. 164 For example, belligerent forces must refrain from exercising the right of visit and160

Refer to § 15.9.2 (Detention of Belligerent Ships That, and Personnel Who, Are Not Entitled to Remain in a
Neutral Port).
161

See 2007 NWP 1-14M ¶7.3.6 (“Customary international law as reflected in the 1982 LOS Convention provides
that belligerent and neutral surface ships, submarines, and aircraft have a right of transit passage through, over, andunder all straits used for international navigation.”). Consider LOS CONVENTION art. 38(1) (“In straits referred to inarticle 37 [i.e., straits that are used for international navigation between one part of the high seas or an exclusive
economic zone and another part of the high seas or an exclusive economic zone], all ships and aircraft enjoy theright of transit passage, which shall not be impeded.”).
162
The S.S. Wimbledon, (United Kingdom, France, Japan v. Germany) (Judgment), 1923 P.C.I.J. (series A) No. 1,
at 28 (“The precedents therefore afforded by the Suez and Panama Canals invalidate in advance the argument that
Germany's neutrality would have necessarily been imperilled [sic] if her authorities had allowed the passage of the‘Wimbledon’ through the Kiel Canal, because that vessel was carrying contraband of war consigned to a state thenengaged in an armed conflict. Moreover they are merely illustrations of the general opinion according to which
when an artificial waterway connecting two open seas has been permanently dedicated to the use of the wholeworld, such waterway is assimilated to natural straits in the sense that even the passage of a belligerent man-of-war
does not compromise the neutrality of the sovereign State under whose jurisdiction the waters in question lie.”).
163

2007 NWP 1-14M ¶7.3.6 (“Neutral nations cannot suspend, hamper, or otherwise impede this right of transit
passage through international straits.”). Consider LOS CONVENTION art. 44 (“States bordering straits shall nothamper transit passage and shall give appropriate publicity to any danger to navigation or overflight within or overthe strait of which they have knowledge. There shall be no suspension of transit passage.”).
1642007 NWP 1-14M ¶7.3.6 (“Belligerent forces transiting through international straits overlapped by neutral waters
must proceed without delay, must refrain from the threat or use of force against the neutral nation, and mustotherwise refrain from acts of hostility and other activities not incident to their transit.”). Consider LOS

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search while transiting through international straits that are overlapped by neutral waters. 165
Belligerent forces in transit may, however, take defensive measures consistent with theirsecurity, including the launching and recovery of military devices, screen formation steaming,and acoustic and electronic surveillance, and may respond in self-defense to a hostile act or ademonstration of hostile intent. 166
15.8.2 Passage of Belligerent Vessels and Aircraft Through Archipelagic Sea Lanes of a
Neutral State. Belligerent ships or aircraft, including surface warships, submarines, and military
aircraft, retain the right of unimpeded archipelagic sea 167 lanes passage through, under, and overneutral archipelagic sea lanes. 168 Neutral archipelagic States shall not suspend or hamper theright of transit passage through their archipelagic sea lanes. 169
Belligerent State forces exercising the right of archipelagic sea lanes passage must refrainfrom acts of hostility and other activities not incident to their transit. 170 For example, belligerent
State forces must refrain from exercising the right of visit and search while exercising the rightof archipelagic sea lanes passage. 171 Belligerent State forces exercising the right of archipelagic
sea lanes passage may, however, engage in those activities that are incident to their normal modeof continuous and expeditious passage, and that are consistent with their security, including
formation steaming, acoustic and electronic surveillance, and the launching and recovery of
CONVENTION art. 39(1) (“Ships and aircraft, while exercising the right of transit passage, shall: (a) proceed without
delay through or over the strait; (b) refrain from any threat or use of force against the sovereignty, territorial
integrity or political independence of States bordering the strait, or in any other manner in violation of the principles
of international law embodied in the Charter of the United Nations; (c) refrain from any activities other than thoseincident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure orby distress.”).
165

Refer to § 15.13.3 (Where Belligerents May Not Exercise the Right of Visit and Search).

166

2007 NWP 1-14M ¶7.3.6 (“Belligerent forces in transit may, however, take defensive measures consistent with
their security, including the launching and recovery of military devices, screen formation steaming, and acoustic andelectronic surveillance, and may respond in self-defense to a hostile act or hostile intent.”).
167

Refer to § 13.2.2.3 (Archipelagic Waters).

168

2007 NWP 1-14M ¶7.3.7 (“Belligerent ships or aircraft, including surface warships, submarines and military
aircraft, retain the right of unimpeded archipelagic sea lanes passage through, under, and over neutral archipelagic
sea lanes.”). Consider LOS CONVENTION art. 53(2) (“All ships and aircraft enjoy the right of archipelagic sea lanes
passage in such sea lanes and air routes.”).
169

Consider LOS CONVENTION art. 54 (“Articles 39, 40, 42 and 44 apply mutatis mutandis to archipelagic sea lanes
passage.”); LOS CONVENTION art. 44 (“States bordering straits shall not hamper transit passage and shall give
appropriate publicity to any danger to navigation or overflight within or over the strait of which they haveknowledge. There shall be no suspension of transit passage.”).
170

Consider LOS CONVENTION art. 54 (“Articles 39, 40, 42 and 44 apply mutatis mutandis to archipelagic sea lanes
passage.”); LOS CONVENTION art. 39 (“Ships and aircraft, while exercising the right of transit passage, shall: (a)proceed without delay through or over the strait; (b) refrain from any threat or use of force against the sovereignty,
territorial integrity or political independence of States bordering the strait, or in any other manner in violation of theprinciples of international law embodied in the Charter of the United Nations; (c) refrain from any activities otherthan those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force
majeure or by distress.”).
171

Refer to § 15.13.3 (Where Belligerents May Not Exercise the Right of Visit and Search).

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military devices. 172
15.9 ADDITIONAL RULES APPLICABLE TO NEUTRAL PORTS, ROADSTEADS, AND INTERNALWATERSIn addition to the general rules applicable to neutral waters, 173 certain other rules apply toneutral ports, roadsteads, and internal waters.
15.9.1 Maximum Number of Belligerent Warships in One Neutral Port or Roadstead. In
the absence of special provisions to the contrary in the legislation of a neutral State, themaximum number of warships belonging to a belligerent that may be in one of the ports or
roadsteads of that neutral State simultaneously is three. 174
15.9.2 Detention of Belligerent Ships That, and Personnel Who, Are Not Entitled toRemain in a Neutral Port. If, notwithstanding the notification of the neutral State, a belligerent
ship of war does not leave a port where it is not entitled to remain, the neutral State is entitled totake such measures as it considers necessary to render the ship incapable of taking to sea during
the war, and the commanding officer of the ship must facilitate the execution of suchmeasures. 175
When a belligerent ship is detained by a neutral Power, the officers and crew are likewise172

2007 NWP 1-14M ¶7.3.7 (“Belligerent forces exercising the right of archipelagic sea lanes passage may engage
in those activities that are incident to their normal mode of continuous and expeditious passage and are consistent
with their security, including formation steaming, acoustic and electronic surveillance, and the launching andrecovery of military devices.”). Consider LOS CONVENTION art. 53(3) (“Archipelagic sea lanes passage means theexercise in accordance with this Convention of the rights of navigation and overflight in the normal mode solely forthe purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive
economic zone and another part of the high seas or an exclusive economic zone.”).
173

Refer to § 15.7 (Neutral Waters).

174

See Consultative Meeting of Foreign Ministers of the American Republics, Final Act of the Meeting: V General
Declaration of Neutrality of the American Republics, ¶3, Oct. 3, 1939, 1 DEPARTMENT OF STATE BULLETIN 326, 327(Oct. 7, 1939) (The American Republics resolve “[t]o declare that with regard to their status as neutrals, there exist
certain standards recognized by the American Republics applicable in these circumstances and that in accordancewith them they: ... (d) May determine, with regard to belligerent warships, that not more than three at a time be
admitted in their own ports or waters and in any case they shall not be allowed to remain for more than twenty-fourhours. Vessels engaged exclusively in scientific, religious or philanthropic missions may be exempted from thisprovision, as well as those which arrive in distress.”); 1928 PAN AMERICAN NEUTRALITY CONVENTION art. 7 (“In theabsence of a special provision of the local legislation, the maximum number of ships of war of a belligerent which
may be in a neutral port at the same time shall be three.”); HAGUE XIII art. 15 (“In the absence of special provisions
to the contrary in the legislation of a neutral Power, the maximum number of war-ships belonging to a belligerent
which may be in one of the ports or roadsteads of that Power simultaneously shall be three.”).
175

HAGUE XIII art. 24 (“If, notwithstanding the notification of the neutral Power, a belligerent ship of war does notleave a port where it is not entitled to remain, the neutral Power is entitled to take such measures as it considers
necessary to render the ship incapable of taking the sea during the war, and the commanding officer of the ship must
facilitate the execution of such measures.”); 1928 PAN AMERICAN NEUTRALITY CONVENTION art. 6 (“The ship
which does not conform to the foregoing rules may be interned by order of the neutral government. A ship shall beconsidered as interned from the moment it receives notice to that effect from the local neutral authority, even thougha petition for reconsideration of the order has been interposed by the transgressing vessel, which shall remain undercustody from the moment it receives the order.”).

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detained. 176
The officers and crew thus detained may be left in the ship or kept either on anothervessel or on land, and may be subjected to the measures of restriction that may appear necessary
to impose upon them. A sufficient number of persons for looking after the vessel must, however,always be left on board. The officers may be left at liberty on giving their word not to quit theneutral territory without permission. 177
15.9.3 Departure of Belligerent Warships in Relation to the Departure of Ships of the
Opposing Belligerent. When warships of opposing belligerent States are present simultaneously
in a neutral State’s port or roadstead, a period of not less than 24 hours must elapse between thedeparture of the respective enemy warships. 178 The order of departure is determined by the orderof arrival, unless the ship that arrived first is in such circumstances that an extension of its stay ispermissible. 179
A belligerent warship may not leave a neutral port or roadstead until 24 hours after the
departure of a merchant ship flying the flag of its adversary. 180
15.9.4 Supplies and Repairs of Belligerent Warships in Neutral Ports and Roadsteads.
15.9.4.1 Food and Fuel for Belligerent Warships in Neutral Ports andRoadsteads. A neutral State has discretion to issue and implement regulations regarding the
supply of food and supplies for belligerent warships in its territory. 181 However, such
regulations must be applied impartially among belligerent States. 182

176

HAGUE XIII art. 24 (“When a belligerent ship is detained by a neutral Power, the officers and crew are likewise
detained.”).

177

HAGUE XIII art. 24 (“The officers and crew thus detained may be left in the ship or kept either on another vesselor on land, and may be subjected to the measures of restriction which it may appear necessary to impose upon them.
A sufficient number of men for looking after the vessel must, however, be always left on board. The officers may
be left at liberty on giving their word not to quit the neutral territory without permission.”). Refer to § 15.16.4(Parole of Belligerent Personnel Interned in Neutral Territory).
178

See 1928 PAN AMERICAN NEUTRALITY CONVENTION art. 8 (“A ship of war may not depart from a neutral port
within less than twenty-four hours after the departure of an enemy warship.”); HAGUE XIII art. 16 (“When war-ships
belonging to both belligerents are present simultaneously in a neutral port or roadstead, a period of not less thantwenty-four hours must elapse between the departure of the ship belonging to one belligerent and the departure of
the ship belonging to the other.”).
179

1928 PAN AMERICAN NEUTRALITY CONVENTION art. 8 (“The one entering first shall depart first, unless it is insuch condition as to warrant extending its stay.”); HAGUE XIII art. 16 (“The order of departure is determined by theorder of arrival, unless the ship which arrived first is so circumstanced that an extension of its stay is permissible.”).

180

HAGUE XIII art. 16 (“A belligerent war-ship may not leave a neutral port or roadstead until twenty-four hours
after the departure of a merchant-ship flying the flag of its adversary.”).
181

1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 10 (“Belligerent warships may supply
themselves with fuel and stores in neutral ports, under the conditions especially established by the local authority
and in case there are no special provisions to that effect, they may supply themselves in the manner prescribed forprovisioning in time of peace.”).

182

Refer to § 15.7.2 (A Neutral State’s Regulations Concerning Belligerent Warships and Prizes in Its Waters).

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A belligerent State’s warships may take on food supplies and provisions in a neutral
State’s ports and roadsteads, but only to bring up their supplies to the peacetime standard. 183
Similarly, a belligerent State’s warship may only take on sufficient fuel to enable it toreach the nearest port in its own country. 184 The belligerent State’s warship may, however, fill
up its bunkers built to carry fuel when the neutral State has adopted this method of determining
the amount of fuel to be supplied. 185
15.9.4.2 Repairs of Belligerent Warships in a Neutral State’s Ports andRoadsteads. A belligerent State’s warships may only carry out such repairs in a neutral State’s
ports and roadsteads as are absolutely necessary to render the warships seaworthy; they may not
add to or repair weapons systems, or enhance any other aspect of their war fighting capability. 186
The neutral State shall decide what repairs are necessary to restore seaworthiness; repairs mustbe accomplished with the least possible delay. 187
If the 1928 Pan American Maritime Neutrality Convention is applicable, then damage
found to have been produced by the enemy’s fire must not be repaired. 188 However, whether
such repairs are prohibited by customary international law is less clear. 189 Some States haveallowed such repairs provided they are limited to rendering the ship sufficiently seaworthy tocontinue its voyage safely. 190

183

HAGUE XIII art. 19 (“Belligerent war-ships may only revictual in neutral ports or roadsteads to bring up their
supplies to the peace standard.”).
184

HAGUE XIII art. 19 (“Similarly these vessels may only ship sufficient fuel to enable them to reach the nearest port
in their own country.”).

185

HAGUE XIII art. 19 (“They may, on the other hand, fill up their bunkers built to carry fuel, when in neutral
countries which have adopted this method of determining the amount of fuel to be supplied.”).

186

HAGUE XIII art. 17 (“In neutral ports and roadsteads belligerent war-ships may only carry out such repairs as are
absolutely necessary to render them seaworthy, and may not add in any manner whatsoever to their fighting force.”);1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 9 (“Damaged belligerent ships shall not be
permitted to make repairs in neutral ports beyond those that are essential to the continuance of the voyage and which
in no degree constitute an increase in its military strength.”).
187

HAGUE XIII art. 17 (“The local authorities of the neutral Power shall decide what repairs are necessary, and thesemust be carried out with the least possible delay.”); 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art.
9 (“The neutral state shall ascertain the nature of the repairs to be made and will see that they are made as rapidly as
possible.”).

188

1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 9 (“Damages which are found to have been
produced by the enemy’s fire shall in no case be repaired.”).
189

See TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 244-45 (“But it is more than doubtful that the law
presently forbids the repair of battle damage in neutral ports, and, in fact, some states when neutral still allow such
repairs.”).
190

For example, TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 245 footnote 2 (“As illustrated by theincident involving the German battleship Admiral Graf Spee. See Hackworth, op. cit., Vol. VII, pp. 450-1. On
December 13, 1939, the Graf Spee entered the Uruguayan port of Montevideo, following an engagement with
British naval forces. A request was made to the Uruguayan authorities to permit the Graf Spee to remain fifteendays in port in order to repair damages suffered in battle and to restore the vessel's navigability. The Uruguayan
authorities granted a seventy-two hour period of stay. Shortly before the expiration of this period the Graf Spee left978A belligerent warship damaged by enemy fire that will not (or cannot) be put to sea once
the lawful period of stay has expired must be interned. 191
15.9.5 Prizes in Neutral Ports or Roadsteads. A prize (i.e., a captured neutral or enemy
merchant ship) may only be brought into a neutral port or roadstead because of unseaworthiness,stress of weather, or want of fuel or provisions. 192 It must leave as soon as such circumstancesthat justified its entry cease. 193 Neutral ports may not be used as harbors of safety in whichprizes may be kept indefinitely. 194
If the prize does not leave as soon as such circumstances that justified it entry cease, theneutral State must order the prize to leave at once, and should it fail to do so, the neutral State
must employ the means at its disposal to release it with its previous officers and crew, and tointern the prize crew. 195
If a prize is brought into a neutral State’s port under circumstances other than because of
unseaworthiness, stress of weather, or want of fuel or provisions, the neutral State must release
Montevideo and was destroyed by its own crew in the Rio de la Plata. The British Government, while not insistingthat Article 17 of Hague XIII clearly prohibited the repair of battle damage, did point to the widespread practice ofstates when neutral in forbidding the repair of battle damage in their ports. In accordance with this practice it wassuggested that the Graf Spee’s period of stay be limited to twenty-four hours. Uruguay maintained, however, thatthe scope of the neutral's duty required it only to prevent those repairs that would serve to augment the fighting force
of a vessel but not repairs necessary for safety of navigation.—The incident is noteworthy as an example of theextent to which belligerents seemingly can make use of neutral ports without violating the prohibition against using
neutral territory as a base of naval operations.”).
191

Refer to § 15.9.2 (Detention of Belligerent Ships That, and Personnel Who, Are Not Entitled to Remain in a
Neutral Port).
192

1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 17 (“Prizes cannot be taken to a neutral port
except in case of unseaworthiness, stress of weather, or want of fuel or provisions.”); HAGUE XIII art. 21 (“A prize
may only be brought into a neutral port on account of unseaworthiness, stress of weather, or want of fuel orprovisions.”).
193

1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 17 (“When the cause has disappeared, the prizes
must leave immediately;”); HAGUE XIII art. 21 (“It must leave as soon as the circumstances which justified its entry
are at an end.”).
194

The S.S. Appam, 243 U.S. 124, 148-49 (1917) (“It is familiar international law that the usual course after thecapture of the Appam would have been to take her into a German port, where a prize court of that nation might haveadjudicated her status, and, if it so determined, condemned the vessel as a prize of war. Instead of that, the vessel
was neither taken to a German port nor to the nearest port accessible of a neutral power, but was ordered to, and did,proceed over a distance of more than 3,000 miles, with a view to laying up the captured ship in an American port. It
was not the purpose to bring the vessel here within the privileges universally recognized in international law -- i.e.,
for necessary fuel or provisions, or because of stress of weather or necessity of repairs, and to leave as soon as thecause of such entry was satisfied or removed. … The principles of international law recognized by this government,leaving the treaty aside, will not permit the ports of the United States to be thus used by belligerents. If such use
were permitted, it would constitute of the ports of a neutral country harbors of safety into which prizes, captured by
one of the belligerents, might be safely brought and indefinitely kept.”).
195

HAGUE XIII art. 21 (“If it does not [leave], the neutral Power must order it to leave at once; should it fail to obey,
the neutral Power must employ the means at its disposal to release it with its officers and crew and to intern the prizecrew.”); 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 17 (“if none of the indicated conditions
exist, the state shall suggest to them that they depart, and if not obeyed shall have recourse to the means at its
disposal to disarm them with their officers and crew, or to intern the prize crew placed on board by the captor.”).

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the prize. 196 The prize crew should be interned and the vessel restored to its former crew. 197
15.9.5.1 Article 23 of Hague XIII – Prizes Sequestrated Pending Prize Court
Decision. Article 23 of Hague XIII permits a neutral State to allow prizes to enter its ports androadsteads when they are brought there to be sequestrated pending the decision of a prize
court. 198 However, the United States ratified Hague XIII subject to a reservation to Article 23. 199
15.10 NEUTRAL AIRSPACE
In general, belligerent military aircraft may not enter neutral airspace except to address
violations of neutrality by enemy forces when the neutral State is unwilling or unable to address
such violations.
15.10.1 Airspace That Is Considered Neutral. The airspace over a neutral State’s land
territory and the neutral State’s territorial and archipelagic waters is subject to the sovereignty of
the neutral State and, thus, is considered neutral. 200
The airspace over international waters, including the airspace over a neutral State’s
contiguous zone and exclusive economic zone, is not considered neutral airspace. 201
15.10.2 Prohibition on Entry by Belligerent Military Aircraft Into Neutral Airspace.
Belligerent military aircraft are forbidden to enter neutral airspace, subject to certain
exceptions. 202
196

HAGUE XIII art. 22 (“A neutral Power must, similarly, release a prize brought into one of its ports undercircumstances other than those referred to in Article 21.”); 1928 PAN AMERICAN NEUTRALITY CONVENTION art. 18(“Outside of the cases provided for in Article 17, the neutral state must release the prizes which may have beenbrought into its territorial waters.”).

197

Press Release, Oct. 28, 1939, German Capture of the American Steamer City of Flint, 1 DEPARTMENT OF STATE
BULLETIN 429, 432 (“A prize crew may take a captured ship into a neutral port without internment only in case ofstress of weather, want of fuel and provisions, or necessity of repairs. In all other cases, the neutral is obligated tointern the prize crew and restore the vessel to her former crew.”).
198

HAGUE XIII art. 23 (“A neutral Power may allow prizes to enter its ports and roadsteads, whether under convoy
or not, when they are brought there to be sequestrated pending the decision of a Prize Court. It may have the prize
taken to another of its ports. If the prize is convoyed by a war-ship, the prize crew may go on board the convoying
ship. If the prize is not under convoy, the prize crew are left at liberty.”).

199

William H. Taft, Proclamation Regarding the Hague XIII, Feb. 28, 1910, 36 STAT. 2415, 2438 (“And whereas
the Senate of the United States of America by its resolution of April 17, 1908, (two-thirds of the Senators present
concurring therein) did advise and consent to the adherence by the United States to the said Convention with thereservation and exclusion of its Article 23 and with the understanding that the last clause of Article 3 of the said
Convention implies the duty of a neutral power to make the demand therein mentioned for the return of a ship
captured within the neutral jurisdiction and no longer within that jurisdiction; And whereas the President of theUnited States of America, in pursuance of and in conformity with the aforesaid advice and consent of the Senate,
did, on the 23rd day of February, 1909, declare the adherence of the United States to the said Convention;”).

200

Refer to § 14.2.1.1 (National Airspace).

201

Refer to § 14.2.1.2 (International Airspace).

202

Consultative Meeting of Foreign Ministers of the American Republics, Final Act of the Meeting: V General
Declaration of Neutrality of the American Republics, ¶3, Oct. 3, 1939, 1 DEPARTMENT OF STATE BULLETIN 326, 327

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Belligerent military aircraft have the right to pass through international straits overlappedby neutral waters and archipelagic sea lanes of a neutral State. 203
Belligerent States’ medical aircraft may enter neutral airspace subject to certain
conditions. 204
Belligerent aircraft in evident distress may be permitted to enter neutral airspace and toland in neutral territory under such safeguards as the neutral State may wish to impose. The
neutral State must require such aircraft to land and must intern both aircraft and crew. 205 Thissituation would fall under the general duty of a neutral State with respect to the treatment ofbelligerent State forces that enter, or seek to enter, its territory. 206
15.10.3 Duties of Neutral States With Respect to Their Airspace. As with other neutral
territory, neutral States have an affirmative duty to prevent the violation of their airspace bybelligerent military aircraft. 207 For example, if a belligerent military aircraft enters neutral
airspace, the neutral State is obliged to use the means at its disposal to require the belligerent
military aircraft to land within its territory. 208 After the aircraft lands, the neutral State must
(Oct. 7, 1939) (The American Republics resolve “[t]o declare that with regard to their status as neutrals, there exist
certain standards recognized by the American Republics applicable in these circumstances and that in accordancewith them they: ... (f) Shall regard as a contravention of their neutrality any flight by the military aircraft of abelligerent state over their own territory.”).
203

Refer to § 15.8 (Passage of Belligerent Vessels and Aircraft Through International Straits and Archipelagic Sea
Lanes).
204

Refer to § 15.18.2 (Medical Aircraft and Neutral Territory).

205

2007 NWP 1-14M ¶7.3.9 (“Belligerent aircraft in evident distress may be permitted to enter neutral airspace andto land in neutral territory under such safeguards as the neutral nation may wish to impose. The neutral nation must
require such aircraft to land and must intern both aircraft and crew.”). See also SPAIGHT, AIR POWER AND WAR
RIGHTS 436 (“The case of distress.—It was agreed by the Commission of Jurists of 1922-23 that the obligation toprevent the entry of belligerent military aircraft was to be regarded as being subject to the neutral State’s moral duty
to grant succor to airmen in distress. As already explained, there is, in practice, some difficulty in differentiating
between cases in which the reason for entry is genuine distress, or some similar cause such as engine failure or
exhaustion of fuel which might lead to disaster, and those in which there is a deliberate attempt to penetrate in order
to secure some military advantage or to escape from superior forces. The highest that one can put the neutral
obligation is that asylum should be granted in all cases of evident distress, so far as the circumstances allow thisobvious concession to humanitarian claims to be made.”).
206

Refer to § 15.16 (Belligerent Forces Taking Refuge in Neutral Territory).

207

See, e.g., TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 251 (“The practices of states during World Wars
I and II may be regarded as having firmly established both the right as well as the duty of the neutral state to forbid
the entrance of belligerent military aircraft into its air space.”); SPAIGHT, AIR POWER AND WAR RIGHTS 420 (“Theimportant question whether the laws of neutrality allow belligerent military aircraft to come and go in neutral
jurisdiction was answered by the practice of 1914-18 with a firm and unmistakable negative. The unanimity of theanswer was remarkable. All the neutral States who had occasion to decide the question decided it in the samegeneral way, and their decision gave rise to no protest on the part of the belligerents concerned, with one single
exception, which the subsequent action and compliance of the State making it deprived of all its force.”).
208

Consider Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General
Report, Part II: Rules of Aërial Warfare, art. 42, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIALDOCUMENTS 12, 36 (1938) (“A neutral government must use the means at its disposal to prevent the entry within its
jurisdiction of belligerent military aircraft and to compel them to alight if they have entered such jurisdiction. A

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intern the aircraft and its crew for the duration of the armed conflict.
If a neutral State is unable or unwilling to prevent the unlawful entry or use of its airspaceby a belligerent State, the opposing belligerent State’s forces may undertake such self-help
enforcement measures as the circumstances may require. 209 For example, belligerents withmissile defense capabilities may be justified in intercepting enemy missiles transiting neutral
airspace if the neutral state cannot, or will not, prevent such airspace incursions.
15.11 BELLIGERENT RIGHT OF ANGARY
The right of angary recognizes the right of belligerents to requisition (upon payment ofjust compensation) neutral property transiently within their territory, or in territory that they haveoccupied, where the property is urgently required for the conduct of the war. 210
15.11.1 Neutral Property Transiently Within Belligerent Jurisdiction. The belligerent
right of angary applies to property that is transiently within belligerent jurisdiction. For example,
neutral ships have been subject of the exercise of the right of angary. 211
The right of angary does not apply to property of neutral ownership that has acquired
enemy character. 212

neutral government shall use the means at its disposal to intern any belligerent military aircraft which is within its
jurisdiction after having alighted for any reason whatsoever, together with its crew and the passengers, if any.”).
209

Refer to § 15.4.2 (Belligerent Use of Self-Help When Neutral States Are Unable or Unwilling to Prevent
Violations of Neutrality).
210

GREENSPAN, MODERN LAW OF LAND WARFARE 581 (“The right of angary, an ancient rule of international law, in
its modern application recognizes the right of belligerents to requisition (upon payment of just compensation)neutral ships and other neutral property transiently within their territory, or in territory which they have occupied,
where the property is urgently required for the conduct of the war.”).
211

For example, Press Release: Swedish Motorship “Kungsholm,” 5 DEPARTMENT OF STATE BULLETIN 519 (Dec.
13, 1941) (“The United States Government has exercised its right of angary to take over the Swedish motorship
Kungsholm.”); Woodrow Wilson, Proclamation Concerning the Possession and Utilization of Netherlands Vessels,Mar. 20, 1918, reprinted in 12 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 259-60 (1918) (“Whereas the law andpractice of nations accords to a belligerent Power the right in time of military exigency and for purposes essential tothe prosecution of the war, to take over and utilize neutral vessels lying within its jurisdiction: … Now therefore I,
Woodrow Wilson, President of the United States of America, in accordance with international law and practice, andby virtue of the Act of Congress aforesaid, and as Commander-in-Chief of the Army and Navy of the United States,
do hereby find and proclaim that the imperative military needs of the United States require the immediate utilizationof vessels of Netherlands registry, now lying within the territorial waters of the United States; and I do therefore
authorize and empower the Secretary of the Navy to take over on behalf of the United States the possession of and to
employ all such vessels of Netherlands registry as may be necessary for essential purposes connected with theprosecution of the war against the Imperial German Government. The vessels shall be manned, equipped, andoperated by the Navy Department and the United States Shipping Board, as may be deemed expedient; and theUnited States Shipping Board shall make to the owners thereof full compensation, in accordance with the principles
of international law.”).
212

LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 761-62 (§365) (“In case property of subjects of neutral
States is vested with enemy character, it is not neutral property in the strict sense of the term ‘neutral,’ and all rules
respecting appropriation, utilization, and destruction of enemy property obviously apply to it. The object of the rightof angary is, therefore, either such property of subjects of neutral States as retains its neutral character from its

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15.11.2 Railway Material Coming From the Territory of a Neutral State. Railway
material coming from the territory of a neutral State, whether it be the property of that State or ofcompanies or private persons, and recognizable as such, shall not be requisitioned or utilized bya belligerent State except where and to the extent that it is absolutely necessary. 213 It shall besent back as soon as possible to the country of origin. 214 A neutral State may likewise, in case ofnecessity, retain and utilize to an equal extent railway material coming from the territory of abelligerent State. 215 Compensation shall be paid by one party or the other in proportion to therailway material used, and to the period of usage. 216
Railway materials would include, for example, railroad cars and locomotives.
This rule on railway material has sought to balance between the necessities of war (i.e.,that such material might be of great military utility) and the interests and rights of neutrals. 217
This rule also reflects a compromise between the different views of States. 218
15.12 NEUTRAL COMMERCE AND CARRIAGE OF CONTRABAND
Although neutral States must not provide war-related goods and services to belligerents,

temporary position on belligerent territory, and which therefore is not vested with enemy character, or such neutral
property on the open sea as has not acquired enemy character.”).
213

HAGUE V art. 19 (“Railway material coming from the territory of neutral Powers, whether it be the property ofthe said Powers or of Companies or private persons, and recognizable as such, shall not be requisitioned or utilized
by a belligerent except where and to the extent that it is absolutely necessary.”).

214

HAGUE V art. 19 (“It shall be sent back as soon as possible to the country of origin.”).

215

HAGUE V art. 19 (“A neutral Power may likewise, in case of necessity, retain and utilize to an equal extent
material coming from the territory of the belligerent Power.”).

216

HAGUE V art. 19 (“Compensation shall be paid by one party or the other in proportion to the material used, and to
the period of usage.”).

217

Antonio S. de Bustamante, The Hague Convention Concerning the Rights and Duties of Neutral Powers andPersons in Land Warfare, 2 AJIL, 95, 119 (1908) (“The article in regard to railways – the only article saved in thechapter relating to foreign property – is useful to nations with land boundaries and is based on just terms, making thebest equivalent for the necessities of war and in the interest and right of neutrals. Therefore, its acceptance brings
great credit upon the delegation of Luxemburg. It is to be observed that the final redaction only relates to railway
material coming from neutral states, belonging to the said states or to companies or private persons. It has no otherpurpose than to facilitate the return of the compensation or the payment for the use of the cars and locomotives of acountry which may accidentally enter the other state through the occasions of ordinary traffic.”).
218

See A. PEARCE HIGGINS, THE HAGUE PEACE CONFERENCES AND OTHER INTERNATIONAL CONFERENCES
CONCERNING THE LAWS AND USAGES OF WAR: TEXTS OF CONVENTIONS WITH COMMENTARIES 294 (1909) (“Article
19 replaces Article 54 of the Regulations of 1899 and is a compromise between contradictory views. Luxemburg
and Belgium denied the right of belligerents to requisition and make use of neutral railway materials within theirterritory. Germany and Austria desired to have the right to use it admitted, on the understanding that an indemnity
was paid for its use after the close of the war. France and Luxemburg as an alternative claimed both an indemnity
and the right, in case of need, to retain and make use of a corresponding quantity of railway material coming fromthe territory of a belligerent state. The Conference took the middle course, allowing belligerents to requisition anduse neutral railway material only when absolutely necessary, on condition that it be returned as soon as possible, theneutral being given the corresponding right over belligerent material within its territory, compensation to be paid by
one party to the other in proportion to the material used and the period of use.”).

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neutral persons are not prohibited from such activity by the law of neutrality. 219 The law ofneutrality’s rules on neutral commerce and the carriage of contraband have sought to balance theright of neutral persons to conduct commerce free from unreasonable interference against theright of belligerent States to interdict the passage of war materials to the enemy. 220
Neutral merchant vessels and civil aircraft engaged in legitimate neutral commerce aresubject to visit and search, but generally may not be captured or destroyed by belligerent
forces. 221 On the other hand, neutral merchant vessels and civil aircraft are subject to capture
and other penalties if they engage in certain conduct. 222
Contraband goods are liable to capture at any place beyond neutral territory, if theirdestination is the territory belonging to, or occupied by, an opposing belligerent State. 223
15.12.1 Classes of Goods That May Be Considered Contraband. Contraband consists ofgoods that are destined for an enemy of a belligerent and that may be susceptible to use in armed
conflict. 224 Items susceptible to use in armed conflict may be understood to include warsustaining commerce, i.e., commerce that indirectly but effectively supports and sustains thebelligerent State’s war fighting capability (e.g., imports of raw materials used for the productionof armaments and exports of products whose proceeds are used by the belligerent State topurchase arms and armaments). 225
15.12.1.1 Distinction Between Absolute and Conditional Contraband. Whether
219

Refer to § 15.3.2.1 (Duty to Refrain From Providing War-Related Goods and Services to Belligerents).

220

TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 182 (“It has long been customary to characterize theproblems arising with respect to neutral commerce in terms of two conflicting rights: the right of the neutral state toinsist upon continued freedom of commerce for its subjects despite the existence of war and the right of thebelligerent to prevent neutral subjects from affording assistance to the military effort of an enemy. More accurate,
perhaps, is the characterization of these problems in terms of conflicting interests rather than in terms of conflicting
rights. Whereas the neutral’s interest has been to suffer the least amount of belligerent interference in the trading
activities of its subjects, the belligerent’s interest has been to prevent neutrals from compensating for an enemy's
weakness at sea.”).

221

Refer to § 15.13 (Belligerent Right of Visit and Search of Merchant Vessels and Civil Aircraft).

222

Refer to § 15.15.1 (Grounds for the Capture of Neutral Vessels and Aircraft).

223

2007 NWP 1-14M ¶7.4.1.2 (“Contraband goods are liable to capture at any place beyond neutral territory, if theirdestination is the territory belonging to or occupied by the enemy.”); 1998 NWP 9 ¶7.4.1.1 (same).
224

2007 NWP 1-14M ¶7.4.1 (“Contraband consists of goods destined for the enemy of a belligerent and that may besusceptible to use in armed conflict.”); 1955 NWIP 10-2 ¶631a (“Contraband consists of all goods which aredestined for an enemy and which may be susceptible of use in war.”).
225

See 2007 NWP 1-14M ¶7.4 (“For purposes of this publication, neutral commerce comprises all commerce
between one neutral nation and another not involving materials of war or armaments ultimately destined for abelligerent nation, and all commerce between a neutral nation and a belligerent that does not involve the carriage ofcontraband or otherwise contribute to the belligerent’s war-fighting/war-sustaining capability.”); 1998 NWP 9 ¶7.4
footnote 88 (“Although war-sustaining commerce is not subject to precise definition, commerce that indirectly but
effectively supports and sustains the belligerent's war-fighting capability properly falls within the scope of the term.
Examples of war-sustaining commerce include imports of raw materials used for the production of armaments andexports of products the proceeds of which are used by the belligerent to purchase arms and armaments.”) (internal
citations omitted).

984

an item is susceptible to use in armed conflict may depend on the character of the item.
Traditionally, contraband has been divided into two categories, absolute and conditional.
Absolute contraband consisted of goods whose character is such that they are obviously destinedfor use in armed conflict, such as munitions, weapons, uniforms, and the like. Conditional
contraband consisted of goods equally susceptible to either peaceful or warlike purposes, such as
foodstuffs, construction materials, and fuel. 226
Whether it is possible to distinguish between absolute contraband and conditional
contraband may depend on the extent to which the enemy government controls imports and thescale of the conflict. For example, during World War II, belligerent States largely did not
distinguish between absolute and conditional contraband because of the involvement of virtually
the entire population in support of the war effort and because the belligerent States exercised
governmental control over all imports. 227
15.12.1.2 Free Goods That Are Exempt From Capture as Contraband. Certain
goods qualify as “free goods,” meaning that they are exempt from capture by belligerent States
as contraband even though they are destined for enemy territory. Free goods include thefollowing:•

equipment exclusively intended for the treatment of wounded and sick members of armed
forces or for the prevention of disease, provided that the particulars regarding the voyageof such equipment have been notified to and approved by the opposing belligerent
State; 228•

consignments of certain types of relief goods (e.g., medical supplies and religious

226

2007 NWP 1-14M ¶7.4.1 (“Contraband consists of goods destined for the enemy of a belligerent and that may besusceptible to use in armed conflict. Traditionally, contraband has been divided into two categories: absolute andconditional. Absolute contraband consisted of goods the character of which made it obvious that they were destinedfor use in armed conflict, such as munitions, weapons, uniforms, and the like. Conditional contraband consisted ofgoods equally susceptible to either peaceful or warlike purposes, such as foodstuffs, construction materials, andfuel.”). See also The Peterhoff, 72 U.S. 28, 52-53 (1867) (“The classification of goods as contraband or notcontraband has much perplexed text writers and jurists. A strictly accurate and satisfactory classification is perhaps
impracticable; but that which is best supported by American and English decisions may be said to divide all
merchandise into three classes. Of these classes, the first consists of articles manufactured and primarily andordinarily used for military purposes in time of war; the second, of articles which may be and are used for purposesof war or peace, according to circumstances; and the third, of articles exclusively used for peaceful purposes.
Merchandise of the first class, destined to a belligerent country or places occupied by the army or navy of abelligerent, is always contraband; merchandise of the second class is contraband only when actually destined to themilitary or naval use of a belligerent; while merchandise of the third class is not contraband at all, though liable toseizure and condemnation for violation of blockade or siege.”).
227

2007 NWP 1-14M ¶7.4.1 (“The practice of belligerents during the Second World War collapsed the traditional
distinction between absolute and conditional contraband. Because of the involvement of virtually the entire
population in support of the war effort, the belligerents of both sides tended to exercise governmental control over
all imports. Consequently, it became increasingly difficult to draw a meaningful distinction between goods destinedfor an enemy government and its armed forces and goods destined for consumption by the civilian populace. As aresult, belligerents treated all imports directly or indirectly sustaining the war effort as contraband without making a
distinction between absolute and conditional contraband.”).
228

Refer to § 7.13 (Chartered Medical Transport Ships).

985

materials for civilians; clothing and medicine for children under fifteen, expectant
mothers, and maternity cases), under certain conditions; 229•

certain types of relief consignments intended for the benefit of the population of occupied
territory; 230•

items destined for POWs, including individual parcels and collective relief shipments
containing food, clothing, medical supplies, religious objects, and educational, cultural,and athletic articles; 231 and•other goods that are specifically exempted from capture by an applicable treaty or by aspecial arrangement between belligerent States. 232

In practice, neutral States have provided belligerent States of both sides with information
regarding the nature, timing, and route of shipments of goods constituting exceptions tocontraband, and obtained approval for their safe conduct and entry into belligerent owned or
occupied territory. 233
15.12.1.3 Contraband Lists. Belligerent States may declare contraband lists at theinitiation of hostilities to notify neutral States of the type of goods considered to be absolute orconditional contraband, as well as those not considered to be contraband at all (i.e., exempt or“free goods”). The precise nature of a belligerent State’s contraband list may vary according to
the circumstances of the conflict. 234

229

Refer to § 5.19.3 (Passage of Relief Consignments).

230

Refer to § 11.17 (Relief).

231

Refer to § 9.20.3 (Receipt of Individual and Collective Relief Shipments for POWs).

232

For example, HAGUE XI art. 1 (“The postal correspondence of neutrals or belligerents, whatever its official or
private character may be, found on the high seas on board a neutral or enemy ship, is inviolable. If the ship isdetained, the correspondence is forwarded by the captor with the least possible delay.”). See also TUCKER, THE
LAW OF WAR AND NEUTRALITY AT SEA 91 (“From a formal point of view it must probably be concluded that theseprovisions remain binding today upon the parties to Hague Convention XI. On the other hand, it is difficult to avoid
the conclusion that the events of the two World Wars have reduced the significance of these provisions almost to avanishing point.”).
233

1989 NWP 9 ¶7.4.1.2 (“It is customary for neutral nations to provide belligerents of both sides with information
regarding the nature, timing, and route of shipments of goods constituting exceptions to contraband and to obtainapproval for their safe conduct and entry into belligerent owned or occupied territory.”). Compare § 5.19.3.1(Technical Arrangements for the Passage and Distribution of Relief Consignments).
234

2007 NWP 1-14M ¶7.4.1 (“Belligerents may declare contraband lists at the initiation of hostilities to notify
neutral nations of the type of goods considered to be absolute or conditional contraband, as well as those notconsidered to be contraband at all (i.e., exempt or “free goods”). The precise nature of a belligerent’s contraband list
may vary according to the circumstances of the conflict.”); 1955 NWIP 10-2 ¶631b (“BELLIGERENTCONTRABAND DECLARATIONS. Upon the initiation of armed conflict, belligerents may declare contrabandlists, setting forth therein the classification of articles to be regarded as contraband, as well as the distinction to bemade between goods considered as absolute contraband and goods considered as conditional contraband. The
precise nature of a belligerent’s contraband list may vary according to the particular circumstances of the armed
conflict.”).

986

Although there has been no conflict of a similar scale and magnitude to World War II, inthe years following the conclusion of that conflict State practice indicates that, to the extent
international law may continue to require publication of contraband lists, the requirement may besatisfied by a listing of exempt goods. 235
15.12.2 Requirement of Enemy Destination. Contraband goods are liable to capture atany place beyond neutral territory if their destination is the territory belonging to, or occupied
by, the enemy.
15.12.2.1 Ultimate Destination – Doctrine of Continuous Voyage. It is immaterial
whether the carriage of contraband is direct, involves transshipment, or requires overlandtransport. 236 Under the doctrine of continuous voyage, the ultimate destination is determinative,
and contraband goods may be captured, even if there are neutral ports that are intended to bevisited between the point of capture and the ultimate destination. 237
15.12.2.2 Presumption of Destination of Enemy Territory in Certain Cases.
When contraband is involved, a destination of enemy-owned or enemy-occupied territory may bepresumed when:•

the neutral vessel is to call at an enemy port before arriving at a neutral port for which thegoods are documented;•

the goods are documented to a neutral port serving as a port of transit to an enemy, eventhough they are consigned to a neutral; or•

the goods are consigned “to order” or to an unnamed consignee, but are destined for aneutral State in the vicinity of enemy territory. 238

235

2007 NWP 1-14M ¶7.4.1 (“Though there has been no conflict of similar scale and magnitude since the Second
World War, post–World War II-practice indicates that, to the extent international law may continue to require
publication of contraband lists, the requirement may be satisfied by a listing of exempt goods.”).
236

2007 NWP 1-14M ¶7.4.1.2 (“It is immaterial whether the carriage of contraband is direct, involves
transshipment, or requires overland transport.”); 1998 NWP 9 ¶7.4.1.1 (same). Consider 1909 DECLARATION OFLONDON art. 30 (“Absolute contraband is liable to capture if it is shown to be destined to territory belonging to or
occupied by the enemy, or to the armed forces of the enemy. It is immaterial whether the carriage of the goods is
direct or entails transhipment or a subsequent transport by land.”).
237

The Pedro, 175 U.S. 354, 365-66 (1899) (“In The Circassian, it was ruled that the intent to violate a blockade,found as a fact, was not disproved by evidence of a purpose to call at a neutral port, not reached at time of capture,with ulterior destination to the blockaded port. In The Bermuda, the actual destination to a belligerent port, whether
ulterior or direct, was held to determine, the character of the transaction as a whole; that transhipment could notchange the effect of the pursuit of a common object by a common plan; and that if the cargo was contraband its
condemnation was justified, whether the voyage was to ports blockaded or to ports not blockaded; and so as to thevessel in the former case. And in The Springbok, it was held that an intention to tranship cargo at a neutral port did
not save it when destined for a blockaded port; that as to cargo, both in law and intent, the voyage from London to
the blockaded port was one voyage, and that the liability attached from the time of sailing if captured during any partof that voyage.”).
238

2007 NWP 1-14M ¶7.4.1.2 (“When contraband is involved, a destination of enemy owned or occupied territory
may be presumed when: 1. The neutral vessel is to call at an enemy port before arriving at a neutral port for which

987

These presumptions of enemy destination constitute sufficient cause for naval
commanders to order a capture. 239 However, these presumptions may be rebuttable during
subsequent prize court proceedings by an affirmative showing of innocent destination. 240
These presumptions of the destination of enemy territory are not sufficient to establishthat the property is destined for use by an enemy government or its armed forces, which would
be necessary to establish a basis for the forfeiture of the property if the property is classified asconditional contraband. 241
15.12.3 Certificate of Noncontraband Carriage. A certificate of noncontraband carriage
is a document issued by a belligerent consular or other designated official to a neutral vessel(navicert) or neutral aircraft (aircert) certifying that the cargo being carried has been examined,
usually at the initial place of departure, and has been found to be free of contraband. The
purpose of such a navicert or aircert is to facilitate belligerent control of contraband goods withminimal interference and delay of neutral commerce. 242 The navicert or aircert may be viewed
as a type of commercial passport. 243
The certificate is not a guarantee that the vessel or aircraft will not be subject to visit andsearch or that cargo will not be seized. (Changed circumstances, such as a change in status of thethe goods are documented; 2. The goods are documented to a neutral port serving as a port of transit to an enemy,even though they are consigned to a neutral; or 3. The goods are consigned ‘to order’ or to an unnamed consignee,
but are destined for a neutral nation in the vicinity of enemy territory.”); 1998 NWP 9 ¶7.4.1.1 (substantially thesame).
239

1955 NWIP 10-2 ¶631c(1) note 21 (“The circumstances creating a presumption of ultimate enemy destination
enumerated in subparagraphs 631c 1 and 2 are of concern to operating naval commanders for the reason thatcircumstances held to create a presumption of enemy destination constitute sufficient cause for capture. Before a
prize court each of these presumptions is rebuttable and whether or not a prize court will, in fact, condemn thecaptured cargo, and vessel (or aircraft), will depend upon a number of complex considerations with which an
operating naval commander need not be concerned.”).
240

See TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 272-73 (“In this connection the belligerent’s task has
been facilitated still further by the creation of a detailed set of presumptions governing hostile destination. Thus apresumption of enemy destination has been held to arise where goods are consigned ‘to order,’ or if the ships papers
do not indicate the real consignee of the goods, or if goods are merely consigned to a dealer or agent and theultimate buyer is unknown, or if the parties engaged in the transaction—though known—have or are suspected ofhaving enemy connections. In any of the foregoing circumstances the inference of an ultimate enemy destination
has been strong and could be displaced only by a positive showing that the goods in question had an innocent
destination.”).

241

Refer to § 15.12.1.1 (Distinction Between Absolute and Conditional Contraband).

242

2007 NWP 1-14M ¶7.4.2 (“A certificate of noncontraband carriage is a document issued by a belligerent consularor other designated official to a neutral vessel (navicert) or neutral aircraft (aircert) certifying that the cargo being
carried has been examined, usually at the initial place of departure, and has been found to be free of contraband.
The purpose of such a navicert or aircert is to facilitate belligerent control of contraband goods with minimal
interference and delay of neutral commerce.”); 1998 NWP 9 ¶7.4.2 (same).
243

See Malcolm Moos, The Navicert in World War II, 38 AJIL 115 (1944) (“In view of their favorable experience
with the ‘navicert’ during World War I, its revival by the British in December 1939, occasioned no surprise. The
term navicert is derived from the code word ‘navicert,’ and in essence is a commercial passport designed tofacilitated the passage of consignments through the British blockade.”). Refer to § 12.6 (Military Passports, SafeConducts, and Safeguards).

988

neutral vessel, between the time of issuance of the certificate and the time of interception at sea
may cause it to be invalidated.) Conversely, the absence of a navicert or aircert is not, in itself, avalid ground for seizure of cargo. 244
Navicerts and aircerts issued by one belligerent State do not limit the visit and searchrights of an opposing belligerent State. When a neutral ship or aircraft accepts a navicert oraircert from one belligerent State, this may affect how the other belligerent State views theneutrality of that aircraft or vessel. 245
A similar procedure was used during the Cuban Missile Crisis, when the United Statesissued clearance certificates (clearcerts). 246
15.13 BELLIGERENT RIGHT OF VISIT AND SEARCH OF MERCHANT VESSELS AND CIVIL AIRCRAFT
Belligerent warships and military aircraft have a right of visit and search of merchantvessels and civil aircraft outside of neutral territory.
15.13.1 Purposes of Visit and Search. The belligerent right of visit and search may beviewed as a necessary part of the belligerent’s right to capture enemy merchant vessels and civil
aircraft, and to capture neutral merchant vessels and civil aircraft that have engaged in violationsof neutrality. 247 Thus, for example, visit and search has been conducted with the object of: 248
2442007 NWP 1-14M ¶7.4.2 (“The certificate is not a guarantee that the vessel or aircraft will not be subject to visit
and search or that cargo will not be seized. (Changed circumstances, such as a change in status of the neutral vessel,
between the time of issuance of the certificate and the time of interception at sea may cause it to be invalidated.)
Conversely, absence of a navicert or aircert is not, in itself, a valid ground for seizure of cargo.”); 1998 NWP ¶7.4.2(same).
245

See TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 322-23 (“In this connection a problem of considerable
importance arises as a result of the attempt by belligerents to institute a system of passes for neutral shipping. In
principle, it is clear that such devices as the navicert and ships warrant are intended to establish an effective control
over the activities of neutral merchant vessels. Neutral merchant vessels by submitting to such a system thereby
ease the belligerent's task of patrolling the high seas in search either of contraband carriers or of blockade runners.
It seems reasonably well-established that a neutral merchant vessel in accepting a safe-conduct pass from abelligerent subjects itself to the control of the latter and performs an act of unneutral service. The same conclusion
would appear warranted in the case of a neutral vessel that cooperates with a belligerent by voluntarily applying for,and accepting, a navicert or ship’s warrant.”).
246

Press Release: U.S. Acts To Avoid Delays for Ships Transiting Waters in Vicinity of Cuba, Oct. 27, 1962, 47
DEPARTMENT OF STATE BULLETIN 747 (Nov. 12, 1962) (“The Department of State announced on October 27 theinstitution of a system of clearances to assist vessels which transit waters in the vicinity of Cuba and vessels destinedfor Cuban ports with cargoes containing no offensive weapons or associated materiel. The system, developed by theState, Defense, and Treasury Departments, is designed to avoid unnecessary delays and other difficulties arising outof the stoppage, inspection, or possible diversion of ships. The system is for the convenience of shipping, andclearances are obtainable upon application by ships’ owners, agents, or officers. A vessel departing a United States
port may obtain a special clearance from customs authorities at the port of departure. A vessel departing a foreign
port may obtain the clearance from an American consulate.”).
247

See, e.g., The Nereide, 13 U.S. 388, 427-28 (1815) (“Belligerents have a full and perfect right to capture enemy
goods and articles going to their enemy which are contraband of war. To the exercise of that right the right of searchis essential. It is a mean justified by the end. It has been truely denominated a right growing out of, and ancillary to
the greater right of capture. Where this greater right may be legally exercised without search, the right of search cannever arise or come into question.”).

989

•

ascertaining the character of the vessel or aircraft and nationality (including assessing
whether a vessel or aircraft that is flagged to a neutral State has acquired enemy characterby engaging in service to the enemy); 249•

verifying whether it conveys contraband cargo; 250•

verifying whether it has committed a breach of blockade; 251 or•verifying whether the vessel or aircraft has committed another violation of neutrality
making it liable to capture. 252

15.13.2 Types of Neutral Vessels and Aircraft That Are Exempt From Visit and Search.
Certain neutral vessels and aircraft are exempt from the belligerent right of visit and search: (1)neutral warships; (2) neutral State aircraft (including military aircraft); (3) ships of neutral Statesused only on government non-commercial service; and (4) neutral merchant vessels underconvoy of neutral warships of the same nationality, and neutral aircraft accompanied by neutral
military aircraft of the same nationality.
15.13.2.1 Neutral Warships. Neutral warships may not be subjected to visit andsearch because they have complete immunity from the jurisdiction of any State other than theflag State. 253
15.13.2.2 Neutral State Aircraft. Neutral State aircraft (including military
aircraft) are immune from visit and search by foreign States. 254
15.13.2.3 Ships of a Neutral State Used Only on Government Non-Commercial
Service. Ships owned or operated by a neutral State and used only on government noncommercial service may not be subjected to visit and search because they also have complete
immunity from the jurisdiction of any State other than the flag State. 255

248

1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 1(1) (“Warships of the belligerents have the rightto stop and visit on the high seas and in territorial waters that are not neutral any merchant ship with the object ofascertaining its character and nationality and of verifying whether it conveys cargo prohibited by international law
or has committed any violation of blockade.”).

249

Refer to § 15.14 (Acquisition of Enemy Character by Neutral-Flagged Merchant Vessels and Neutral-Marked
Civil Aircraft).
250

Refer to § 15.12 (Neutral Commerce and Carriage of Contraband).

251

Refer to § 13.10 (Blockade).

252

Refer to § 15.15.1 (Grounds for the Capture of Neutral Vessels and Aircraft).

253

Consider LOS CONVENTION art. 95 (“Warships on the high seas have complete immunity from the jurisdiction of
any State other than the flag State.”).
254

Refer to § 14.3.1 (State Versus Civil Aircraft); 14.3.3.1 (Military Aircraft – Rights and Liabilities).

255
Consider LOS CONVENTION art. 96 (“Ships owned or operated by a State and used only on government noncommercial service shall, on the high seas, have complete immunity from the jurisdiction of any State other than theflag State.”).

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15.13.2.4 Neutral Merchant Vessels Under Convoy of Neutral Warships of theSame Nationality and Neutral Aircraft Accompanied by Neutral Military Aircraft of the SameNationality. Neutral merchant vessels under convoy of neutral warships of the same nationality
are also exempt from visit and search. 256 However, the convoy commander may be required toprovide in writing to the commanding officer of an intercepting belligerent State’s warship
information as to the character of the vessels and their cargoes that would otherwise be obtainedby a visit and search. 257 Neutral merchant vessels under convoy of neutral warships of the samenationality are exempt from visit and search because the neutral State has provided an assurance
that the neutral vessel is not engaged in violations of neutrality. 258
If a convoy commander determines that a vessel under his or her charge possesses enemy
character or carries contraband cargo, the commander is obliged to withdraw his or her
protection from the offending vessel, making it liable to visit and search, and possible capture, by
opposing belligerent warships. 259
Neutral civil aircraft accompanied by neutral military aircraft of the same flag may also
be exempt from visit and search if the following two elements are met:•

the flag State of a neutral military aircraft warrants that the neutral civil aircraft is notcarrying contraband cargo; and•the commander of the neutral military aircraft provides to the intercepting belligerent
military aircraft upon request all information as to the character and cargo of the neutral

256

For example, John H. McNeill, Neutral Rights and Maritime Sanctions: The Effects of Two Gulf Wars, 31
VIRGINIA JOURNAL OF INTERNATIONAL LAW 631, 635 (1991) (“And in July 1987, eleven Kuwaiti-owned tankers
were registered under the U.S. flag and escorted by the U.S. Navy. To many, this reflagging procedure appeared to
be a logical expedient, not for repudiating the rules concerning contraband, but rather for protecting these vessels
against the attack-on-sight of neutral shipping, in addition to whatever U.S. foreign policy objectives the reflagging
served. In effect, the U.S. relied upon the ancient doctrine of ‘right of convoy’ under which belligerents cannot visit
and search convoyed ships and are to be satisfied with the declaration of the commander of the convoy that no cargo
which can be considered contraband is on board the convoyed ships.”).
257

Consider 1909 DECLARATION OF LONDON art. 61 (“Neutral vessels under national convoy are exempt fromsearch. The commander of a convoy gives, in writing, at the request of the commander of a belligerent warship, allinformation as to the character of the vessels and their cargoes, which could be obtained by search.”).
258

See General Report to the Conference, reprinted in JAMES BROWN SCOTT, THE DECLARATION OF LONDONFEBRUARY 26, 1909 177-78 (1920) (“The principle laid down is simple; a neutral vessel under the convoy of a warship of her own nationality is exempt from search. The reason for this rule is that the belligerent cruiser ought to beable to find in the assurances of the commander of the convoy as good a guaranty as would be afforded by theexercise of the right of search itself; in fact, she can not call in question the assurances given by the official
representative of a neutral Government without displaying a lack of international courtesy.”).
259

Consider 1909 DECLARATION OF LONDON art. 62 (“If the commander of the belligerent warship has reason tosuspect that the confidence of the commander of the convoy has been abused, he communicates his suspicions tohim. In such a case it is for the commander of the convoy alone to investigate the matter. He must record the resultof such investigation in a report, of which a copy is handed to the officer of the warship. If, in the opinion of thecommander of the convoy, the facts shown in the report justify the capture of one or more vessels, the protection of
the convoy must be withdrawn from such vessels.”).

991

civil aircraft that would otherwise be obtained by a visit and search. 260
15.13.3 Where Belligerents May Not Exercise the Right of Visit and Search. As an act ofhostility, the belligerent right of visit and search may not be conducted within neutral territory(e.g., a neutral State’s territorial seas and neutral airspace). 261 This prohibition on the exercise of
the belligerent right of visit and search extends to international straits overlapped by neutral
territorial seas and to archipelagic sea lanes. 262
15.13.4 Procedure for Visit and Search of Merchant Vessels and Aircraft. Belligerent
States have discretion in formulating their procedures for conducting the visit and search ofneutral merchant vessels and aircraft. 263 Generally, the belligerent warship or aircraft visits orintercepts the vessel or aircraft, shows its true colors, and provides a clear signal to the merchantvessel or civil aircraft that it is expected to submit to visit and search. 264
During armed conflict, specific rules of engagement or other special instructions may be
issued by the operational chain of command to provide guidance on the visit and search
procedure to be carried out by U.S. warships and military aircraft when exercising the belligerent
State’s right of visit and search of merchant vessels and civil aircraft. For example, the issuanceof certificates of non-contraband carriage may be part of such procedures. 265 In the absence ofspecific guidance from the operational chain of command, Military Department or Service

260

2007 NWP 1-14M ¶7.6.3 (“Neutral civilian aircraft accompanied by neutral military aircraft of the same flag are
exempt from visit and search if the neutral military aircraft (1) warrants that the neutral civilian aircraft is notcarrying contraband cargo and (2) provides to the intercepting belligerent military aircraft upon request suchinformation as to the character and cargo of the neutral civilian aircraft as would otherwise be obtained in visit andsearch.”).
261

See HAGUE XIII art. 2 (“Any act of hostility, including capture and the exercise of the right of search, committed
by belligerent war-ships in the territorial waters of a neutral Power, constitutes a violation of neutrality and is strictly
forbidden.”); 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 1(1) (“Warships of the belligerents
have the right to stop and visit on the high seas and in territorial waters that are not neutral any merchant ship withthe object of ascertaining its character and nationality and of verifying whether it conveys cargo prohibited byinternational law or has committed any violation of blockade.”).
262
Refer to § 15.8 (Passage of Belligerent Vessels and Aircraft Through International Straits and Archipelagic Sea
Lanes).
263

TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 336 (“Customary international law does not lay down
detailed rules governing the mode of conducting visit and search and belligerents have always enjoyed a certain
discretion in this regard. In general, however, a substantial measure of uniformity came to characterize thetraditional practices of states, and this uniformity was reflected in the special instructions issued by maritime powers
to their naval forces.”).

264

TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 336 (“Before calling upon a neutral merchantman tosubmit to visitation a belligerent warship is required to show its true colors. In addition, visitation must be precededby a clear signal on the part of the warship that the merchant vessel is expected to stop and bring to. The
notification of intention to visit may be accomplished by any of several means, e. g., by firing a blank charge, byinternational flag signal, or even by radio. Nor does international law prescribe the distance a belligerent warshipmust keep from the vessel being visited, which may vary according to the conditions of the sea, the size andcharacter of the visiting warship, and many other factors.”).

265

Refer to § 15.12.3 (Certificate of Noncontraband Carriage).

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regulations or guidance may provide the applicable procedures. 266
15.13.4.1 Use of Force During Visit and Search. Merchant vessels or civil
aircraft that comply with instructions given to them may not be made the object of attack;merchant ships or civil aircraft that refuse to comply may be stopped by force. 267 Merchantships or civil aircraft that resist visit and search assume the risk of resulting damage. 268 Suchvessels or aircraft also may be deemed to acquire the character of enemy merchant ships or civil
aircraft. 269
15.13.4.2 Visit and Search of Merchant Vessels by Military Aircraft. Belligerent
military aircraft have a right to conduct visit and search of merchant vessels. 270
Ordinarily, visit and search of a vessel by a belligerent State’s aircraft is accomplished bydirecting and escorting the merchant vessel to the vicinity of a belligerent warship, which would
carry out the visit and search at sea, or to a belligerent port. 271
15.13.4.3 Visit and Search of Civil Aircraft by Military Aircraft. Belligerent
military aircraft have a right to conduct visit and search of civil aircraft. 272 Such visit and searchis conducted through interception and, if necessary, diversion. 273

266

See, e.g., 2007 NWP 1-14M ¶7.6.1 (“In the absence of specific rules of engagement or other special instructions
issued by the operational chain of command during a period of armed conflict, the following procedure should be
carried out by U.S. warships exercising the belligerent right of visit and search of merchant vessels:”).
267

1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 1(1) (“If the merchant ship does not heed thesignal to stop, it may be pursued by the warship and stopped by force; outside of such a case the ship cannot be
attacked unless, after being hailed, it fails to observe the instructions given it.”).

268

See Eleanor, 15 U.S. 345, 358 (1817) (“To detain for examination is a right which a belligerant may exercise overevery vessel, not a national vessel, that he meets with on the ocean. And whatever may be the injury that casually
results to an individual from the act of another while pursuing the reasonable exercise of an established right, it is his
misfortune. The law pronounces it damnum absque injuria, and the individual from whose act it proceeds is liable
neither at law nor in the forum of conscience. And the principal right necessarily carries with it also all the means
essential to its exercise. Thus, in the present case, a vessel must be pursued in order to be detained for examination.
But if in the pursuit she had been dismasted, and upset or stranded, or run on shore and lost, it would have been an
unfortunate case, but the pursuing vessel would have stood acquitted.”).
269

Refer to § 15.14.2.2 (Acquiring the Character of an Enemy Merchant Vessel or Civil Aircraft).

270

2007 NWP 1-14M ¶7.6.2 (“Although there is a right of visit and search by military aircraft, there is noestablished international practice as to how that right is to be exercised.”).
271

2007 NWP 1-14M ¶7.6.2 (“Ordinarily, visit and search of a vessel by an aircraft is accomplished by directing andescorting the vessel to the vicinity of a belligerent warship, which will carry out the visit and search, or to abelligerent port.”).
272

2007 NWP 1-14M ¶7.6.3 (“The right of a belligerent military aircraft to conduct visit and search of a civilian
aircraft to ascertain its true identity (enemy or neutral), the nature of its cargo (contraband or ‘free goods’), and themanner of its employment (innocent or hostile) is now well established in the law of armed conflict.”).
273

Refer to § 14.5.1 (Interception); § 14.5.2 (Diversion of Aircraft).

993

15.14 ACQUISITION OF ENEMY CHARACTER BY NEUTRAL-FLAGGED MERCHANT VESSELS AND
NEUTRAL-MARKED CIVIL AIRCRAFT
All vessels operating under an enemy flag, and all aircraft bearing enemy markings,
possess enemy character. However, the fact that a ship flies a neutral flag, or that an aircraft
bears neutral markings, does not necessarily establish the neutral character of the vessel oraircraft. Vessels or aircraft may acquire enemy character from (1) the ownership or control ofthe vessel or aircraft, or (2) their conduct.
15.14.1 Acquisition of Enemy Character by Vessels or Aircraft Through Belligerent
Ownership or Control. Any merchant vessel or civil aircraft that is owned or controlled by anenemy State or person has enemy character, regardless of whether it is operating under a neutral
flag or bears neutral markings. 274 A neutral flag or neutral markings cannot serve as a device toprotect vessels or aircraft from seizure whose actual status indicates either continued ownershipor control by individuals who themselves possess enemy character. 275 Such vessels may besubject to treatment as enemy merchant vessels or civil aircraft, including being subject tocapture. 276
15.14.2 Acquisition of Enemy Character by Vessels or Aircraft Through Conduct.
Certain conduct by vessels or aircraft may lead them to acquire enemy character and make themliable to treatment as either (1) enemy warships or military aircraft, or (2) enemy merchant ships
or civil aircraft.
Humanitarian assistance given to the wounded, sick, or shipwrecked of belligerent forcesby neutral vessels does not lead to such vessels acquiring enemy character if such assistance isprovided in accordance with the GWS-Sea. 277
15.14.2.1 Acquiring the Character of an Enemy Warship or Military Aircraft.
Neutral merchant vessels and civil aircraft acquire enemy character, and may be treated by abelligerent as enemy warships and military aircraft, when engaged in either of the following
acts: 278

274

See 1955 NWIP 10-2 ¶501 (“Any merchant vessel or aircraft owned or controlled by or for an enemy State,enemy persons, or any enemy corporation possesses enemy character, regardless of whether or not such a vessel oraircraft operates under a neutral flag or bears neutral markings.”).

275

See TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 75 (“For the practice of states is clear that even though
entitled to fly a neutral flag—and thus possessing a neutral nationality—a vessel may nevertheless be considered as
impressed with an enemy character. The neutral flag cannot serve as a device to protect vessels from seizure whose
actual status indicates either continued ownership or control by individuals who themselves possess enemy
character.”).
276

Refer to § 13.5 (Enemy Merchant Vessels).

277

Refer to § 7.4.6 (Collection and Care of the Wounded, Sick, and Shipwrecked by Neutral Vessels); § 7.12.1.3(Authorized Neutral Civilian Hospital Ships).
278

See, e.g., 2007 NWP 1-14M ¶7.5.1 (“Neutral merchant vessels and civil aircraft acquire enemy character andmay be treated by a belligerent as enemy warships and military aircraft when engaged in either of the following acts:
1. Taking a direct part in the hostilities on the side of the enemy 2. Acting in any capacity as a naval or military
auxiliary to the enemy’s armed forces.”); 1955 NWIP 10-2 ¶501a (“Neutral merchant vessels and aircraft acquire

994

•

taking a direct part in the hostilities on the side of the enemy; or•

acting in any capacity as a naval or military auxiliary to the enemy’s armed forces. 279

For example, such vessels and aircraft may be made the object of attack outside of neutral
territory. 280
15.14.2.2 Acquiring the Character of an Enemy Merchant Vessel or Civil
Aircraft. Neutral merchant vessels and civil aircraft acquire enemy character and may be treatedby a belligerent as enemy merchant vessels or civil aircraft when engaged in either of thefollowing acts: 281•

operating directly under enemy control, orders, charter, employment, or direction; or•resisting an attempt to establish identity, including resisting visit and search. 282

For example, such vessels and aircraft may be captured and, under certain circumstances,
destroyed. 283
15.15 CAPTURE OF NEUTRAL VESSELS AND AIRCRAFT
Certain neutral merchant vessels and civil aircraft may be captured outside neutral
territory.
15.15.1 Grounds for the Capture of Neutral Vessels and Aircraft. Neutral-flagged
merchant vessels or neutral-marked civil aircraft that have acquired enemy character are liable toenemy character and are liable to the same treatment as enemy warships and military aircraft (see paragraph 503a)when engaging in the following acts: 1. Taking a direct part in the hostilities on the side of an enemy; 2. Acting inany capacity as a naval or military auxiliary to an enemy’s armed forces.”).
279

See also TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 321 (“The general principle involved isreasonably clear, and no attempt need be made to enumerate all of the acts that may result in this assimilation to an
enemy’s armed forces. It is not the mere fact of assisting a belligerent that permits this severe treatment. Nor is it
simply the consideration that the belligerent exercises a close control and direction over the neutral merchant vessel.
The decisive consideration is rather that the services rendered are in direct support of the belligerent’s military
operations. It is this support, leading as it does to the identification of the neutral merchant vessel (or aircraft) withthe belligerent’s naval or military forces, that permits a treatment similar to that meted out to these forces.”).
280

Refer to § 13.4 (Enemy Warships).

281

See, e.g., 2007 NWP 1-14M ¶7.5.2 (“Neutral merchant vessels and civil aircraft acquire enemy character andmay be treated by a belligerent as enemy merchant vessels or civil aircraft when engaged in either of the following
acts: 1. Operating directly under enemy control, orders, charter, employment, or direction 2. Resisting an attempt toestablish identity, including resisting visit and search.”); 1955 NWIP 10-2 ¶501b (“Neutral merchant vessel andaircraft acquire enemy character and are liable to the same treatment as enemy merchant vessels and aircraft (seeparagraph 503b), when engaging in the following acts: 1. Operating directly under enemy control, orders, charter,
employment, or direction; 2. Resisting an attempt to establish identity, including visit and search.”).
282

Refer to § 15.13.4.1 (Use of Force During Visit and Search).

283

Refer to § 13.5 (Enemy Merchant Vessels).

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capture. 284 In addition, neutral merchant vessels and civil aircraft are, in general, liable tocapture by a belligerent State’s warships and military aircraft if performing any of the following
acts: 285•

carrying contraband; 286•

carrying personnel in the military or public service of the enemy; 287•

communicating information in the interest of the enemy; 288•

breaching or attempting to breach a blockade; 289•

violating regulations established by a belligerent within the immediate area of naval
operations; 290

284

Refer to § 15.14 (Acquisition of Enemy Character by Neutral-Flagged Merchant Vessels and Neutral-Marked
Civil Aircraft).
285

2007 NWP 1-14M ¶7.10 (“Neutral merchant vessels and civil aircraft are liable to capture by belligerent
warships and military aircraft if engaged in any of the following activities: 1. Avoiding an attempt to establish
identity 2. Resisting visit and search 3. Carrying contraband 4. Breaching or attempting to breach blockade 5.
Presenting irregular or fraudulent papers; lacking necessary papers; or destroying, defacing, or concealing papers 6.
Violating regulations established by a belligerent within the immediate area of naval operations 7. Carrying
personnel in the military or public service of the enemy 8. Communicating information in the interest of theenemy.”); 1955 NWIP 10-2 ¶503d (“NEUTRAL MERCHANT VESSELS AND AIRCRAFT are in general liable to capture if
performing any of the following acts: 1. Carrying contraband (see paragraph 631d). 2. Breaking, or attempting to
break, blockade (see paragraph 632g). 3. Carrying personnel in the military or public service of an enemy. 4.
Transmitting information in the interest of an enemy. 5. Avoiding an attempt to establish identity, including visit
and search. 6. Presenting irregular or fraudulent papers; lacking necessary papers; destroying, defacing, orconcealing papers. 7. Violating regulations established by a belligerent within the immediate area of naval
operations (see paragraph 430b).”).
286

Refer to § 15.12 (Neutral Commerce and Carriage of Contraband).

287

Cf. 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 12 (“The neutral vessel shall be seized and ingeneral subjected to the same treatment as enemy merchantmen: ... d) When actually and exclusively destined fortransporting enemy troops ... .”). Consider 1909 DECLARATION OF LONDON art. 45 (“A neutral vessel will becondemned and will, in a general way, receive the same treatment as a neutral vessel liable to condemnation for
carriage of contraband: (1) If she is on a voyage specially undertaken with a view to the transport of individual
passengers who are embodied in the armed forces of the enemy, … . (2) If, to the knowledge of either the owner,
the charterer, or the master, she is transporting a military detachment of the enemy, or one or more persons who, inthe course of the voyage, directly assist the operations of the enemy.”).
288

Cf. 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 12 (“The neutral vessel shall be seized and ingeneral subjected to the same treatment as enemy merchantmen: ... d) When actually and exclusively destined ... forthe transmission of information on behalf of the enemy.”). Consider 1909 DECLARATION OF LONDON art. 45 (“Aneutral vessel will be condemned and will, in a general way, receive the same treatment as a neutral vessel liable tocondemnation for carriage of contraband: (1) If she is on a voyage especially undertaken … with a view to thetransmission of intelligence in the interest of the enemy.”).
289

Refer to § 13.10.4 (Breach and Attempted Breach of Blockade).

290

Refer to § 13.8 (Belligerent Control of the Immediate Area of Naval Operations).

996

•

avoiding an attempt to establish identity, including visit and search; 291 or•presenting irregular or fraudulent papers; lacking necessary papers; or destroying,defacing, or concealing papers. 292

15.15.2 Procedure for Capture and Condemnation. Belligerent States have discretion in
formulating their procedures for conducting the capture and condemnation of neutral merchantvessels and aircraft. 293 Prior exercise of the right of visit and search is not required for thecapture of neutral-flagged vessels or neutral-marked aircraft that have acquired enemy status, if
positive determination of status can be obtained by other means. 294
Captured neutral merchant vessels and civil aircraft are sent to a port or airfield under abelligerent State’s jurisdiction as a prize for adjudication by a prize court. Ordinarily, abelligerent State’s warship will place a prize master and prize crew on board a captured vessel
for this purpose. Should that be impracticable, the prize may be escorted into port by abelligerent State’s warship or military aircraft. In the latter circumstances, the prize must obey
the instructions of its escort or risk forcible measures. 295
A prize may not be brought into a neutral port, except under emergency circumstances. 296
A prize court cannot be set up by a belligerent on neutral territory or on a vessel in neutral

291

Refer to § 15.13.4 (Procedure for Visit and Search of Merchant Vessels and Aircraft).

292

See Carrington v. Merchants’ Ins. Co., 33 U.S. 495, 521-22 (1834) (Story, J.) (“The belligerent has a right torequire a frank and bona fide conduct on the part of neutrals, in the course of their commerce in times of war; and if
the latter will make use of fraud, and false papers, to elude the just rights of the belligerents, and to cloak their own
illegal purposes, there is no injustice in applying to them the penalty of confiscation. The taint of the fraud travels
with the party and his offending instrument during the whole course of the voyage, and until the enterprise has, inthe understanding of the party himself, completely terminated. There are many analogous cases in the prize law,where fraud is followed by similar penalties. Thus, if a neutral will cover up enemy’s property under false papers,
which also cover his own property, prize courts will not disentangle the one from the other, but condemn the wholeas good prize.”).

293

See 1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 2 (“Both the detention of the vessel and its
crew for violation of neutrality shall be made in accordance with the procedure which best suits the state effecting it
and at the expense of the transgressing ship. Said state, except in the case of grave fault on its part, is not
responsible for damages which the vessel may suffer.”).
294

1955 NWIP 10-2 ¶502a (“Historically, visit and search was considered the only legally acceptable method for
determining whether or not a merchant vessel was subject to capture. It is now recognized that changes in warfare
have rendered this method either hazardous or impracticable in many situations. In the case of enemy merchantvessels and aircraft and neutral merchant vessels and aircraft acquiring enemy character as described in thepreceding article, the belligerent right of capture (and, exceptionally, destruction as described in paragraph 503b)
need not be preceded by visit and search, provided that a positive determination of status can be obtained by othermethods.”).
295

2007 NWP 1-14M ¶7.10 (“Captured vessels and aircraft are sent to a port or airfield under belligerent jurisdiction
as a prize for adjudication by a prize court. Ordinarily, a belligerent warship will place a prize master and prizecrew on board a captured vessel for this purpose. Should that be impracticable, the prize may be escorted into port
by a belligerent warship or military aircraft. In the latter circumstances, the prize must obey the instructions of its
escort or risk forcible measures.”); 1998 NWP 9 ¶7.10 (substantially the same).
296

Refer to § 15.9.5 (Prizes in Neutral Ports or Roadsteads).

997

waters. 297
15.15.2.1 Use of Force During Capture. Neutral vessels or aircraft attempting toresist proper capture lay themselves open to forcible measures by a belligerent State’s warships
and military aircraft, and assume the risk of resulting damage. 298 The same rule applies toresistance during visit and search. 299
15.15.3 Destruction of Neutral Prizes. Although the destruction of a neutral prize is not
absolutely forbidden, it involves a much more serious responsibility than the destruction of an
enemy prize. 300 Thus, a higher standard is applicable than for the destruction of enemy prizes. 301
Every reasonable effort should be made to avoid destruction of captured neutral vessels
and aircraft. 302 A capturing officer, therefore, should not order such destruction without being
entirely satisfied that the prize can neither be sent to a belligerent State port or airfield nor, in his
or her opinion, properly be released. 303
Should it become necessary that the prize be destroyed, the capturing officer must
provide for the safety of the passengers and crew. 304 In that event, all documents and papers
relating to the prize should be preserved. If practicable, the personal effects of passengers should
also be safeguarded. 305

297

HAGUE XIII art. 4 (“A Prize Court cannot be set up by a belligerent on neutral territory or on a vessel in neutral
waters.”).

298

See, e.g., 2007 NWP 1-14M ¶7.10 (“Neutral vessels or aircraft attempting to resist proper capture lay themselvesopen to forcible measures by belligerent warships and military aircraft and assume all risk of resulting damage.”);1989 NWP 9 ¶7.9 (same).
299

Refer to § 15.13.4.1 (Use of Force During Visit and Search).

300

1955 NWIP 10-2 ¶509e (“Although the destruction of a neutral prize is not absolutely forbidden, it involves amuch more serious responsibility than the destruction of an enemy prize.”).

301

Refer to § 13.5.1.3 (Destruction of Captured Enemy Merchant Vessels).

302

2006 AUSTRALIAN MANUAL ¶6.59 (“Every effort should be made to avoid destruction of a captured neutral
vessel.”).

303
1955 NWIP 10-2 ¶509e (“A capturing officer, therefore, should never order such destruction without being
entirely satisfied that the military reasons therefore justify it, i.e. under circumstances such that a prize can neither besent in nor, in his opinion, properly released.”).
304

1928 PAN AMERICAN MARITIME NEUTRALITY CONVENTION art. 1(1) (“The ship shall not be rendered incapableof navigation before the crew and passengers have been placed in safety.”); Treaty for the Limitation and Reductionof Naval Armament, art. 22, Apr. 22, 1930, 46 STAT. 2858, 2881-82 (“In particular, except in the case of persistent
refusal to stop on being duly summoned, or of active resistance to visit or search, a warship, whether surface vesselor submarine, may not sink or render incapable of navigation a merchant vessel without having first placed
passengers, crew and ship’s papers in a place of safety. For this purpose the ship's boats are not regarded as a placeof safety unless the safety of the passengers and crew is assured, in the existing sea and weather conditions, by theproximity of land, or the presence of another vessel which is in a position to take them on board.”). Consider
Procès-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of London of April 22,
1930, Nov. 6, 1936, 173 LNTS 353, 357 (same).
305

1955 NWIP 10-2 ¶509e (“Should the necessity for the destruction of a neutral prize arise, it is the duty of thecapturing officer to provide for the safety of the passengers and crew. All documents and papers relating to a neutral998

15.15.4 Personnel on Board Captured Neutral Vessels and Aircraft.
15.15.4.1 Officers and Crews of Captured Neutral Merchant Vessels and Civil
Aircraft. The officers and crews of captured neutral merchant vessels and civil aircraft who arenationals of a neutral State should not be made POWs, 306 even if the vessel or aircraft has
acquired the character of enemy merchant vessels or aircraft. 307 However, if the vessel oraircraft has acquired the character of an enemy warship or military aircraft, 308 the officers andcrew may be held as POWs. 309
15.15.4.2 Enemy Nationals Found Onboard Neutral Merchant Vessels and Civil
Aircraft. Belligerents have a right to remove certain enemy persons from neutral vessels or
aircraft, even if there are no grounds for the capture of the vessel or aircraft as prize. 310 Enemy
nationals found onboard a neutral State’s merchant vessels or civil aircraft as passengers whoare:•a current member of an enemy military force; 311•

en route to join, or be incorporated into, an enemy’s armed forces;•

employed in the public service of the enemy State; orprize should be saved. If practicable, the personal effects of passengers should be saved. Every case of destructionof a neutral prize should be reported promptly to a higher command.”).
306

1955 NWIP 10-2 ¶513a (“The officers and crews of captured neutral merchant vessels and aircraft who arenationals of a neutral State should not be made prisoners of war.”). See also TUCKER, THE LAW OF WAR AND
NEUTRALITY AT SEA 347 (“In seizing neutral vessels the belligerent incurs certain duties that have long enjoyed thesanction of state practice. Unless the neutral nationals serving as officers and crew of neutral vessels have taken a
direct part in the hostilities they may not be treated as prisoners of war.”).
307

Refer to § 15.14.2.2 (Acquiring the Character of an Enemy Merchant Vessel or Civil Aircraft).

308

Refer to § 15.14.2.1 (Acquiring the Character of an Enemy Warship or Military Aircraft).

309

See 2007 NWP 1-14M ¶7.10.2 (“This rule applies equally to the officers and crews of neutral vessels and aircraftthat assumed the character of enemy merchant vessels or aircraft by operating under enemy control or resisting visit
and search. If, however, the neutral vessels or aircraft had taken a direct part in the hostilities on the side of theenemy or had served in any way as a naval or military auxiliary for the enemy, they thereby assumed the characterof enemy warships or military aircraft and, upon capture, their officers and crew may be interned as prisoners ofwar.”); 1955 NWIP 10-2 ¶513a endnote 41 (“This paragraph is applicable as well to the officers and crews,
nationals of a neutral state, of captured neutral merchant vessels and aircraft which have acquired enemy character
and which are liable to the same treatment as enemy merchant vessels and aircraft, as described in paragraph 501b.
Hence, a distinction must be made between the treatment accorded to neutral merchant vessels acquiring enemy
character, and the treatment accorded to the personnel of such vessels. There is a clear exception, however, in thecase of personnel of neutral vessels and aircraft which take a direct part in the hostilities on the side of an enemy orwhich serve in any way as a naval or military auxiliary for an enemy.”).
310

TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 328 (“Despite neutral opposition during World War I toconceding any belligerent right to remove enemy persons from neutral merchant vessels at sea, it would now seem
that—in principle—the practice of states may be regarded as having sanctioned this belligerent measure.”).
311
Consider DECLARATION OF LONDON art. 47 (“Any individual embodied in the armed forces of the enemy who isfound on board a neutral merchant vessel, may be made a prisoner of war, even though there be no ground for thecapture of the vessel.”).

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•

engaged in, or suspected of engagement in, service in the interests of the enemy State; 312

also may be interned until a determination of their status has been made. 313
15.16 BELLIGERENT FORCES TAKING REFUGE IN NEUTRAL TERRITORY
Neutral States have rights and duties with respect to the treatment of belligerent State
forces that enter, or seek to enter, their territory. Generally, a neutral State is required to intern abelligerent State’s forces to ensure that they do not return to the armed conflict. 314
15.16.1 Discretion of the Neutral State in Offering Asylum to Belligerent Forces Seeking
Refuge. A neutral State has discretion in whether to permit belligerent forces seeking refuge toenter its territory.
312

CDR Joe Munster, Removal of Persons from Neutral Shipping, THE JAG JOURNAL: THE OFFICE OF THE JUDGEADVOCATE JOURNAL OF THE NAVY 3, 18 (Oct. 1952) (“It appears unlikely that the old rules concerning the removalof persons from neutral shipping can much longer survive, even extended to include reservists. With the increasing
development of science it would appear foolhardly for a nation to permit an Oppenheimer, a Millikan, a Fermi, an
Einstein, or any accomplished atomic or neuclear [sic] physicist to return to his own country, if that country be an
opposing belligerent. An expert in guided missiles would be more important to a belligerent country than an
ordinary soldier; and notwithstanding the expert is not ‘embodied in the armed services’ it would appear that therules and regulations of international law must be amended to bring them into line with the requirements ofbelligerent necessity. It does not appear that neutrals can properly maintain that no persons other than thoseconnected with the military, either entirely or in a reserve status, may be removed from neutral shipping.”).
313

2007 NWP 1-14M ¶7.10.2 (“Enemy nationals found on board neutral merchant vessels and civil aircraft as
passengers who are actually embodied in the military forces of the enemy, who are en route to serve in the enemy’s
armed forces, who are employed in the public service of the enemy, or who may be engaged in or suspected ofservice in the interests of the enemy may be made prisoners of war. All such enemy nationals may be removed fromthe neutral vessel or aircraft whether or not there is reason for its capture as a neutral prize.”); 1955 NWIP 10-2
¶513b (“Enemy nationals found on board neutral merchant vessels and aircraft as passengers who are actuallyembodied in the military forces of an enemy, or who are en route to serve in an enemy’s military forces, or who areemployed in the public service of an enemy, or who may be engaged in or suspected of service in the interests of an
enemy may be made prisoners of war.”).
314

For example, I REPORT OF THE INTERNATIONAL COMMITTEE OF THE RED CROSS ON ITS ACTIVITIES DURING THE
SECOND WORLD WAR (SEPTEMBER 1, 1939 - JUNE 30, 1947) 557 (1948) (“Neutral States. – The Swiss Government
agreed, in June 1940, to receive on their territory and to intern 32,000 men of the 45th French Army Corps and13,000 men of the 2nd Polish Division. After the repatriation of the French internees in January 1941, the Polish
Division remained, and in 1943, the authorities interned 23,000 men of the Italian forces. In addition, individualinternments during hostilities amounted to 7,000 combatants belonging to 37 different nationalities. In September
1939, Rumania received 20,000 men of the Polish forces, who were interned. Hungary received 36,000, Lithuania
14,000 and Latvia 1,600. Other neutral countries gave refuge to a limited number of military internees of various
nationalities.”); Ex parte Toscano, 208 F. 938, 939 (S.D. CA 1913) (“That for several days prior to April 13, 1913,
an armed force of the Constitutionalist army attacked the same town of Naco, and on April 13, 1913, the petitioners
and other Federalist troops occupying the said town were defeated and driven out of said town of Naco, and were
pursued by the victorious Constitutionalist troops, and to avoid surrendering to the Constitutionalist force, theFederalist troops fled with their arms across the boundary line between the United States and Mexico, and sought
refuge and asylum from the pursuing enemy in the United States. That immediately upon crossing the said neutral
boundary and reaching United States soil, the said petitioners and other Federalist troops belonging to said
belligerent army voluntarily surrendered themselves to the armed forces of the United States, which said armed
forces of the United States, acting under authority of the President of the United States, thereupon disarmed said
belligerent troops and detained and interned them pending the removal of said belligerent troops to a point within
the territory of the United States at a distance from the theater of said civil war.”).

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15.16.1.1 Neutral Right to Deny Access or to Impose Conditions on Belligerent
Forces. A neutral State is not bound to permit a belligerent State’s forces to enter its territory. 315
The neutral State may impose conditions on belligerent forces seeking refuge in its territory. 316
In cases of large bodies of belligerent forces seeking refuge in neutral territory, these conditions
will usually be stipulated in an agreement concluded by the representatives of the neutral Stateand the senior officer of the forces. 317
15.16.1.2 Neutral Duty to Disarm and Intern the Belligerent Forces. If thebelligerent forces are permitted to seek refuge in neutral territory, the neutral State must takeappropriate measures to ensure that these forces will no longer participate in the armed conflict.
If such measures were not taken, then the neutral State’s territory might serve as an unlawful
sanctuary or base of operations for the belligerent. 318
Thus, belligerent forces received in neutral territory must be disarmed, and appropriate
measures must be taken to prevent their leaving the neutral State. 319 In particular, a neutral State
that receives on its territory personnel belonging to the belligerent forces shall intern them, as far
as possible, at a distance from the theater of war. 320 For example, if belligerent military aircraft
land in a neutral State, that State must intern the aircraft, aircrew, and accompanying military
personnel for the duration of the war. 321
15.16.2 Neutral Reception of the Wounded, Sick, and Shipwrecked. Like otherbelligerent personnel received in neutral land territory, the wounded, sick, and shipwrecked who
are received within a neutral jurisdiction are also generally to be guarded so that they can nolonger participate in hostilities.
However, ground transports of belligerent wounded and sick personnel may be
authorized to pass through neutral land territory by special agreement. 322
3151956 FM 27-10 (Change No. 1 1976) ¶533 (“A neutral is not bound to permit belligerent troops to enter its
territory.”).
316

1956 FM 27-10 (Change No. 1 1976) ¶534 (“If troops or soldiers of a belligerent are permitted to seek refuge inneutral territory, the neutral is authorized to impose the terms upon which they may do so.”).
317

1956 FM 27-10 (Change No. 1 1976) ¶534 (“In cases of large bodies of troops seeking refuge in neutral territory,these conditions will usually be stipulated in a convention drawn up by the representatives of the neutral power andthe senior officer of the troops.”).
318

Refer to § 15.5 (Prohibition on the Use of Neutral Territory as a Base of Operations).

319

1956 FM 27-10 (Change No. 1 1976) ¶533 (“On the other hand, it may permit them to do so without violating its
neutrality, but the troops must be interned or confined in places designated by the neutral. They must be disarmed
and appropriate measures must be taken to prevent their leaving the neutral country.”).
320

HAGUE V art. 11 (“A neutral Power which receives on its territory troops belonging to the belligerent armies shallintern them, as far as possible, at a distance from the theatre of war.”).

321

FINAL REPORT ON THE PERSIAN GULF WAR 627 (“Under Article 11 of Hague V and traditional law of war
principles regarding neutral rights and obligations, when belligerent military aircraft land in a nation not party to aconflict, the neutral must intern the aircraft, aircrew, and accompanying military personnel for the duration of thewar.”).

322

Refer to § 15.18.1 (Authorized Ground Transports of Wounded and Sick Combatants Through Neutral Territory).

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15.16.2.1 Wounded, Sick, and Shipwrecked Landed in Neutral Ports. Wounded,
sick, or shipwrecked persons who are landed in neutral ports with the consent of the local
authorities shall, failing arrangements to the contrary between the neutral State and thebelligerent States, be so guarded by the neutral State, where so required by international law, thatsuch persons cannot again take part in operations of war. 323
The costs of hospital accommodation and internment shall be borne by the belligerent
State on whom the wounded, sick, or shipwrecked persons depend. 324
15.16.2.2 Wounded, Sick, and Shipwrecked Taken Aboard a Neutral State’s
Warship or Aircraft. If wounded, sick, or shipwrecked persons are taken on board a neutral
State’s warship or a neutral State’s military aircraft, it shall be ensured, where so required byinternational law, that they can take no further part in operations of war. 325
15.16.2.3 Wounded and Sick Disembarked From Belligerent Medical Aircraft.
Unless otherwise agreed between the neutral State and the belligerent States, the wounded andsick who are disembarked, with the consent of the local authorities, on neutral territory by
medical aircraft, shall be detained by the neutral State, where so required by international law, insuch a manner that they cannot again take part in military operations. 326
The cost of their accommodation and internment shall be borne by the State on which
they depend. 327
15.16.3 Conditions of Internment in a Neutral State. The neutral State may keep
belligerent forces in camps and even confine them in military compounds or in places set apartfor the purpose of internment. 328 Belligerent forces should be interned, as far as possible, at a323

GWS-SEA art. 17 (“Wounded, sick or shipwrecked persons who are landed in neutral ports with the consent of
the local authorities, shall, failing arrangements to the contrary between the neutral and the belligerent Powers, be soguarded by the neutral Power, where so required by international law, that the said persons cannot again take part inoperations of war.”).
324

GWS-SEA art. 17 (“The costs of hospital accommodation and internment shall be borne by the Power on whom
the wounded, sick or shipwrecked persons depend.”).

325

GWS-SEA art. 15 (“If wounded, sick, or shipwrecked persons are taken on board a neutral warship or a neutral
military aircraft, it shall be ensured, where so required by international law, that they can take no further part inoperations of war.”).
326

GWS art. 37 (“Unless otherwise agreed between the neutral Power and the Parties to the conflict, the wounded
and sick who are disembarked, with the consent of the local authorities, on neutral territory by medical aircraft, shallbe detained by the neutral Power, where so required by international law, in such a manner that they cannot again
take part in operations of war.”); GWS-SEA art. 40 (same).
327

GWS art. 37 (“The cost of their accommodation and internment shall be borne by the Power on which they
depend.”); GWS-SEA art. 40 (same).
328

HAGUE V art. 11 (“It may keep them in camps and even confine them in fortresses or in places set apart for thispurpose.”).

1002

distance from the theater of war. 329
15.16.3.1 Provision of POW Treatment and Application of the GWS and GWSSea by Analogy. Under Article 4B(2) of the GPW, persons who are entitled to POW status if
they fall into the power of the enemy during international armed conflict are generally entitled to
POW treatment, as a minimum, if they are interned by a neutral State under its duties underinternational law. 330
Provisions of the GWS and GWS-Sea apply by analogy to wounded and sick, tomembers of the medical personnel, and to chaplains of the armed forces of the parties to theconflict, who are received or interned in neutral territory, as well as to deceased persons of aState that is a party to a conflict found there. 331
15.16.3.2 Belligerent State Acting as the Protecting Power. Where diplomatic
relations exist between the parties to the conflict and the neutral or non-belligerent Powerconcerned, the parties to a conflict on whom these persons depend shall be allowed to perform
towards them the functions of a Protecting Power as provided in the GPW, without prejudice tothe functions that these parties normally exercise in conformity with diplomatic and consular
usage and treaties. 332
15.16.3.3 Reimbursement of Expenses at the Conclusion of Peace. In the absenceof a special convention to the contrary, the neutral Power shall supply the interned with the food,clothing, and relief required by humanity. 333 At the conclusion of peace, the neutral Power’s
329

HAGUE V art. 11 (“A neutral Power which receives on its territory troops belonging to the belligerent armies shallintern them, as far as possible, at a distance from the theatre of war.”). Refer to § 9.11.4.1 (Avoidance of the
Combat Zone); § 9.11.3 (Location of POW Camps).

330

GPW art. 4B (“The following shall likewise be treated as prisoners of war under the present Convention: … (2)The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral
or non-belligerent Powers on their territory and whom these Powers are required to intern under international law,
without prejudice to any more favourable treatment which these Powers may choose to give and with the exceptionof Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties tothe conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power.
Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed toperform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice
to the functions which these Parties normally exercise in conformity with diplomatic and consular usage andtreaties.”). Refer to § 9.3.3 (Persons Entitled to POW Treatment).
331

GWS art. 4 (“Neutral Powers shall apply by analogy the provisions of the present Convention to the wounded
and sick, and to members of the medical personnel, and to chaplains of the armed forces of the Parties to theconflict, received or interned in their territory, as well as to dead persons found.”); GWS-SEA art. 5 (“Neutral
Powers shall apply by analogy the provisions of the present Convention to the wounded, sick and shipwrecked, andto members of the medical personnel and to chaplains of the armed forces of the Parties to the conflict received orinterned in their territory, as well as to dead persons found.”).
332

GPW art. 4B(2) (“Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend
shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention,
without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular
usage and treaties.”).
333

HAGUE V art. 12 (“In the absence of a special convention to the contrary, the neutral Power shall supply theinterned with the food, clothing, and relief required by humanity. At the conclusion of peace the expenses caused by
the internment shall be made good.”).

1003

expenses incurred supporting the internment shall be made good. 334
The provisions of the GPW regarding the costs of POW internment and the financial
resources of POWs are not applicable to the situation of persons treated as POWs who have beeninterned by a neutral State. 335
15.16.4 Parole of Belligerent Personnel Interned in Neutral Territory. The neutral State
shall decide whether interned officers can be left at liberty on giving their parole not to leave theneutral territory without permission. 336
Neutral States may release enlisted personnel on parole, prescribe penalties for violationsof parole, and authorize personnel to depart neutral territory temporarily so long as these actions
remain consistent with its obligations as a neutral State. 337 The granting of leave to an interned
officer to return to his or her own country, however, would be considered an exceptional
measure, and a neutral State inclined to grant such permission would be prudent in the first
instance to obtain the consent of the opposing belligerent State.
A neutral State may demand the return of persons who have been released on parole but
have left the neutral State in violation of their parole. 338 If such persons return to the State in334

For example, A. PEARCE HIGGINS, THE HAGUE PEACE CONFERENCES AND OTHER INTERNATIONAL CONFERENCES
CONCERNING THE LAWS AND USAGES OF WAR: TEXTS OF CONVENTIONS WITH COMMENTARIES 293 footnote 2(1909) (“The most striking example of internment occurred in 1871 during the Franco-Prussian war when over
80,000 French troops under General Clinchant entered Swiss territory and were interned for the remainder of thewar; France at the conclusion of the war paid to Switzerland some 11 million francs for their maintenance.”).
335

See GPW art. 4B (“The following shall likewise be treated as prisoners of war under the present Convention: …
(2) The persons belonging to one of the categories enumerated in the present Article, who have been received byneutral or non-belligerent Powers on their territory and whom these Powers are required to intern under internationallaw, without prejudice to any more favourable treatment which these Powers may choose to give and with the
exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between theParties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting
Power.”) (emphasis added).
336

HAGUE V art. 11 (“It shall decide whether officers can be left at liberty on giving their parole not to leave theneutral territory without permission.”).

337

Cf. JAMES BROWN SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: I THE CONFERENCE OF 1907
147-48 (1920) (“Article 57, paragraph 3, of the [1899 Hague] Regulations leaves it to the neutral State to decide
whether interned officers may be left at liberty on giving their parole not to leave the neutral territory without
permission. It does not say upon what conditions a permission to leave this territory should be predicated; neither
does it provide any penalty for violation of the parole. Finally, it does not mention either non-commissioned
officers or private soldiers. The Japanese delegation proposed to fill this gap by deciding: (1) that the interned men,
without distinction of rank, cannot be liberated nor permitted to reenter their country except with the consent of theadverse party under conditions fixed by it; (2) that the parole given in such cases to the neutral State would beequivalent to a parole given to the adverse party. Without ignoring the merits of this proposal, the Commission
preferred to continue the existing text of the Regulations. It considered that permission given to an interned man toreturn temporarily to his country is something too exceptional to require regulation in express terms. There was no
difficulty, moreover, in recognizing that the Japanese proposal conforms to recent precedents and contains a usefulhint for a neutral State desirous of remaining entirely free from responsibility.”).
338

For example, Robert Lansing, The Secretary of State to the German Ambassador, Nov. 16, 1915, reprinted in
JAMES BROWN SCOTT, DIPLOMATIC CORRESPONDENCE BETWEEN THE UNITED STATES AND GERMANY AUGUST 1,
1914 - APRIL 6, 1917, 163 (1918) (“It will be recalled that during the Russo-Japanese War, when the Russian Ship1004

whose armed forces they serve, that State is obliged to return them to the neutral State at its
request. 339
15.16.5 Military Equipment and Supplies of Belligerent Forces Taking Refuge. The
munitions, arms, vehicles, equipment, and other supplies that the interned forces are allowed tobring with them into a neutral State are likewise detained by the neutral State. A belligerent
State’s military equipment and supplies, whether its own or captured, which are brought on toneutral territory must be returned at the end of the armed conflict to the State to which the items
belong. Similarly, captured war material found in the possession of the belligerent forces thattake refuge on neutral territory is the property of their State, regardless of its origin. 340
15.16.6 Retention of Medical Personnel and Chaplains in a Neutral State. Medical andreligious personnel serving with belligerent forces that are interned in neutral territory may beretained only in so far as the health and the numbers of such forces so require. 341 Subject tothese requirements, they must be returned as soon as possible to the State to which they
belong. 342 Chaplains are in the same position, their retention being dependent upon the spiritualneeds of the interned forces. 343 Medical personnel and chaplains who are retained must be
accorded similar treatment to those retained under the GPW. 344
15.17 POWS OR INTERNEES BROUGHT TO, OR RECEIVED BY, A NEUTRAL STATE
15.17.1 Escaped POWs Received by a Neutral State. POWs who have escaped to neutral
Lena was interned by the United States Authorities on the Pacific coast, three officers of that ship escaped andreturned to Russia; and that upon the Government of the United States calling the matter to the attention of theRussian Government it immediately caused the escaped officers to return to American jurisdiction where they wereinterned for the remainder of the war. This precedent this Government regards as in accord with the best practice ofnations and applicable to the cases which I have had the honor to present in this note.”).
339

1956 FM 27-10 (Change No. 1 1976) ¶535 (“Officers and men interned in a neutral State may in the discretion ofthat State be released on their parole under conditions to be prescribed by the neutral State. If such persons leave theneutral State in violation of their parole, the State in whose armed forces they serve is obliged to return them to theneutral State at its request.”).
340

See JAMES BROWN SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: I THE CONFERENCE OF 1907
145 (1920) (“What becomes of the war material captured by troops and brought with them into the territory of aneutral State? This question was put by the Dutch delegation, which made the following motion: ‘War material
captured from the enemy by an armed force and brought with it while taking refuge on neutral territory shall be
restored by the Government thereof to the State from which it was taken after the conclusion of peace.’ But theNetherland delegation did not insist on its motion in the face of the objection made to it. On the one hand, the caseof war material captured from the enemy cannot be assimilated to the case of prisoners of war. The capture ofmatériel creates for the captor an immediate right of ownership, which places this matériel on the same footing as
the captor’s own matériel. On the other hand, even if the captor’s right to the property should become uncertain,
owing to his taking refuge in the neutral territory, there would be no reason for making the neutral State the judge ofthe question and for imposing on it the invidious duty of examining the matériel brought into its territory by abelligerent force to see what has been taken from the enemy and what belongs to the force under some other title.”).
341

Refer to § 7.9.1.2 (Medical and Religious Personnel Who May Be Retained).

342

Refer to § 7.9.4 (Return of Personnel Whose Retention Is Not Indispensable).

343

Refer to § 4.9.1.3 (Chaplains Attached to the Armed Forces).

344

Refer to § 7.9.5 (Rights and Privileges of Retained Personnel).

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territory are deemed to have successfully escaped from the Detaining Power. 345
A neutral State may deny the admission of escaped POWs or receive them. A neutral
State that receives escaped POWs shall leave them at liberty. If it allows them to remain in its
territory, it may assign them a place of residence. 346
15.17.2 POWs Brought Into a Neutral State by Belligerent Forces Taking Refuge. POWs
brought into a neutral State by belligerent forces that take refuge in the neutral State are treatedlike POWs who have escaped to neutral territory. 347 This means that the POWs regain theirliberty from the belligerent forces that previously held them captive, and that if the neutral State
allows them to remain on its territory, it may assign them a place of residence.
POWs brought into a neutral State by belligerent forces taking refuge are released fromtheir captivity by the belligerent forces that previously held them because of a concern that thedetention operations by the belligerent forces would constitute a form of continuation of
hostilities on neutral territory and because the POWs probably would have been freed had thebelligerent forces not taken refuge in neutral territory. 348
15.17.3 POWs Brought to a Neutral State by Special Agreement Among the Neutral Stateand the Parties to a Conflict. POWs may be brought to a neutral State for internment by a special
agreement among the neutral State and the parties to the conflict. 349 Wounded and sick POWs
may also be brought to neutral countries for accommodation by a special agreement among theneutral State and the parties to the conflict. 350
Such special agreements must not adversely affect the situation of POWs, nor restrict the345

Refer to § 9.25.1.1 (Types of Successful Escapes).

346

HAGUE V art. 13 (“A neutral Power which receives escaped prisoners of war shall leave them at liberty. If it
allows them to remain in its territory it may assign them a place of residence.”).
347

HAGUE V art. 13 (“A neutral Power which receives escaped prisoners of war shall leave them at liberty. If it
allows them to remain in its territory it may assign them a place of residence. The same rule applies to prisoners of
war brought by troops taking refuge in the territory of a neutral Power.”).

348

See JAMES BROWN SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: I THE CONFERENCE OF 1907
144 (1920) (“Ought prisoners of war brought into the territory of a neutral State by belligerent troops who takerefuge there, to become free, or should they be interned like the troops? Upon the motion of the Netherland
delegation the Commission declared for the first solution. The only obstacle to the freedom of the prisoners here
referred to lies in the actual power that the belligerent forces which captured them are exercising over them, and thisactual power vanishes the moment the captor takes refuge in the territory of a neutral State. Moreover, troops taking
this extreme step, do so in order to escape from an enemy who is pressing them, and from a capitulation whose
effect would of course be to free the prisoners in their power.”); Caleb Cushing, Attorney General, Belligerent
Asylum, Apr. 28, 1855, 7 OPINIONS OF THE ATTORNEY GENERAL 122, 131 (1856) (“From all these premises, theconsequences are inevitable in regard to the prisoners on board the Sitka. So long as they remained on board thatship, they were in the territory and jurisdiction of her sovereign. There, the neutral has no right to meddle withthem. If, indeed, they be landed, then they pass from the jurisdiction of the belligerent to that of the neutral; they
become practically free, because their detention is forcible, and force cannot be exercised on the neutral territory;”).
349

Refer to § 9.36.3 (Agreements to Intern POWs in Neutral Territory).

350

Refer to § 9.36.2 (Accommodation in Neutral Countries).

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rights that the GPW confers upon them. 351
15.17.4 Certain Classes of Protected Persons Brought to a Neutral State by Special
Agreement Among the Neutral State and the Parties to a Conflict. Certain classes of civilianinternees may be brought to a neutral State for internment by a special agreement among theneutral State and the parties to the conflict. 352 Agreements may also be concluded for children
under the age of fifteen who are orphaned or separated from their families to stay in neutral
countries. 353
Such special agreements must not adversely affect the situation of protected persons nor
restrict the rights that the GC confers upon them. 354
15.18 AUTHORIZED PASSAGE OF WOUNDED AND SICK COMBATANTS THROUGH NEUTRALTERRITORY
Ground transports of wounded and sick combatants may pass through a neutral State’s
land territory with the permission of the neutral State. Subject to rules established by the neutral
State, medical aircraft of belligerent States may fly over the territory of neutral States, land on it
in case of necessity, or use it as a port of call.
15.18.1 Authorized Ground Transports of Wounded and Sick Combatants ThroughNeutral Territory. A neutral State may authorize the passage into its territory of wounded or sickpersons belonging to belligerent forces, on condition that such transports shall carry neither
personnel nor material of war. 355 In such a case, the neutral Power is bound to take whatevermeasures of safety and control are necessary for the purpose. 356
However, if any such persons are committed to the care of the neutral State or remain in
the neutral State’s territory, they must be guarded so as to ensure they do not take part again in
the war. 357
15.18.1.1 Discretion of the Neutral State to Authorize Such Passage. The neutral
State has the right, but not the obligation, to permit such passage; if provided, such passage

351

Refer to § 9.1.2.2 (Special Agreements Under the GPW).

352

Refer to § 10.9.6 (Agreements for the Release, Return, or Accommodation in a Neutral Country of Certain
Classes of Internees).
353

Refer to § 4.20.1.1 (Children Under Fifteen Who Are Orphaned or Separated).

354

Refer to § 10.1.1.2 (Special Agreements Under the GC).

355

HAGUE V art. 14 (“A neutral Power may authorize the passage into its territory of wounded or sick belonging to
the belligerent armies, on condition that the trains bringing them shall carry neither personnel or material of war.”).

356

HAGUE V art. 14 (“In such a case, the neutral Power is bound to take whatever measures of safety and control arenecessary for the purpose.”).

357

Refer to § 15.16.1.2 (Neutral Duty to Disarm and Intern the Belligerent Forces).

1007

should be provided on an impartial basis to all belligerent States. 358
It is not necessary to obtain the consent of the other belligerent States before permitting
the passage of sick and wounded personnel, but it would be advisable to do so if considerable
numbers are involved. 359
15.18.1.2 Personnel or Material of War Accompanying the Wounded or Sick. A
neutral State permitting the passage of sick and wounded into and through its territory must takemeasures of safety and control to ensure that combatants or military supplies do not accompany
them. If combatants accompany the passage of the wounded and sick, they should beinterned. 360 Similarly, any military supplies must be seized and placed in safe custody until theend of the conflict. 361
Medical personnel and materials necessary for the care of the wounded and sick of a
convoy of evacuation may be permitted to accompany the convoy. 362
15.18.1.3 Wounded and Sick POWs Brought Into Neutral Territory Under
Authorized Ground Transports. Wounded and sick POWs brought by one of the belligerents aspart of a convoy of evacuation that is granted passage through neutral territory, and belonging to
the hostile party, must be guarded by the neutral State so as to ensure they do not take part again
in the operations of the war. 363
Thus, wounded and sick and POWs brought into neutral territory by the Detaining Power
as part of a convoy of evacuation granted right of passage through neutral territory are not treatedlike escaping POWs or POWs brought by belligerent forces seeking asylum in neutral territory358

1956 FM 27-10 (Change No. 1 1976) ¶541 (“The neutral power is under no obligation to permit the passage of a
convoy of sick and wounded through its territory, but when such a convoy is permitted to pass, the neutral must
exercise control, must see that neither personnel nor material other than that necessary for the care of the sick andwounded is carried, and generally must accord impartiality of treatment to the belligerents.”); 2004 UK MANUAL¶8.162 (“It is under no obligation to do so but if the privilege is accorded, it must be given to all belligerent states
impartially.”).
359

For example, 2004 UK MANUAL ¶8.162.1 footnote 427 (“After the battle of Sedan in the Franco-German war of
1870–71, the German General Staff wished to send railway trains conveying wounded to Germany through Belgium
and Luxembourg. The French Minister of War protested. He argued, rightly, that this would free lines to bringforward fresh soldiers and ammunition. Belgium, after consulting the British government, decided that, if one of thebelligerents objected, the giving of permission would be a breach of neutrality, and therefore refused it.
Luxembourg took the opposite view and granted it. Under international law, Luxembourg was correct in its
reasoning but, in view of the cogent arguments put forward by France, Belgium was right in its decision.”).
360

Refer to § 15.16.1.2 (Neutral Duty to Disarm and Intern the Belligerent Forces).

361

Refer to § 15.16.5 (Military Equipment and Supplies of Belligerent Forces Taking Refuge).

362

1956 FM 27-10 (Change No. 1 1976) ¶545 (“Medical personnel and materials necessary for the care of the sickand wounded of a convoy of evacuation, permitted to pass through neutral territory under Article 14, H. V (par.
539), may be permitted to accompany the convoy.”).
363

HAGUE V art. 14 (“The wounded and sick brought under these conditions into neutral territory by one of thebelligerents, and belonging to the hostile party, must be guarded by the neutral Power so as to ensure their not taking
part again in the operations of the war.”).

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(i.e., transported to their own country or liberated). 364 Instead, they are treated like otherwounded, sick, and shipwrecked combatants who are received within neutral territory, and theymust be guarded by the neutral State. 365
15.18.1.4 Wounded and Sick Combatants Committed to the Care of the Neutral
State. Wounded and sick combatants brought under these conditions into neutral territory by oneof the belligerents, and who do not simply pass through neutral territory but are committed to thecare of the neutral State, must be guarded by the neutral State so as to ensure they do not takepart again in the operations of the war. 366
15.18.2 Medical Aircraft and Neutral Territory. Subject to conditions and restrictions
established by the neutral State, medical aircraft of belligerent States may fly over the territory ofneutral States, land on it in case of necessity, or use it as a port of call. 367 Belligerent States shallgive the neutral States previous notice of their passage over the neutral State and obey all
summons to alight, on land or water. 368
The neutral State may place conditions or restrictions on the passage or landing of
medical aircraft on its territory. 369 Such conditions or restrictions shall be applied equally to all
belligerent States. 370 Belligerent States’ medical aircraft would be immune from attack only
when flying on routes, at heights, and at times specifically agreed upon between the belligerent
States and the neutral State concerned. 371
As a general matter, the wounded and sick who are disembarked, with the consent of thelocal authorities, on neutral territory by medical aircraft, shall be detained by the neutral State,
where so required by international law, in such a manner that they cannot again take part in364

1956 FM 27-10 (Change No. 1 1976) ¶543 (“Sick and wounded prisoners of war brought into neutral territory by
the Detaining Power as part of a convoy of evacuation granted right of passage through neutral territory may not betransported to their own country or liberated, as are prisoners of war escaping into, or brought by troops seeking
asylum in neutral territory, but must be detained by the neutral power, subject to the provisions contained inparagraphs 188 through 196.”).
365

Refer to § 15.16.2 (Neutral Reception of the Wounded, Sick, and Shipwrecked).

366
HAGUE V art. 14 (“The wounded and sick brought under these conditions into neutral territory by one of thebelligerents, and belonging to the hostile party, must be guarded by the neutral Power so as to ensure their not taking
part again in the operations of the war. The same duty shall devolve on the neutral State with regard to wounded orsick of the other army who may be committed to its care.”).
367

GWS art. 37 (“Subject to the provisions of the second paragraph, medical aircraft of Parties to the conflict may
fly over the territory of neutral Powers, land on it in case of necessity, or use it as a port of call.”); GWS-SEA art. 40(same).
368

GWS art. 37 (“They shall give the neutral Powers previous notice of their passage over the said territory andobey all summons to alight, on land or water.”); GWS-SEA art. 40 (same).
369

GWS art. 37 (“The neutral Powers may, however, place conditions or restrictions on the passage or landing of
medical aircraft on their territory.”); GWS-SEA art. 40 (same).
370

GWS art. 37 (“Such possible conditions or restrictions shall be applied equally to all Parties to the conflict.”);GWS-SEA art. 40 (same).
371

GWS art. 37 (“They will be immune from attack only when flying on routes, at heights and at times specificallyagreed upon between the Parties to the conflict and the neutral Power concerned.”); GWS-SEA art. 40 (same).

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military operations. 372

372

Refer to § 15.16.2.3 (Wounded and Sick Disembarked From Belligerent Medical Aircraft).

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XVI – Cyber Operations
Chapter Contents
16.1 Introduction
16.2 Application of the Law of War to Cyber Operations
16.3 Cyber Operations and Jus ad Bellum
16.4 Cyber Operations and the Law of Neutrality
16.5 Cyber Operations and Jus in Bello
16.6 Legal Review of Weapons That Employ Cyber Capabilities
16.1 INTRODUCTION
This Chapter addresses the law of war and cyber operations. It addresses how law of war
principles and rules apply to relatively novel cyber capabilities and the cyber domain.
As a matter of U.S. policy, the United States has sought to work internationally to clarify
how existing international law and norms, including law of war principles, apply to cyber
operations. 1
Precisely how the law of war applies to cyber operations is not well-settled, and aspectsof the law in this area are likely to continue to develop, especially as new cyber capabilities aredeveloped and States determine their views in response to such developments. 2

1

See, e.g., United States Submission to the U.N. Group of Governmental Experts on Developments in the Field ofInformation and Telecommunications in the Context of International Security (2014–15), 1 (“But the challenge is
not whether existing international law applies to State behavior in cyberspace. As the 2012–13 GGE affirmed,
international law does apply, and such law is essential to regulating State conduct in this domain. The challenge isproviding decision-makers with considerations that may be taken into account when determining how existing
international law applies to cyber activities. Despite this challenge, history has shown that States, throughconsultation and cooperation, have repeatedly and successfully applied existing bodies of law to new technologies.
It continues to be the U.S. view that all States will benefit from a stable international ICT [information andcommunication technologies] environment in which existing international law is the foundation for responsible State
behavior in cyberspace.”); Barack Obama, International Strategy for Cyberspace: Prosperity, Security, andOpenness in a Networked World, 9 (May 2011) (“The development of norms for state conduct in cyberspace does
not require a reinvention of customary international law, nor does it render existing international norms obsolete.
Long-standing international norms guiding state behavior—in times of peace and conflict—also apply incyberspace. Nonetheless, unique attributes of networked technology require additional work to clarify how thesenorms apply and what additional understandings might be necessary to supplement them. We will continue to work
internationally to forge consensus regarding how norms of behavior apply to cyberspace, with the understanding thatan important first step in such efforts is applying the broad expectations of peaceful and just interstate conduct tocyberspace.”); DEPARTMENT OF DEFENSE, Department of Defense Cyberspace Policy Report: A Report to Congress
Pursuant to the National Defense Authorization Act for Fiscal Year 2011, Section 934, 7-8 (Nov. 2011) (“TheUnited States is actively engaged in the continuing development of norms of responsible state behavior incyberspace, making clear that as a matter of U.S. policy, long-standing international norms guiding state behavior
also apply equally in cyberspace. Among these, applying the tenets of the law of armed conflict are critical to thisvision, although cyberspace’s unique aspects may require clarifications in certain areas.”).
2

Department of Defense, Office of the General Counsel, An Assessment of International Legal Issues in Information
Operations (2nd ed., Nov. 1999), reprinted in 76 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 459,

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16.1.1 Cyberspace as a Domain. As a doctrinal matter, DoD has recognized cyberspaceas an operational domain in which the armed forces must be able to defend and operate, just likethe land, sea, air, and space domains. 3
Cyberspace may be defined as “[a] global domain within the information environment
consisting of interdependent networks of information technology infrastructures and resident
data, including the Internet, telecommunications networks, computer systems, and embedded
processors and controllers.” 4
16.1.2 Description of Cyber Operations. Cyberspace operations may be understood to be
those operations that involve “[t]he employment of cyberspace capabilities where the primary
purpose is to achieve objectives in or through cyberspace.” 5 Cyber operations: (1) use cybercapabilities, such as computers, software tools, or networks; and (2) have a primary purpose ofachieving objectives or effects in or through cyberspace.
16.1.2.1 Examples of Cyber Operations. Cyber operations include those
operations that use computers to disrupt, deny, degrade, or destroy information resident incomputers and computer networks, or the computers and networks themselves. Cyber operations
can be a form of advance force operations, which precede the main effort in an objective area inorder to prepare the objective for the main assault. For example, cyber operations may include
reconnaissance (e.g., mapping a network), seizure of supporting positions (e.g., securing accessto key network systems or nodes), and pre-emplacement of capabilities or weapons (e.g.,
implanting cyber access tools or malicious code). In addition, cyber operations may be a methodof acquiring foreign intelligence unrelated to specific military objectives, such as understanding
464-65 (2002) (“The international community ordinarily does not negotiate treaties to deal with problems until theirconsequences have begun to be felt. This is not all bad, since the solution can be tailored to the actual problems thathave occurred, rather than to a range of hypothetical possibilities. One consequence, however, is that the resulting
law, whether domestic or international, may be sharply influenced by the nature of the events that precipitate legal
developments, together with all their attendant policy and political considerations. … Similarly, we can make someeducated guesses as to how the international legal system will respond to information operations, but the directionthat response actually ends up taking may depend a great deal on the nature of the events that draw the nations’attention to the issue. If information operations techniques are seen as just another new technology that does not
greatly threaten the nations’ interests, no dramatic legal developments may occur. If they are seen as a revolutionary
threat to the security of nations and the welfare of their citizens, it will be much more likely that efforts will be madeto restrict or prohibit information operations by legal means. These are considerations that national leaders should
understand in making decisions on using information operations techniques in the current formative period, but itshould also be understood that the course of future events is often beyond the control of statesmen.”).
3

William J. Lynn III, Deputy Secretary of Defense, Defending a New Domain: The Pentagon’s Cyberstrategy, 89
FOREIGN AFFAIRS 97, 101 (Sept./Oct. 2010) (“As a doctrinal matter, the Pentagon has formally recognizedcyberspace as a new domain of warfare. Although cyberspace is a man-made domain, it has become just as criticalto military operations as land, sea, air, and space. As such, the military must be able to defend and operate withinit.”).
4

JOINT PUBLICATION 3-12, Cyberspace Operations, GL-4 (Feb. 5, 2013) (“(U) Cyberspace. A global domain within
the information environment consisting of interdependent networks of information technology infrastructures andresident data, including the Internet, telecommunications networks, computer systems, and embedded processors
and controllers.”).
5

JOINT PUBLICATION 3-0, Joint Operations (Aug. 11, 2011) (“cyberspace operations. The employment ofcyberspace capabilities where the primary purpose is to achieve objectives in or through cyberspace.”).

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technological developments or gaining information about an adversary’s military capabilities andintent.
16.1.2.2 Examples of Operations That Would Not Be Regarded as Cyber
Operations. Cyber operations generally would not include activities that merely use computersor cyberspace without a primary purpose of achieving objectives or effects in or throughcyberspace. For example, operations that use computer networks to facilitate command andcontrol, operations that use air traffic control systems, and operations to distribute information
broadly using computers would generally not be considered cyber operations.
Operations that target an adversary’s cyberspace capabilities, but that are not achieved inor through cyberspace, would not be considered cyber operations. For example, thebombardment of a network hub, or the jamming of wireless communications, would not be
considered cyber operations, even though they may achieve military objectives in cyberspace.
16.1.3 Cyber Operations – Notes on Terminology. DoD doctrine and terminology forcyber operations continue to develop.
16.1.3.1 “Cyber” Versus “Cyberspace” as an Adjective. The terms “cyber” and“cyberspace” when used as an adjective (e.g., cyber attack, cyber defense, cyber operation) are
generally used interchangeably.
16.1.3.2 Cyber Attacks or Computer Network Attacks. The term “attack” often
has been used in a colloquial sense in discussing cyber operations to refer to many different types
of hostile or malicious cyber activities, such as the defacement of websites, network intrusions,the theft of private information, or the disruption of the provision of internet services.
Operations described as “cyber attacks” or “computer network attacks,” therefore, are notnecessarily “attacks” for the purposes of applying rules on conducting attacks during the conductof hostilities. 6 Similarly, operations described as “cyber attacks” or “computer network attacks”
are not necessarily “armed attacks” for the purposes of triggering a State’s inherent right of selfdefense under jus ad bellum. 7
16.2 APPLICATION OF THE LAW OF WAR TO CYBER OPERATIONSSpecific law of war rules may apply to cyber operations, even though those rules weredeveloped before cyber operations were possible. When no more specific law of war rule orother applicable rule applies, law of war principles provide a general guide for conduct during
cyber operations in armed conflict.
16.2.1 Application of Specific Law of War Rules to Cyber Operations. Specific law of
war rules may be applicable to cyber operations, even though these rules were developed long
before cyber operations were possible.
6

Refer to § 16.5.1 (Cyber Operations That Constitute “Attacks” for the Purpose of Applying Rules on Conducting
Attacks).
7

Refer to § 16.3.3 (Responding to Hostile or Malicious Cyber Operations).

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The law of war affirmatively anticipates technological innovation and contemplates thatits existing rules will apply to such innovation, including cyber operations. 8 Law of war rules
may apply to new technologies because the rules often are not framed in terms of specifictechnological means. For example, the rules on conducting attacks do not depend on what typeof weapon is used to conduct the attack. Thus, cyber operations may be subject to a variety oflaw of war rules depending on the rule and the nature of the cyber operation. For example, if thephysical consequences of a cyber attack constitute the kind of physical damage that would becaused by dropping a bomb or firing a missile, that cyber attack would equally be subject to thesame rules that apply to attacks using bombs or missiles. 9
Cyber operations may pose challenging legal questions because of the variety of effects
they can produce. For example, cyber operations could be a non-forcible means or method of
conducting hostilities (such as information gathering), and would be regulated as such underrules applicable to non-forcible means and methods of warfare. 10 Other cyber operations could
be used to create effects that amount to an attack and would be regulated under the rules on
conducting attacks. 11 Moreover, another set of challenging issues may arise when considering
whether a particular cyber operation might be regarded as a seizure or destruction of enemy
property and should be assessed as such. 12
16.2.2 Application of Law of War Principles as a General Guide to Cyber Operations.
When no specific rule applies, the principles of the law of war form the general guide for
conduct during war, including conduct during cyber operations. 13 For example, under the
principle of humanity, suffering, injury, or destruction unnecessary to accomplish a legitimate
military purpose must be avoided in cyber operations. 14
8Harold Hongju Koh, Legal Adviser, Department of State, International Law in Cyberspace: Remarks as Preparedfor Delivery to the USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012), reprinted in 54 HARVARD
INTERNATIONAL LAW JOURNAL ONLINE, 3 (Dec. 2012) (“Cyberspace is not a ‘law-free’ zone where anyone canconduct hostile activities without rules or restraint. Think of it this way. This is not the first time thattechnology has changed and that international law has been asked to deal with those changes. In particular, because
the tools of conflict are constantly evolving, one relevant body of law—international humanitarian law, or the law ofarmed conflict—affirmatively anticipates technological innovation, and contemplates that its existing rules will
apply to such innovation.”).
9Harold Hongju Koh, Legal Adviser, Department of State, International Law in Cyberspace: Remarks as Preparedfor Delivery to the USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012), reprinted in 54 HARVARD
INTERNATIONAL LAW JOURNAL ONLINE, 3-4 (Dec. 2012) (“In analyzing whether a cyber operation would constitutea use of force, most commentators focus on whether the direct physical injury and property damage resulting fromthe cyber event looks like that which would be considered a use of force if produced by kinetic weapons. For
example, cyber activities that proximately result in death, injury, or significant destruction would likely be viewed asa use of force. … Only a moment’s reflection makes you realize that this is common sense: if the physicalconsequences of a cyber attack work the kind of physical damage that dropping a bomb or firing a missile would,
that cyber attack should equally be considered a use of force.”).
10

Refer to § 5.26 (Non-Forcible Means and Methods of Warfare).

11

Refer to § 5.4 (Rules on Conducting Assaults, Bombardments, and Other Attacks).

12

Refer to § 5.17 (Seizure and Destruction of Enemy Property).

13

Refer to § 2.1.2.2 (Law of War Principles as a General Guide).

14

Refer to § 2.3 (Humanity).

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Certain cyber operations may not have a clear kinetic parallel in terms of theircapabilities and the effects they create. 15 Such operations may have implications that are quite
different from those presented by attacks using traditional weapons, and those different
implications may well yield different conclusions. 16
16.3 CYBER OPERATIONS AND JUS AD BELLUM
Cyber operations may present issues under the law of war governing the resort to force(i.e., jus ad bellum). 17
16.3.1 Prohibition on Cyber Operations That Constitute Illegal Uses of Force Under
Article 2(4) of the Charter of the United Nations. Article 2(4) of the Charter of the United
Nations states that “[a]ll Members shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of any state, or in any othermanner inconsistent with the Purposes of the United Nations.” 18
Cyber operations may in certain circumstances constitute uses of force within themeaning of Article 2(4) of the Charter of the United Nations and customary international law. 19
For example, if cyber operations cause effects that, if caused by traditional physical means,would be regarded as a use of force under jus ad bellum, then such cyber operations would likely
also be regarded as a use of force. Such operations may include cyber operations that: (1)trigger a nuclear plant meltdown; (2) open a dam above a populated area, causing destruction; or(3) disable air traffic control services, resulting in airplane crashes. 20 Similarly, cyber operations

15

Harold Hongju Koh, Legal Adviser, Department of State, International Law in Cyberspace: Remarks as
Prepared for Delivery to the USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012), reprinted in 54
HARVARD INTERNATIONAL LAW JOURNAL ONLINE, 7 (Dec. 2012) (“I have also noted some clear-cut cases where thephysical effects of a hostile cyber action would be comparable to what a kinetic action could achieve: for example,
a bomb might break a dam and flood a civilian population, but insertion of a line of malicious code from a distantcomputer might just as easily achieve that same result. As you all know, however, there are other types of cyber
actions that do not have a clear kinetic parallel, which raise profound questions about exactly what we mean by‘force.’”).
16
Department of Defense, Office of the General Counsel, An Assessment of International Legal Issues inInformation Operations (2nd ed., Nov. 1999), reprinted in 76 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAWSTUDIES 459, 490 (2002) (“In the process of reasoning by analogy to the law applicable to traditional weapons, it
must always be kept in mind that computer network attacks are likely to present implications that are quite different
from the implications presented by attacks with traditional weapons. These different implications may well yield
different conclusions.”).
17

Refer to § 1.11 (Jus ad Bellum).

18

U.N. CHARTER art. 2(4).

19Harold Hongju Koh, Legal Adviser, Department of State, International Law in Cyberspace: Remarks as
Prepared for Delivery to the USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012), reprinted in 54
HARVARD INTERNATIONAL LAW JOURNAL ONLINE, 3 (Dec. 2012) (“Cyber activities may in certain circumstances
constitute uses of force within the meaning of Article 2(4) of the UN Charter and customary international law.”).
20

Harold Hongju Koh, Legal Adviser, Department of State, International Law in Cyberspace: Remarks as
Prepared for Delivery to the USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012), reprinted in 54
HARVARD INTERNATIONAL LAW JOURNAL ONLINE, 4 (Dec. 2012) (“Commonly cited examples of cyber activity that

1015

that cripple a military’s logistics systems, and thus its ability to conduct and sustain military
operations, might also be considered a use of force under jus ad bellum. 21 Other factors, besides
the effects of the cyber operation, may also be relevant to whether the cyber operation constitutes
a use of force under jus ad bellum. 22
Cyber operations that constitute uses of force within the meaning of Article 2(4) of theCharter of the United Nations and customary international law must have a proper legal basis inorder not to violate jus ad bellum prohibitions on the resort to force. 23
16.3.2 Peacetime Intelligence and Counterintelligence Activities. International law andlong-standing international norms are applicable to State behavior in cyberspace, 24 and thequestion of the legality of peacetime intelligence and counterintelligence activities must be
considered on a case-by-case basis. Generally, to the extent that cyber operations resemble
traditional intelligence and counter-intelligence activities, such as unauthorized intrusions into
computer networks solely to acquire information, then such cyber operations would likely betreated similarly under international law. 25 The United States conducts such activities via
cyberspace, and such operations are governed by long-standing and well-establishedconsiderations, including the possibility that those operations could be interpreted as a hostileact. 26
16.3.3 Responding to Hostile or Malicious Cyber Operations. A State’s inherent right ofself-defense, recognized in Article 51 of the Charter of the United Nations, may be triggered bywould constitute a use of force include, for example, (1) operations that trigger a nuclear plant meltdown, (2)operations that open a dam above a populated area causing destruction, or (3) operations that disable air traffic
control resulting in airplane crashes.”).
21

Department of Defense, Office of the General Counsel, An Assessment of International Legal Issues inInformation Operations (2nd ed., Nov. 1999), reprinted in 76 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAWSTUDIES 459, 483 (2002) (“Even if the systems attacked were unclassified military logistics systems, an attack onsuch systems might seriously threaten a nation’s security. For example, corrupting the data in a nation’s
computerized systems for managing its military fuel, spare parts, transportation, troop mobilization, or medical
supplies may seriously interfere with its ability to conduct military operations. In short, the consequences are likely
to be more important than the means used.”).
22Harold Hongju Koh, Legal Adviser, Department of State, International Law in Cyberspace: Remarks as
Prepared for Delivery to the USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012), reprinted in 54
HARVARD INTERNATIONAL LAW JOURNAL ONLINE, 4 (Dec. 2012) (“In assessing whether an event constituted a useof force in or through cyberspace, we must evaluate factors including the context of the event, the actor perpetrating
the action (recognizing challenging issues of attribution in cyberspace), the target and location, effects and intent,
among other possible issues.”).
23

Refer to § 1.11.3 (Prohibition on Certain Uses of Force).

24

Refer to § 16.1 (Introduction).

25

Department of Defense, Office of the General Counsel, An Assessment of International Legal Issues inInformation Operations (2nd ed., Nov. 1999), reprinted in 76 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAWSTUDIES 459, 518 (2002).
26

DEPARTMENT OF DEFENSE, Department of Defense Cyberspace Policy Report: A Report to Congress Pursuant to
the National Defense Authorization Act for Fiscal Year 2011, Section 934, 6-7 (Nov. 2011).

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cyber operations that amount to an armed attack or imminent threat thereof. 27 As a matter ofnational policy, the United States has expressed the view that when warranted, it will respond tohostile acts in cyberspace as it would to any other threat to the country. 28
Measures taken in the exercise of the right of national self-defense in response to anarmed attack must be reported immediately to the U.N. Security Council in accordance with
Article 51 of the Charter of the United Nations. 29
16.3.3.1 Use of Force Versus Armed Attack. The United States has long taken theposition that the inherent right of self-defense potentially applies against any illegal use offorce. 30 Thus, any cyber operation that constitutes an illegal use of force against a Statepotentially gives rise to a right to take necessary and proportionate action in self-defense. 31
16.3.3.2 No Legal Requirement for a Cyber Response to a Cyber Attack. There is
no legal requirement that the response in self-defense to a cyber armed attack take the form of acyber action, as long as the response meets the requirements of necessity and proportionality. 32
27

Harold Hongju Koh, Legal Adviser, Department of State, International Law in Cyberspace: Remarks as
Prepared for Delivery to the USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012), reprinted in 54
HARVARD INTERNATIONAL LAW JOURNAL ONLINE, 4 (Dec. 2012) (“Question 4: May a state ever respond to acomputer network attack by exercising a right of national self-defense? Answer 4: Yes. A state’s national rightof self-defense, recognized in Article 51 of the UN Charter, may be triggered by computer network activities
that amount to an armed attack or imminent threat thereof.”); Barack Obama, International Strategy for
Cyberspace: Prosperity, Security, and Openness in a Networked World, 10 (May 2011) (“Right of Self-Defense:
Consistent with the United Nations Charter, states have an inherent right to self-defense that may be triggered bycertain aggressive acts in cyberspace.”).
28

Barack Obama, International Strategy for Cyberspace: Prosperity, Security, and Openness in a Networked
World, 14 (May 2011) (“When warranted, the United States will respond to hostile acts in cyberspace as we would
to any other threat to our country. All states possess an inherent right to self-defense, and we recognize that certain
hostile acts conducted through cyberspace could compel actions under the commitments we have with our military
treaty partners. We reserve the right to use all necessary means—diplomatic, informational, military, andeconomic—as appropriate and consistent with applicable international law, in order to defend our Nation, our allies,
our partners, and our interests. In so doing, we will exhaust all options before military force whenever we can; will
carefully weigh the costs and risks of action against the costs of inaction; and will act in a way that reflects ourvalues and strengthens our legitimacy, seeking broad international support whenever possible.”).
29

Refer to § 1.11.5.6 (Reporting to the U.N. Security Council).

30

Refer to § 1.11.5.2 (Use of Force Versus Armed Attack).

31

Harold Hongju Koh, Legal Adviser, Department of State, International Law in Cyberspace: Remarks as
Prepared for Delivery to the USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012), reprinted in 54
HARVARD INTERNATIONAL LAW JOURNAL ONLINE, 7 (Dec. 2012) (“To cite just one example of this, the UnitedStates has for a long time taken the position that the inherent right of self-defense potentially applies against any
illegal use of force. In our view, there is no threshold for a use of deadly force to qualify as an “armed attack” that
may warrant a forcible response. But that is not to say that any illegal use of force triggers the right to use any andall force in response—such responses must still be necessary and of course proportionate.”).
32

Harold Hongju Koh, Legal Adviser, Department of State, International Law in Cyberspace: Remarks as
Prepared for Delivery to the USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012), reprinted in 54
HARVARD INTERNATIONAL LAW JOURNAL ONLINE, 4 (Dec. 2012) (“There is no legal requirement that the response
to a cyber armed attack take the form of a cyber action, as long as the response meets the requirements of necessityand proportionality.”).

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16.3.3.3 Responses to Hostile or Malicious Cyber Acts That Do Not Constitute
Uses of Force. Although cyber operations that do not constitute uses of force under jus adbellum would not permit injured States to use force in self-defense, those injured States may bejustified in taking necessary and appropriate actions in response that do not constitute a use offorce. 33 Such actions might include, for example, a diplomatic protest, an economic embargo, or
other acts of retorsion. 34
16.3.3.4 Attribution and Self-Defense Against Cyber Operations. Attribution may
pose a difficult factual question in responding to hostile or malicious cyber operations because
adversaries may be able to hide or disguise their activities or identities in cyberspace more easily
than in the case of other types of operations. 35
A State’s right to take necessary and proportionate action in self-defense in response to
an armed attack originating through cyberspace applies whether the attack is attributed to anotherState or to a non-State actor. 36
16.3.3.5 Authorities Under U.S. Law to Respond to Hostile Cyber Acts. Decisions
about whether to invoke a State’s inherent right of self-defense would be made at the national
level because they involve the State’s rights and responsibilities under international law. For
example, in the United States, such decisions would generally be made by the President.
The Standing Rules of Engagement for U.S. forces have addressed the authority of the
U.S. armed forces to take action in self-defense in response to hostile acts or hostile intent,
33

Department of Defense, Office of the General Counsel, An Assessment of International Legal Issues inInformation Operations (2nd ed., Nov. 1999), reprinted in 76 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAWSTUDIES 459, 482 (2002) (“There is also a general recognition of the right of a nation whose rights underinternational law have been violated to take countermeasures against the offending state, in circumstances where
neither the provocation nor the response involves the use of armed force. For example, an arbitral tribunal in 1978
ruled that the United States was entitled to suspend French commercial air flights into Los Angeles after the French
had suspended U.S. commercial air flights into Paris. Discussions of the doctrine of countermeasures generally
distinguish between countermeasures that would otherwise be violations of treaty obligations or of generalprinciples of international law (in effect, reprisals not involving the use of armed force) and retorsions – actions that
may be unfriendly or even damaging, but which do not violate any international legal obligation. The use ofcountermeasures is subject to the same requirements of necessity and proportionality as apply to self-defense.”).
34

Refer to § 18.17 (Retorsion).

35

DEPARTMENT OF DEFENSE, Department of Defense Cyberspace Policy Report: A Report to Congress Pursuant to
the National Defense Authorization Act for Fiscal Year 2011, Section 934, 4 (Nov. 2011) (“The same technicalprotocols of the Internet that have facilitated the explosive growth of cyberspace also provide some measure ofanonymity. Our potential adversaries, both nations and non-state actors, clearly understand this dynamic and seek to
use the challenge of attribution to their strategic advantage. The Department recognizes that deterring malicious
actors from conducting cyber attacks is complicated by the difficulty of verifying the location from which an attack
was launched and by the need to identify the attacker among a wide variety and high number of potential actors.”).

36

United States Submission to the U.N. Group of Governmental Experts on Developments in the Field ofInformation and Telecommunications in the Context of International Security 2012-2013, 2 (“As the United States
noted in its 2010 submission to the GGE, the following established principles would apply in the context of anarmed attack, whether it originated through cyberspace or not: • The right of self-defense against an imminent or
actual armed attack applies whether the attacker is a State actor or a non-State actor.”). Refer to § 1.11.5.4 (Right of
Self-Defense Against Non-State Actors).

1018

including such acts perpetrated in or through cyberspace. 37
16.4 CYBER OPERATIONS AND THE LAW OF NEUTRALITY
The law of neutrality may be important in certain cyber operations. For example, under
the law of neutrality, belligerent States are bound to respect the sovereign rights of neutral
States. 38 Because of the interconnected nature of cyberspace, cyber operations targeting
networked information infrastructures in one State may create effects in another State that is nota party to the armed conflict. 39
16.4.1 Cyber Operations That Use Communications Infrastructure in Neutral States. The
law of neutrality has addressed the use of communications infrastructure in neutral States, and incertain circumstances, these rules would apply to cyber operations.
The use of communications infrastructure in neutral States may be implicated under thegeneral rule that neutral territory may not serve as a base of operations for one belligerent against
another. 40 In particular, belligerent States are prohibited from erecting on the territory of aneutral State any apparatus for the purpose of communicating with belligerent forces on land orsea, or from using any installation of this kind established by them before the armed conflict on
the territory of a neutral State for purely military purposes, and which has not been opened forthe service of public messages. 41
However, merely relaying information through neutral communications infrastructure(provided that the facilities are made available impartially) generally would not constitute a
violation of the law of neutrality that belligerent States would have an obligation to refrain fromand that a neutral State would have an obligation to prevent. 42 This rule was developed because
it was viewed as impractical for neutral States to censor or screen their publicly available
37

See, e.g., CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION 3121.01B, Standing Rules ofEngagement/Standing Rules for the Use of Force for U.S. Forces, ¶6b(1) (June 13, 2005), reprinted in
INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT, THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER &SCHOOL, U.S. ARMY, OPERATIONAL LAW HANDBOOK 95 (2007) (“Unit commanders always retain the inherent rightand obligation to exercise unit self-defense in response to a hostile act or demonstrated hostile intent. Unlessotherwise directed by a unit commander as detailed below, military members may exercise individual self-defense in
response to a hostile act or demonstrated hostile intent.”).
38

Refer to § 15.3.1 (Neutral Rights).

39

Harold Hongju Koh, Legal Adviser, Department of State, International Law in Cyberspace: Remarks as
Prepared for Delivery to the USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012), reprinted in 54
HARVARD INTERNATIONAL LAW JOURNAL ONLINE, 6 (Dec. 2012) (“States conducting activities in cyberspace musttake into account the sovereignty of other states, including outside the context of armed conflict. The physicalinfrastructure that supports the Internet and cyber activities is generally located in sovereign territory and subject tothe jurisdiction of the territorial state. Because of the interconnected, interoperable nature of cyberspace, operations
targeting networked information infrastructures in one country may create effects in another country. Whenever astate contemplates conducting activities in cyberspace, the sovereignty of other states needs to be considered.”).
40

Refer to § 15.5 (Prohibition on the Use of Neutral Territory as a Base of Operations).

41

Refer to § 15.5.3 (Prohibition Against Establishment or Use of Belligerent Communications Facilities in Neutral
Territory).

42

Refer to § 15.5.3.1 (Use of Neutral Facilities by Belligerents Not Prohibited).

1019

communications infrastructure for belligerent traffic. 43 Thus, for example, it would not be
prohibited for a belligerent State to route information through cyber infrastructure in a neutral
State that is open for the service of public messages, and that neutral State would have no
obligation to forbid such traffic. This rule would appear to be applicable even if the informationthat is being routed through neutral communications infrastructure may be characterized as acyber weapon or otherwise could cause destructive effects in a belligerent State (but nodestructive effects within the neutral State or States). 44
16.5 CYBER OPERATIONS AND JUS IN BELLOThis section addresses jus in bello rules and cyber operations.
16.5.1 Cyber Operations That Constitute “Attacks” for the Purpose of Applying Rules on
Conducting Attacks. If a cyber operation constitutes an attack, then the law of war rules on
conducting attacks must be applied to those cyber operations. 45 For example, such operations

43

Colonel Borel, Report to the Conference from the Second Commission on Rights and Duties of Neutral States on
Land, in JAMES BROWN SCOTT, THE REPORTS TO THE HAGUE CONFERENCES OF 1899 AND 1907, 543 (1917) (“Weare here dealing with cables or apparatus belonging either to a neutral State or to a company or individuals, theoperation of which, for the transmission of news, has the character of a public service. There is no reason to compel
the neutral State to restrict or prohibit the use by the belligerents of these means of communication. Were it
otherwise, objections of a practical kind would be encountered, arising out of the considerable difficulties in
exercising control, not to mention the confidential character of telegraphic correspondence and the rapidity
necessary to this service. Through his Excellency Lord Reay, the British delegation requested that it be specified
that ‘the liberty of a neutral State to transmit messages, by means of its telegraph lines on land, its submarine cables
or its wireless apparatus, does not imply that it has any right to use them or permit their use in order to rendermanifest assistance to one of the belligerents’. The justice of the idea thus stated was so great as to receive theunanimous approval of the Commission.”).
44

See DEPARTMENT OF DEFENSE, Department of Defense Cyberspace Policy Report: A Report to Congress
Pursuant to the National Defense Authorization Act for Fiscal Year 2011, Section 934, 8 (Nov. 2011) (“The issue ofthe legality of transporting cyber ‘weapons’ across the Internet through the infrastructure owned and/or locatedin neutral third countries without obtaining the equivalent of ‘overflight rights.’ There is currently nointernational consensus regarding the definition of a ‘cyber weapon.’ The often low cost of developing malicious
code and the high number and variety of actors in cyberspace make the discovery and tracking of malicious cybertools difficult. Most of the technology used in this context is inherently dual-use, and even software might beminimally repurposed for malicious action.”); Department of Defense, Office of the General Counsel, An
Assessment of International Legal Issues in Information Operations (2nd ed., Nov. 1999), reprinted in 76 U.S.
NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 459, 489 (2002) (“There need be less concern for the reactionof nations through whose territory or communications systems a destructive message may be routed. If only thenation’s public communications systems are involved, the transited nation will normally not be aware of the routing
such a message has taken. Even if it becomes aware of the transit of such a message and attributes it to the UnitedStates, there would be no established principle of international law that it could point to as being violated. As
discussed above, even during an international armed conflict international law does not require a neutral nation to
restrict the use of its public communications networks by belligerents. Nations generally consent to the free use of
their communications networks on a commercial or reciprocal basis. Accordingly, use of a nation’s communications
networks as a conduit for an electronic attack would not be a violation of its sovereignty in the same way that would
be a flight through its airspace by a military aircraft.”).
45

Refer to § 5.4 (Rules on Conducting Assaults, Bombardments, and Other Attacks).

1020

must comport with the requirements of distinction and proportionality. 46
For example, a cyber attack that would destroy enemy computer systems could not bedirected against ostensibly civilian infrastructure, such as computer systems belonging to stock
exchanges, banking systems, and universities, unless those computer systems met the test forbeing a military objective under the circumstances. 47 A cyber operation that would notconstitute an attack, but would nonetheless seize or destroy enemy property, would have to be
imperatively demanded by the necessities of war. 48
16.5.1.1 Assessing Incidental Injury or Damage During Cyber Operations. The
principle of proportionality prohibits attacks in which the expected loss of life or injury tocivilians, and damage to civilian objects incidental to the attack, would be excessive in relation
to the concrete and direct military advantage expected to be gained. 49
For example, in applying this prohibition to cyber operations, it might be important toassess the potential effects of a cyber attack on computers that are not military objectives, suchas private, civilian computers that hold no military significance, but that may be networked tocomputers that are valid military objectives. 50
In assessing incidental injury or damage during cyber operations, it may be important toconsider that remote harms and lesser forms of harm, such as mere inconveniences or temporary
disruptions, need not be considered in assessing whether an attack is prohibited by the principle
of proportionality. 51 For example, a minor, brief disruption of internet services to civilians that
results incidentally from a cyber attack against a military objective generally would not need tobe considered in a proportionality analysis. 52 In addition, the economic harms in the belligerent
46

Refer to § 5.5 (Discrimination in Conducting Attacks); § 5.12 (Proportionality – Prohibition on Attacks Expected
to Cause Excessive Incidental Harm).
47

Refer to § 5.6 (Military Objectives).

48

Refer to § 5.17.2 (Enemy Property – Military Necessity Standard).

49

Refer to § 5.12 (Proportionality – Prohibition on Attacks Expected to Cause Excessive Incidental Harm).

50

Harold Hongju Koh, Legal Adviser, Department of State, International Law in Cyberspace: Remarks as
Prepared for Delivery to the USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012), reprinted in 54
HARVARD INTERNATIONAL LAW JOURNAL ONLINE, 8 (Dec. 2012) (“As you all know, information andcommunications infrastructure is often shared between state militaries and private, civilian communities. The law of
war requires that civilian infrastructure not be used to seek to immunize military objectives from attack, including in
the cyber realm. But how, exactly, are the jus in bello rules to be implemented in cyberspace? Parties to an armed
conflict will need to assess the potential effects of a cyber attack on computers that are not military objectives, suchas private, civilian computers that hold no military significance, but may be networked to computers that are valid
military objectives. Parties will also need to consider the harm to the civilian uses of such infrastructure in
performing the necessary proportionality review. Any number of factual scenarios could arise, however, which will
require a careful, fact-intensive legal analysis in each situation.”).
51

Refer to § 5.12.1.2 (Loss of Life, Injury, and Damage Versus Mere Inconveniences or Temporary Disruptions).

52

Cf. Program on Humanitarian Policy and Conflict Research at Harvard University, Commentary on the HPCR
Manual on International Law Applicable to Air and Missile Warfare, 28 (A.1.e.7) (2010) (“The definition of‘attacks’ also covers ‘non-kinetic’ attacks (i.e. attacks that do not involve the physical transfer of energy, such as
certain CNAs [computer network attacks]; see Rule 1(m)) that result in death, injury, damage or destruction of
persons or objects. Admittedly, whether ‘non-kinetic’ operations rise to the level of an ‘attack’ in the context of the1021

State resulting from such disruptions, such as civilian businesses in the belligerent State being
unable to conduct e-commerce, generally would not need to be considered in a proportionality
analysis. 53
Even if cyber operations that constitute attacks are not expected to result in excessive
incidental loss of life or injury or damage such that the operation would be prohibited by theprinciple of proportionality, the party to the conflict nonetheless would be required to takefeasible precautions to limit such loss of life or injury and damage in conducting those cyber
operations. 54
16.5.2 Cyber Operations That Do Not Amount to an “Attack” Under the Law of War. A
cyber operation that does not constitute an attack is not restricted by the rules that apply to
attacks. 55 Factors that would suggest that a cyber operation is not an “attack” include whether
the operation causes only reversible effects or only temporary effects. Cyber operations thatgenerally would not constitute attacks include:•

defacing a government webpage;•a minor, brief disruption of internet services;•

briefly disrupting, disabling, or interfering with communications; and•disseminating propaganda.

Since such operations generally would not be considered attacks under the law of war,
they generally would not need to be directed at military objectives, and may be directed at
civilians or civilian objects. Nonetheless, such operations must not be directed against enemy
civilians or civilian objects unless the operations are militarily necessary. 56 Moreover, suchoperations should comport with the general principles of the law of war. 57 For example, even if
a cyber operation is not an “attack” or does not cause any injury or damage that would need to beconsidered under the principle of proportionality in conducting attacks, that cyber operation stillshould not be conducted in a way that unnecessarily causes inconvenience to civilians or neutral
persons.
16.5.3 Duty to Take Feasible Precautions and Cyber Operations. Parties to a conflictmust take feasible precautions to reduce the risk of incidental harm to the civilian population andlaw of international armed conflict is a controversial issue. There was agreement among the Group of Experts thatthe term ‘attack’ does not encompass CNAs that result in an inconvenience (such as temporary denial of internet
access).”).
53

Refer to § 5.12.1.2 (Loss of Life, Injury, and Damage Versus Mere Inconveniences or Temporary Disruptions).

54

Refer to § 16.5.3 (Duty to Take Feasible Precautions and Cyber Operations).

55

Refer to § 5.4 (Rules on Conducting Assaults, Bombardments, and Other Attacks).

56

Refer to § 5.2.2.1 (Non-Violent Measures That Are Militarily Necessary).

57

Refer to § 16.2.2 (Application of Law of War Principles as a General Guide to Cyber Operations).

1022

other protected persons and objects. 58 Parties to the conflict that employ cyber operations shouldtake precautions to minimize the harm of their cyber activities on civilian infrastructure andusers. 59
The obligation to take feasible precautions may be of greater relevance in cyber
operations than other law of war rules because this obligation applies to a broader set of activities
than those to which other law of war rules apply. For example, the obligation to take feasible
precautions to reduce the risk of incidental harm would apply to a party conducting an attack
even if the attack would not be prohibited by the principle of proportionality. 60 In addition, theobligation to take feasible precautions applies even if a party is not conducting an attack because
the obligation also applies to a party that is subject to attack. 61
16.5.3.1 Cyber Tools as Potential Measures to Reduce the Risk of Harm to
Civilians or Civilian Objects. In some cases, cyber operations that result in non-kinetic orreversible effects can offer options that help minimize unnecessary harm to civilians. 62 In thisregard, cyber capabilities may in some circumstances be preferable, as a matter of policy, tokinetic weapons because their effects may be reversible, and they may hold the potential toaccomplish military goals without any destructive kinetic effect at all. 63
As with other precautions, the decision of which weapon to use will be subject to many
practical considerations, including effectiveness, cost, and “fragility,” i.e., the possibility thatonce used an adversary may be able to devise defenses that will render a cyber tool ineffective inthe future. 64 Thus, as with special kinetic weapons, such as precision-guided munitions that have
58

Refer to § 5.2.3 (Affirmative Duties to Take Feasible Precautions for the Protection of Civilians and Other
Protected Persons and Objects).
59

United States Submission to the U.N. Group of Governmental Experts on Developments in the Field ofInformation and Telecommunications in the Context of International Security 2012-2013, 4 (“The law of war also
requires warring States to take all practicable precautions, taking into account military and humanitarianconsiderations, to avoid and minimize incidental death, injury, and damage to civilians and civilian objects. In thecontext of hostilities involving information technologies in armed conflict, parties to the conflict should takeprecautions to minimize the harm of such cyber activities on civilian infrastructure and users.”).
60

Refer to § 5.10.5 (Relationship Between the Requirement to Take Feasible Precautions in Planning andConducting Attacks and the Prohibition on Attacks Expected to Cause Excessive Incidental Harm).
61

Refer to § 5.14 (Feasible Precautions to Reduce the Risk of Harm to Protected Persons and Objects by the Party
Subject to Attack).
62

Refer to § 5.11.6 (Weaponeering (E.g., Selecting Appropriate Weapons, Aim Points)).

63

United States Submission to the U.N. Group of Governmental Experts on Developments in the Field ofInformation and Telecommunications in the Context of International Security 2012-2013, 4 (“Cyber operations that
result in non-kinetic or reversible effects can be an important tool in creating options that minimize unnecessary
harm to civilians. In this regard, cyber capabilities may in some circumstances be preferable, as a matter of policy,
to kinetic weapons because their effects may be reversible, and they may hold the potential to accomplish military
goals without any destructive kinetic effect at all.”).
64

Department of Defense, Office of the General Counsel, An Assessment of International Legal Issues inInformation Operations (2nd ed., Nov. 1999), reprinted in 76 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAWSTUDIES 459, 490 (2002) (“Another possible implication of a defender’s technological prowess may arise when anation has the capacity for graduated self-defense measures. Some may argue that a nation having such capabilities
must select a response that will do minimal damage. This is a variant of the argument that a nation possessing1023

the potential to produce less incidental damage than other kinetic weapons, cyber capabilities
usually will not be the only type of weapon that is legally permitted.
16.5.4 Prohibition on Improper Use of Signs During Cyber Operations. Under the law ofwar, certain signs may not be used improperly. 65 These prohibitions may also be applicableduring cyber operations. For example, it would not be permissible to conduct a cyber attack or
to attempt to disable enemy internal communications by making use of communications that
initiate non-hostile relations, such as prisoner exchanges or ceasefires. 66 Similarly, it would beprohibited to fabricate messages from an enemy’s Head of State falsely informing that State’s
forces that an armistice or cease-fire had been signed. 67
On the other hand, the restriction on the use of enemy flags, insignia, and uniforms only
applies to concrete visual objects; it does not restrict the use of enemy codes, passwords, andcountersigns. 68 Thus, for example, it would not be prohibited to disguise network traffic as
though it came from enemy computers or to use enemy codes during cyber operations.
16.5.5 Use of Civilian Personnel to Support Cyber Operations. As with non-cyber
operations, the law of war does not prohibit States from using civilian personnel to support theircyber operations, including support actions that may constitute taking a direct part inhostilities. 69
Under the GPW, persons who are not members of the armed forces, but who are
authorized to accompany them, are entitled to POW status. 70 This category was intended toinclude, inter alia, civilian personnel with special skills in operating military equipment who

precision-guided munitions must always use them whenever there is a potential for collateral damage. That position
has garnered little support among nations and has been strongly rejected by the United States. There is broad
recognition that the risk of collateral damage is only one of many military considerations that must be balanced bymilitary authorities planning an attack. One obvious consideration is that a military force that goes into a protracted
conflict with a policy of always using precision-guided munitions whenever there is any potential for collateral
damage will soon exhaust its supply of such munitions. Similarly, military authorities must be able to weigh all
relevant military considerations in choosing a response in self-defense against computer network attacks. These
considerations will include the probable effectiveness of the means at their disposal, the ability to assess theireffects, and the “fragility” of electronic means of attack (i.e., once they are used, an adversary may be able to devise
defenses that will render them ineffective in the future).”).
65

Refer to § 5.24 (Improper Use of Certain Signs).

66

Refer to § 12.2 (Principle of Good Faith in Non-Hostile Relations).

67

Department of Defense, Office of the General Counsel, An Assessment of International Legal Issues inInformation Operations (2nd ed., Nov. 1999), reprinted in 76 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAWSTUDIES 459, 473 (2002) (“Perfidy: It may seem attractive for a combatant vessel or aircraft to avoid being attacked
by broadcasting the agreed identification signals for a medical vessel or aircraft, but such actions would be a war
crime. Similarly, it might be possible to use computer ‘morphing’ techniques to create an image of the enemy’s
chief of state informing his troops that an armistice or cease-fire agreement had been signed. If false, this would
also be a war crime.”).
68

Refer to § 5.23.1.5 (Use of Enemy Codes, Passwords, and Countersigns Not Restricted).

69

Refer to § 4.15.2.2 (Employment in Hostilities).

70

Refer to § 4.15 (Persons Authorized to Accompany the Armed Forces).

1024support and participate in military operations, such as civilian members of military aircrews. 71 It
would include civilian cyber specialists who have been authorized to accompany the armed
forces.
Civilians who take a direct part in hostilities forfeit protection from being made the objectof attack. 72
16.6 LEGAL REVIEW OF WEAPONS THAT EMPLOY CYBER CAPABILITIESDoD policy requires the legal review of the acquisition of weapons or weapon systems. 73
This policy would include the review of weapons that employ cyber capabilities to ensure thatthey are not per se prohibited by the law of war. 74 Not all cyber capabilities, however, constitutea weapon or weapons system. Military Department regulations address what cyber capabilities
require legal review. 75
The law of war does not prohibit the development of novel cyber weapons. The
customary law of war prohibitions on specific types of weapons result from State practice andopinio juris demonstrating that a type of weapon is illegal; the mere fact that a weapon is novelor employs new technology does not mean that the weapon is illegal. 76
Although which issues may warrant legal analysis would depend on the characteristics of
the weapon being assessed, a legal review of the acquisition or procurement of a weapon that
employs cyber capabilities likely would assess whether the weapon is inherently
indiscriminate. 77 For example, a destructive computer virus that was programmed to spread anddestroy uncontrollably within civilian internet systems would be prohibited as an inherently

71

Refer to § 4.15 (Persons Authorized to Accompany the Armed Forces).

72

Refer to § 5.8 (Civilians Taking a Direct Part in Hostilities).

73

Refer to § 6.2 (DoD Policy of Reviewing the Legality of Weapons).

74

Harold Hongju Koh, Legal Adviser, Department of State, International Law in Cyberspace: Remarks as
Prepared for Delivery to the USCYBERCOM Inter-Agency Legal Conference (Sept. 18, 2012), reprinted in 54
HARVARD INTERNATIONAL LAW JOURNAL ONLINE, 6 (Dec. 2012) (“States should undertake a legal review of
weapons, including those that employ a cyber capability. Such a review should entail an analysis, for example, of
whether a particular capability would be inherently indiscriminate, i.e., that it could not be used consistent with theprinciples of distinction and proportionality. The U.S. Government undertakes at least two stages of legal review of
the use of weapons in the context of armed conflict: first, an evaluation of new weapons to determine whether theiruse would be per se prohibited by the law of war; and second, specific operations employing weapons are always
reviewed to ensure that each particular operation is also compliant with the law of war.”).
75

See, e.g., DEPARTMENT OF THE ARMY REGULATION 27-53, Review of Legality of Weapons Under International
Law (Jan. 1, 1979); SECRETARY OF THE NAVY INSTRUCTION 5000.2E, Department of the Navy Implementation andOperation of the Defense Acquisition System and the Joint Capabilities Integration and Development System (Sept.
1, 2011); DEPARTMENT OF THE AIR FORCE INSTRUCTION 51-402, Legal Reviews of Weapons and Cyber Capabilities(Jul. 27, 2011).
76

Refer to § 6.2.1 (Review of New Types of Weapons).

77

Refer to § 6.7 (Inherently Indiscriminate Weapons).

1025

indiscriminate weapon. 78

78

United States Submission to the U.N. Group of Governmental Experts on Developments in the Field ofInformation and Telecommunications in the Context of International Security 2012-2013, 3 (“Weapons that cannot
be directed at a specific military objective or whose effects cannot be controlled would be inherently indiscriminate,
and per se unlawful under the law of armed conflict. In the traditional kinetic context, such inherently
indiscriminate and unlawful weapons include, for example, biological weapons. Certain cyber tools could, in lightof the interconnected nature of the network, be inherently indiscriminate in the sense that their effects cannot be
predicted or controlled; a destructive virus that could spread uncontrollably within civilian internet systems mightfall into this category. Attacks using such tools would be prohibited by the law of war.”).

1026

XVII – Non-International Armed Conflict (NIAC)
Chapter Contents
17.1 Introduction
17.2 Application of International Law to NIACs
17.3 Special Agreements Between Parties to the Conflict
17.4 A State’s Use of Its Domestic Law and NIAC
17.5 Principle of Distinction in NIAC
17.6 Respect and Humane Treatment of Persons Taking No Active Part in
Hostilities in NIAC
17.7 Rules on Conducting Attacks in NIAC
17.8 Impartial Humanitarian Organizations and Humanitarian Activities During
NIAC
17.9 Protection of the Civilian Population in NIAC
17.10 Protection of Children in NIAC
17.11 Protection of Cultural Property in NIAC
17.12 Use of Captured or Surrendered Enemy Personnel in NIAC
17.13 Weapons in NIAC
17.14 Protection of the Wounded, Sick, Shipwrecked, and Dead in NIAC
17.15 Protection of Medical and Religious Personnel and Medical Transports in
NIAC
17.16 Display of the Distinctive Emblem in NIAC
17.17 Detention in NIAC
17.18 Non-Intervention and Neutral Duties in NIAC
17.1 INTRODUCTION
This Chapter addresses the law of war rules applicable to armed conflict not of aninternational character, or non-international armed conflict (NIAC). Non-international armed
conflicts are those armed conflicts that are not between States. 1 In particular, this Chapter
addresses the rules applicable to State armed forces conducting military operations against nonState armed groups.
The application of the law of war to non-international armed conflict may be complex. 2
In U.S. practice, in certain cases, the rules applicable in international armed conflict have been
applied as a matter of policy to military operations in non-international armed conflict.
17.1.1 Non-International Armed Conflict – Notes on Terminology. Non-internationalarmed conflict is commonly referred to by the acronym “NIAC.” Although there has been arange of views on what constitutes a non-international armed conflict, the intensity of theconflict and the organization of the parties are criteria that have been assessed to distinguish
1

Refer to § 3.3.1 (International Armed Conflict and Non-International Armed Conflict).

2

Refer to § 17.2 (Application of International Law to NIACs).

1027

between non-international armed conflict and internal disturbances and tensions, such as riots,
isolated and sporadic acts of violence, and other acts of a similar nature. 3
A variety of terms have been used to describe factual situations that often may becharacterized as non-international armed conflict.
17.1.1.1 NIAC and Civil War. Civil war is a classic example of a noninternational armed conflict. For example, a non-international armed conflict could involve theopen rebellion of segments of a nation’s armed forces (sometimes called dissident armed forces)
against the incumbent regime, each claiming to be the legitimate government. 4
In some cases of civil war, the insurgent party has been recognized as a belligerent, and,at least in some respects, the law of international armed conflict would be applied by the Stateschoosing to recognize the insurgent party as a belligerent. 5
17.1.1.2 NIAC and Internal Armed Conflict. In some cases, the term internal
armed conflict is used as a synonym for non-international armed conflict. Such usage may
reflect a traditional definition of non-international armed conflict as only those armed conflicts
occurring within the borders of a single State. 6 Non-international armed conflicts, however, areclassified as such simply based on the status of the parties to the conflict, and sometimes occur inmore than one State. 7 The mere fact that an armed conflict occurs in more than one State andthus may be characterized as international “in scope” does not render it “international incharacter.” 8
17.1.1.3 Transnational or Internationalized NIACs. Sometimes the terms of“transnational” or “internationalized” are used to describe certain non-international armed
conflicts.
“Transnational” has been used to indicate that the non-international armed conflict takes
place in more than one State.

3

Refer to § 3.4.2.2 (Distinguishing Armed Conflict From Internal Disturbances and Tensions).

4

See, e.g., LIEBER CODE art. 150 (“Civil war is war between two or more portions of a country or state, eachcontending for the mastery of the whole, and each claiming to be the legitimate government. The term is also
sometimes applied to war of rebellion, when the rebellious provinces or portions of the state are contiguous to thosecontaining the seat of government.”).
5Refer to § 3.3.3 (State Recognition of Armed Groups as Belligerents).

6

See, e.g., GC COMMENTARY 36 (“Speaking generally, it must be recognized that the conflicts referred to in Article
3 [of the GC] are armed conflicts, with armed forces on either side engaged in hostilities—conflicts, in short, which
are in many respects similar to an international war, but take place within the confines of a single country.”).
7

Refer to § 3.3.1 (International Armed Conflict and Non-International Armed Conflict).

8

Hamdan v. Rumsfeld, 548 U.S. 557, 630 (2006) (“The Court of Appeals thought, and the Government asserts, that
Common Article 3 [of the 1949 Geneva Conventions] does not apply to Hamdan because the conflict with al Qaeda,
being ‘‘international in scope,’’ does not qualify as a ‘‘conflict not of an international character.’’ 415 F. 3d, at 41.
That reasoning is erroneous. The term ‘conflict not of an international character’ is used here in contradistinction toa conflict between nations.”).

1028

“Internationalized” has been used to indicate that multiple States may be involved in a
non-international armed conflict.
17.1.1.4 NIAC and Guerilla or Unconventional Warfare. Guerrilla warfare may
be understood to be military and paramilitary operations conducted in enemy-held or hostile
territory by irregular, predominantly indigenous forces. 9 Guerrilla operations or unconventional
warfare are common during non-international armed conflict. Such operations, however, are amethod of warfare that has been employed in international armed conflicts and occupation as
well.
17.1.1.5 NIAC and Rebellion or Insurrection. Rebellion, insurrection, or
insurgency may also be types of non-international armed conflict. 10 Counter-insurgency
operations generally occur in the context of non-international armed conflict, but could occur inthe context of an international armed conflict and occupation as well.
17.1.1.6 NIAC and Terrorism. Issues surrounding terrorism and the activities ofterrorist groups can arise in the contexts of non-international armed conflict, international armed
conflict, and, of course, can arise outside the context of armed conflict altogether. Acts ofterrorism are prohibited during international armed conflict and during non-international armed
conflict. 11
17.1.1.7 NIAC and Small Wars or Low-Intensity Conflict. Non-internationalarmed conflict has sometimes been discussed using the term “low-intensity” conflict. 12 The term
9

JOINT PUBLICATION 3-05.1, Joint Special Operations Task Force Operations, GL-11 (Apr. 26, 2007) (“guerrilla
warfare. Military and paramilitary operations conducted in enemy-held or hostile territory by irregular,
predominantly indigenous forces. Also called GW. (JP 3-05.1)”). See also FRANCIS LIEBER, GUERRILLA PARTIESCONSIDERED WITH REFERENCE TO THE LAWS AND USAGES OF WAR 7-8 (1862) (“[B]ut it may be stated here thatwhatever may be our final definition, it is universally understood in this country at the present time that a guerrilla
party means an irregular band of armed men, carrying on an irregular war, not being able, according to theircharacter as a guerrilla party, to carry on what the law terms a regular war. The irregularity of the guerrilla party
consists in its origin, for it is either self-constituted or constituted by the call of a single individual, not according to
the general law of levy, conscription, or volunteering; it consists in its disconnection with the army, as to its pay,provision, and movements, and it is irregular as to the permanency of the band, which may be dismissed and calledagain together at any time.”).
10
See, e.g., LIEBER CODE art. 151 (“The term rebellion is applied to an insurrection of large extent, and is usually a
war between the legitimate government of a country and portions of provinces of the same who seek to throw off
their allegiance to it and set up a government of their own.”).
11Refer to § 10.5.3.2 (Collective Penalties and Measures of Intimidation or Terrorism); § 17.6.5 (Prohibition on
Acts of Terrorism).
12

John M. Collins, U.S. Low Intensity Conflicts, 1899-1990, 4 (Congressional Research Service, Sept. 10, 1990)(“This survey locates LIC [Low-Intensity Conflict] on the conflict spectrum just above normal peacetime
competition and just below any kind of armed combat that depletes U.S. forces slightly, if at all (Figures 1 and 2graphically contrast LIC with mid- and high-intensity conflicts). Limitations on violence, rather than force levels
and arsenals, determine the indistinct upper boundary of LIC. Large military formations conceivably could conduct
low-intensity operations for limited objectives using the most lethal weapons (perhaps for signalling), provided few
U.S. casualties and little U.S. damage ensued. The lower boundary, where nonviolent LICs abut normal peacetime
competition, is equally inexact. Political, economic, technological, and psychological warfare, waged for deterrent,
offensive, or defensive purposes, occupy prominent places. So do nonviolent military operations, typified by showsof force and peacekeeping. Insurgencies, counterinsurgencies, coups d’etat, transnational terrorism,1029

“small wars” has also been used in military doctrine to describe situations that may becharacterized as non-international armed conflicts. 13 “Low-intensity conflict” and “small wars”
are not synonymous with non-international armed conflict, but there is a high degree of overlap
between those categories and non-international armed conflict.
17.1.2 Important Commonalities Between the Law Applicable to International Armed
Conflict and the Law Applicable to Non-International Armed Conflict.
17.1.2.1 Common Baseline Rules. Certain baseline rules, in particular relating to
the humane treatment of detainees, must be observed regardless of the character of the armed
conflict. 14 The fact that certain baseline rules are common to international armed conflict andnon-international armed conflict means that it may be unnecessary to determine the character of
the armed conflict in order to assess whether the law has been violated.
17.1.2.2 Foundational Principles of the Law of War. The foundational principlesof the law of war are common to both international armed conflict and non-international armed
conflict. 15 Thus, reference to first principles in the law of war may be most useful in assessing
the rules applicable during non-international armed conflict. 16
17.1.2.3 Rules for Conducting Operations Against Unprivileged Belligerents.
Rules for conducting operations against unprivileged belligerents are found in both the law
applicable to international armed conflict and the law applicable to non-international armed
anti/counterterrorism, minor conventional wars, and narco conflict lie between those poles. Variations within eachcategory, overlaps, and interlocks are virtually endless.”).
13

MARINE CORPS, Small Wars Manual, ¶1-1-¶1-2 (1940), reprinted as FLEET MARINE FORCE REFERENCE
PUBLICATION 12-15 (1990) (“The ordinary expedition of the Marine Corps which does not involve a major effort inregular warfare against a first-rate power may be termed a small war. It is this type of routine active foreign duty of
the Marine Corps in which this manual is primarily interested. Small wars represent the normal and frequent
operations of the Marine Corps. During about 85 of the last 100 years, the Marine Corps has been engaged in small
wars in different parts of the world. The Marine Corps has landed troops 180 times in 37 countries from 1800 to
1934. Every year during the past 36 years since the Spanish-American War, the Marine Corps has been engaged in
active operations in the field. … Most of the small wars of the United States have resulted from the obligation of theGovernment under the spirit of the Monroe Doctrine and have been undertaken to suppress lawlessness orinsurrection. Punitive expeditions may be resorted to in some instances, but campaigns of conquest are contrary to
the policy of the Government of the United States.”).
14

Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, Judgment,
1986 I.C.J. 14, 114 (¶219) (“Because the minimum rules applicable to international and to non-international
conflicts are identical, there is no need to address the question whether those actions must be looked at in the context
of the rules which operate for the one or for the other category of conflict. The relevant principles are to be looked
for in the provisions of Article 3 of each of the four Conventions of 12 August 1949, the text of which, identical ineach Convention, expressly refers to conflicts not having an international character.”).
See Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-AR72, Decision on the Defence Motion forInterlocutory Appeal on Jurisdiction, ¶119 (Oct. 2, 1995) (“Indeed, elementary considerations of humanity andcommon sense make it preposterous that the use by States of weapons prohibited in armed conflicts between
themselves be allowed when States try to put down rebellion by their own nationals on their own territory. What isinhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil
strife.”). Refer to § 2.1 (Introduction).
15

16

Refer to § 17.2.2.1 (Use of Law of War Principles to Discern Rules Applicable to NIAC).

1030

conflict. 17 The rules for States conducting military operations against unprivileged belligerents
in international armed conflict are not significantly different from the rules for States conducting
military operations against non-State armed groups during non-international armed conflict.
17.1.3 Important Differences Between the Law Applicable to International Armed
Conflict and the Law Applicable to Non-International Armed Conflict.
17.1.3.1 Nationality and Territoriality Exclusions in the Law of International
Armed Conflict. Certain rules applicable to international armed conflict reflect concepts (e.g.,nationality and territory) that preclude the application of those rules to internal armed conflicts.
For example, nationals who are in the power of their State of nationality would not be provided
POW status under the GPW or protected person status under the GC. 18 Thus, even if the GPW
and GC could otherwise be deemed applicable to a civil war, these exclusions based onnationality would limit the application of many of the provisions of the GPW and GC (as amatter of treaty law) to internal armed conflicts. In any case, it remains true that fundamental
principles guaranteeing humane treatment (e.g., Common Article 3 of the 1949 Geneva
Conventions) would apply in any such circumstances.
Similarly, it is the essence of belligerent occupation that it should be exercised overforeign, enemy territory; 19 thus, occupation law rules would not apply to internal armed
conflict. 20
Certain non-international armed conflicts, however, are not internal armed conflicts. 21
17.1.3.2 Prevalence of Customary Law Applicable to NIAC as Opposed to Treaty
Law. There are fewer treaty provisions that address non-international armed conflict than that
address international armed conflict. 22 Put another way, practitioners are generally more likely
to encounter situations regulated by customary law in non-international armed conflict than ininternational armed conflict. Certain guidelines may be helpful in assessing customary
17

Refer to § 4.3 (Lawful Combatants and Unprivileged Belligerents).

18

Refer to § 4.4.4.2 (Nationals of a State Who Join Enemy Forces); § 10.3.3.1 (A State’s Own Nationals).

19

Refer to § 11.2.2.3 (“Of the Hostile Army” – Belligerent Occupation Applies to Enemy Territory).

20

See Richard A. Baxter, Ius in Bello Interno: The Present and Future Law, in JOHN NORTON MOORE, LAW AND
CIVIL WAR IN THE MODERN WORLD 518, 531 (1974) (“Other provisions of the [Fourth Geneva] Convention apply to‘territory of a party to the conflict’ and to ‘occupied territory.’ In internal conflict, the lawful government and theinsurgents will both maintain that there is only ‘territory of a party to the conflict.’ Territory cannot be belligerently
occupied by the lawful government or the rebels. There is no starting point which divides territory into friendly andenemy areas, so that, when the latter type of area is occupied, it will be belligerently occupied. It surely cannot be
maintained that the insurgents should be required to treat all territory over which they exercise control as being
belligerently occupied or that the lawful government should be forced to treat territory liberated from the control ofrebels as belligerently occupied. It is of the essence of belligerent occupation that it should be exercised overforeign, enemy territory. Such requirements as that of Article 43 of the Hague Regulations that the occupant must
respect, ‘unless absolutely prevented, the laws in force in the country’ are simply unworkable in domestic
conflict.”).
21

Refer to § 17.1.1.2 (NIAC and Internal Armed Conflict); § 17.1.1.3 (Transnational or Internationalized NIACs).

22

Refer to § 17.2.1 (Treaties That Apply to NIAC).

1031

international law applicable to non-international armed conflict. 23
17.1.3.3 Important Substantive Differences Between the Law Applicable toInternational Armed Conflict and the Law Applicable to Non-International Armed Conflict.
There are important substantive differences between the law applicable to international armed
conflict and the law applicable to non-international armed conflict, including the following three
examples.
First, the different circumstances that typically arise in non-international armed conflicts
as compared to international armed conflicts may need to be considered in applying the principleof distinction. 24
Second, States have greater latitude to compel enemy persons to switch allegiance or toserve the State in hostilities during non-international armed conflict than States have to compel
enemy nationals during international armed conflict. 25
Third, States have greater latitude to use their domestic law against enemy armed groups
in non-international armed conflict than States have to use their domestic law against enemy
forces or enemy nationals in international armed conflict. 26
17.2 APPLICATION OF INTERNATIONAL LAW TO NIACS
In some cases, there may be important substantive differences between the rules
applicable in international armed conflict and the rules applicable in non-international armed
conflict. 27 In some cases, only the general essence of a rule that applies during internationalarmed conflict applies during non-international armed conflict, as opposed to the detailed
provisions in some treaties relating to many aspects of international armed conflict. 28
The extent to which the law of war rules that apply during international armed conflictmust or should apply during non-international armed conflict has not been clearly defined as thelaw of war has developed. 29 The discretion afforded States in applying law of war rules to non23

Refer to § 17.2.2 (Assessing Customary International Law Applicable to NIAC).

24

Refer to § 17.5 (Principle of Distinction in NIAC).

25

Refer to § 17.12.1 (Compelling Captured or Surrendered Enemy Personnel to Take Part in the Conflict).

26

Refer to § 17.4.1 (Ability of a State to Use Its Domestic Law Against Non-State Armed Groups).

27

Refer to § 17.1.3.3 (Important Substantive Differences Between the Law Applicable to International Armed
Conflict and the Law Applicable to Non-International Armed Conflict).
See, e.g., Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-AR72, Decision on the Defence Motion forInterlocutory Appeal on Jurisdiction, ¶¶126-127 (Oct. 2, 1995) (“The emergence of the aforementioned generalrules on internal armed conflicts does not imply that internal strife is regulated by general international law in all its
aspects. Two particular limitations may be noted: (i) only a number of rules and principles governing internationalarmed conflicts have gradually been extended to apply to internal conflicts; and (ii) this extension has not takenplace in the form of a full and mechanical transplant of those rules to internal conflicts; rather, the general essence of
those rules, and not the detailed regulation they may contain, has become applicable to internal conflicts.”).
28

29See, e.g., FRANCIS LIEBER, GUERRILLA PARTIES CONSIDERED WITH REFERENCE TO THE LAWS AND USAGES OF
WAR 21 (1862) (“The application of the laws and usages of war to wars of insurrection or rebellion is always

1032

international armed conflicts results, in part, because treaty provisions applicable to internationalarmed conflict have been presumed not to apply to non-international armed conflict unlessexplicitly made applicable. For example, in the 1949 Geneva Conventions, only Common
Article 3 applies to non-international armed conflict. 30 The discretion afforded States in thisregard may also be understood to result from the wide range of circumstances that constitutenon-international armed conflict. The United States has objected to efforts to make theapplicability of the rules of international armed conflict turn on subjective and politicized criteriathat would eliminate the distinction between international and non-international conflicts. 31
In the sections that follow, which reflect the practice of the U.S. armed forces in applying
the law of war to non-international armed conflict, the rules articulated may exceed therequirements of applicable customary international law and treaty law.
17.2.1 Treaties That Apply to NIAC. Relatively few treaties have provisions that
expressly apply to non-international armed conflicts. Some treaties, however, may apply
implicitly to non-international armed conflict.
17.2.1.1 Treaties That Have Provisions That Explicitly Apply to NIAC. Certain
treaties to which the United States is a Party have provisions that explicitly apply to noninternational armed conflict. These treaties include:•

the 1949 Geneva Conventions (i.e., Common Article 3); 32•

the 1954 Hague Cultural Property Convention; 33•

the CCW Amended Mines Protocol; 34

undefined, and depends on relaxations of municipal law, suggested by humanity or necessitated by the numbers
engaged in the insurrection. The law of war, as acknowledged between independent belligerents, is, at times, notallowed to interfere with the municipal law of rebellion, or is allowed to do so only very partially, as was the case inGreat Britain during the Stuart rebellion, in the middle of last century; at other times, again, measures are adopted inrebellions, by the victorious party or the legitimate government, more lenient even than the international law ofwar.”).
30
GC COMMENTARY 34 (“To borrow the phrase of one of the delegates, Article 3 is like a ‘Convention inminiature’. It applies to non-international conflicts only, and will be the only Article applicable to them until suchtime as a special agreement between the Parties has brought into force between them all or part of the otherprovisions of the Convention.”).
31

Refer to § 3.3.4 (AP I Provision on National Liberation Movements).

32

GPW art. 3 (“In the case of armed conflict not of an international character occurring in the territory of one of theHigh Contracting Parties … .”); GWS (same); GWS Sea (same); GC (same).
33

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 19(1) (“In the event of an armed conflict not of aninternational character occurring within the territory of one of the High Contracting Parties, each party to theconflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for
cultural property.”).
34

CCW AMENDED MINES PROTOCOL art. 1 (“2. This Protocol shall apply, in addition to situations referred to in
Article I of this Convention, to situations referred to in Article 3 common to the Geneva Conventions of 12 August
1949. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated andsporadic acts of violence and other acts of a similar nature, as not being armed conflicts. 3. In case of armed

1033

•

the Amended CCW, including Protocols I, III, and IV; 35•

the CCW Protocol V on Explosive Remnants of War; 36 and•

AP III. 37

Treaties to which the United States is not a Party that have provisions applicable to“armed conflict not of an international character” include:•

AP II; 38 and•the Rome Statute of the International Criminal Court. 39

17.2.1.2 Implicit Application of Treaty Provisions to Situations in NIAC. Sometreaties may apply implicitly to certain situations in non-international armed conflict. For
example, the Genocide Convention does not expressly refer to non-international armed conflict,but recognizes that acts of genocide are criminal “whether committed in time of peace or time ofwar” and whether they are committed by “constitutionally responsible rulers, public officials or
private individuals.” 40 Similarly, the Convention Against Torture recognizes that “Noconflicts not of an international character occurring in the territory of one of the High Contracting Parties, each party
to the conflict shall be bound to apply the prohibitions and restrictions of this Protocol.”).
35

CCW AMENDED art. 1 (“2. This Convention and its annexed Protocols shall also apply, in addition to situations
referred to in paragraph 1 of this Article, to situations referred to in Article 3 common to the Geneva Conventions of
12 August 1949. This Convention and its annexed Protocols shall not apply to situations of internal disturbances
and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature, as not being
armed conflicts. 3. In case of armed conflicts not of an international character occurring in the territory of one of theHigh Contracting Parties, each party to the conflict shall be bound to apply the prohibitions and restrictions of thisConvention and its annexed Protocols.”).

36

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 1(3) (“This Protocol shall apply to situations resulting
from conflicts referred to in Article 1, paragraphs 1 to 6, of the Convention, as amended on 21 December 2001.”).
37

AP III art. 1 (“2. This Protocol reaffirms and supplements the provisions of the four Geneva Conventions of 12
August 1949 (‘the Geneva Conventions’) and, where applicable, of their two Additional Protocols of 8 June 1977(‘the 1977 Additional Protocols’) relating to the distinctive emblems, namely the red cross, the red crescent and the
red lion and sun, and shall apply in the same situations as those referred to in these provisions.”).
38

AP II art. 1(1) (“This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of
12 August 1949 without modifying its existing conditions of applications, shall apply to all armed conflicts which
are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating
to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of aHigh Contracting Party between its armed forces and dissident armed forces or other organized armed groups which,under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained
and concerted military operations and to implement this Protocol.”).
39

ROME STATUTE art. 8(2)(c) (“In the case of an armed conflict not of an international character, serious violationsof article 3 common to the four Geneva Conventions …, namely, any of the following acts committed against
persons taking no active part in the hostilities”); ROME STATUTE art. 8(2)(f) (“Paragraph 2(e) applies to armed
conflicts not of an international character … .”).
40

Convention on the Prevention and Punishment of the Crime of Genocide, art. 1, Dec. 9, 1948, 78 UNTS 277, 280(“The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime
under international law which they undertake to prevent and to punish.”); id. at art. 4 (“Persons committing genocide1034

exceptional circumstances whatsoever, whether a state of war or a threat of war, internal politicalinstability or any other public emergency, may be invoked as a justification of torture”; thus, thestate of non-international armed conflict could not be justification for torture. 41
The prohibitions in Article 1 of the Chemical Weapons Convention have been interpreted
to apply to non-international armed conflict. 42
In addition, the prohibitions and restrictions on acquisition and development of biologicalweapons in the Biological Weapons Convention effectively prevent the use of biologicalweapons by States in non-international armed conflict. 43
Further, the obligations in the Child Soldiers Protocol relate implicitly to noninternational armed conflict. 44
17.2.1.3 Human Rights Treaties and NIAC. During an internal non-internationalarmed conflict, a State would continue to be bound by applicable human rights treaty
obligations. 45
The applicability of human rights treaty obligations during non-international armed
conflict may depend on a variety of factors. Such applicability depends on the terms of theparticular treaty in question, and whether the State has exercised an authorized derogation fromits provisions due to an emergency situation. The applicability of a human rights treaty
obligation with respect to an individual, such as an obligation under the International Covenant
on Civil and Political Rights, for example, may depend on whether the person is located outside
the territory of the State Party. 46 In addition, law of war rules constitute the lex specialis duringsituations of armed conflict, and as such, serve as the controlling body of law with regard to the
conduct of hostilities and the protection of war victims. 47
17.2.2 Assessing Customary International Law Applicable to NIAC. As a consequenceof the fewer treaty provisions applicable to non-international armed conflict, many of the rules
applicable to non-international armed conflict are found in customary international law. The
following guidelines may be helpful in assessing the customary international law applicable tonon-international armed conflict.
17.2.2.1 Use of Law of War Principles to Discern Rules Applicable to NIAC. The
or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible
rulers, public officials or private individuals.”).
41

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 2(2), Dec. 10,
1984, 1465 UNTS 85, 114. Refer to § 1.6.3.4 (Convention Against Torture).

42

Refer to § 6.8.3.2 (Prohibitions With Respect to Chemical Weapons).

43

Refer to § 6.9.1 (Biological Weapons – Prohibition on Use as a Method of Warfare).

44

Refer to § 4.20.5.2 (Child Soldiers Protocol).

45

Refer to § 1.6.3 (Human Rights Treaties).

46

Refer to § 1.6.3.3 (International Covenant on Civil and Political Rights (ICCPR)).

47

Refer to § 1.3.2 (The Law of War’s Relationship to Other Bodies of Law).

1035

fundamental principles of the law of war also provide the foundation for the rules applicableduring non-international armed conflict. 48 As during international armed conflict, the principlesof the law of war form the general guide for conduct during non-international armed conflict,when no specific rule applies. 49
However, the application of law of war principles may differ insofar as the circumstances
in international armed conflicts may often be quite different from the circumstances in noninternational armed conflicts. 50
17.2.2.2 Considered Absence of a Restriction in NIAC. Under general principles
of legal interpretation, when a rule mentions specific circumstances or conditions in which it
applies, it may give rise to a presumption that the rule was not intended to apply in other related
circumstances or conditions that are not specifically mentioned. 51
Thus, if a treaty addresses both international armed conflict and non-international armed
conflict, and provides for a restriction in international armed conflict but does not provide forthat restriction in non-international armed conflict, then this omission may, to some extent,
reflect States’ views that such restrictions were not applicable in non-international armed
conflict. 52 Similarly, States negotiated and adopted AP I and AP II at the same diplomatic
48

Refer to § 17.1.2.2 (Foundational Principles of the Law of War).

49

Refer to § 2.1.2.2 (Law of War Principles as a General Guide).

50

Refer to § 17.5 (Principle of Distinction in NIAC).

51

See, e.g., Tucker v. Alexandroff, 183 U.S. 424, 436 (1902) (“But whatever view might be taken of the question ofdelivering over foreign seamen in the absence of a treaty, we are of opinion that the treaty with Russia having
contained a convention upon this subject, that convention must alone be looked to in determining the rights of theRussian authorities to the reclamation of the relator. Where the signatory powers have themselves fixed the terms
upon which deserting seamen shall be surrendered, we have no right to enlarge those powers upon the principles ofcomity so as to embrace cases not contemplated by the treaty. Upon general principles applicable to theconstruction of written instruments, the enumeration of certain powers with respect to a particular subject-matter is anegation of all other analogous powers with respect to the same subject-matter. As observed by Lord Denham in
Aspdin v. Austin, ‘where parties have entered into written engagements with express stipulations, it is manifestly notdesirable to extend them by any implications; the presumption is that, having expressed some, they have expressed
all the conditions by which they intend to be bound under that instrument.’ The rule is curtly stated in the familiar
legal maxim, Expressio unius est exclusio alterius.”) (internal citations omitted); The S.S. Wimbledon, (United
Kingdom, France, Japan v. Germany) (Judgment), 1923 P.C.I.J. (series A) No. 1, at 23-24 (“Although the Kiel
Canal, having been constructed by Germany in German territory, was, until 1919, an internal waterway of the stateholding both banks, the Treaty has taken care not to assimilate it to the other internal navigable waterways of theGerman Empire. A special section has been created at the end of Part XII, dealing with ports, waterways andrailways, and in this special section rules exclusively designed for the Kiel Canal have been inserted; these rules
differ on more than one point from those to which other internal navigable waterways of the Empire are subjected by
Articles 321 to 327. … The provisions relating to the Kiel Canal in the Treaty of Versailles are therefore selfcontained; if they had to be supplemented and interpreted by the aid of those referring to the inland navigable
waterways of Germany in the previous Sections of Part XII, they would lose their ‘raison d’être’, such repetitions as
are found in them would be superfluous and there would be every justification for surprise at the fact that, in certain
cases, when the provisions of Articles 321 to 327 might be applicable to the canal, the authors of the Treaty shouldhave taken the trouble to repeat their terms or re-produce their substance.”).
52

See, e.g., II OFFICIAL RECORDS OF THE UNITED NATIONS DIPLOMATIC CONFERENCE OF PLENIPOTENTIARIES ON
THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT 157-58 (A/CONF.183/C.1/SR.4, ¶¶33-34) (2002)(“33. Mr. van der Wind (Netherlands), acting as Coordinator of part 2 of the draft Statute, said that the definition1036

conference, and the omission from AP II of restrictions present in AP I may, to some extent,
reflect States’ views that such restrictions were not applicable in non-international armed
conflict. 53
17.2.2.3 Application of IAC Rules by Analogy. If an action is not prohibited by
the law of war applicable to international armed conflict, it generally would not be prohibited by
the law of war applicable to non-international armed conflict.
For example, analogous provisions of the GPW and GC may be helpful for understanding
the baseline standards in international law for detention because the baseline standards applicable
to all detainees during armed conflict (e.g., Common Article 3 of the 1949 Geneva Conventions)
are not more favorable than the treatment and protections applicable to POWs and civilianinternees under the GPW and GC, respectively. 54 Thus, in some instances it may be appropriate
to implement measures during detention of persons during non-international armed conflict byanalogy to the internment of POWs during international armed conflict or by analogy to theof war crimes was divided into four sections, of which sections A and B concerned norms applicable in internationalarmed conflict and sections C and D those applicable in internal armed conflict. … 41. Under section D,
subparagraph (f), the options were very similar to those proposed in section B, subparagraph (t), the differences inwording stemming from the fact that the norms applicable to international armed conflict and the sources used were
somewhat different, as could be seen, for example, in options 2 and 3 which referred to armed forces or groups, andin the reference to allowing children to take part.”).
53

See, e.g., XIV OFFICIAL RECORDS OF THE CDDH 67 (CDDH/III/SR.8, ¶¶67-72) (“Mr. ALDRICH (United Statesof America) said that article 46 was important for giving general guidance to military commanders in the conduct of
their operations. … His delegation supported the amendments to article 26 of draft Protocol II in document
CDDH/III/36. It was inappropriate to include the same detailed provisions in a protocol on non-international armed
conflicts as in one on international armed conflicts.”); XIV OFFICIAL RECORDS OF THE CDDH 179(CDDH/III/SR.20, ¶53) (Mrs. DARIIMAA (Mongolia) said that the Working Group should consider the differences
between article 28 of draft Protocol II and the corresponding article of draft Protocol I, since the practices and rules
current in international and internal law were not the same. Unless that was taken into account, the Protocol would
be inapplicable and might open the way to various forms of interference in the internal affairs of State.”); XIV
OFFICIAL RECORDS OF THE CDDH 73 (CDDH/III/SR.9, ¶14) (“Mr. BLISHCHENKO (Union of Soviet Socialist
Republics) said that he wished to reply to certain delegations which had expressed the desire to see the samerevisions in article 26 of draft Protocol II and in article 46 of draft Protocol I. He pointed out that there weredifferences between international and internal conflicts. With regard to the latter, it was essential to make rules thateveryone could accept.”); XV OFFICIAL RECORDS OF THE CDDH 460 (Committee III Report, CDDH/407/Rev.1,¶40) (“The Committee was also aided in its task by the somewhat similar word done at the third session of theConference by Committee I with respect to draft Protocol II. As a matter of drafting, the Committee adopted thetexts of those parts of Articles 6 and 10 of draft Protocol II which it decided to include in Article 65. The rule
applied was that the same text would be used unless there was reason for changing it inherent in the differences
between international and non-international armed conflicts.”); XI OFFICIAL RECORDS OF THE CDDH 248(CDDH/II/SR.25, ¶¶16-18) (“Mr. IJAS (Indonesia) said that his delegation understood the concern of those who
objected to draft Protocol II on the grounds that some of its provisions interfered in the internal affairs of States andwere contrary to the principle of national sovereignty. … The provisions of Part III of draft Protocol II should not
reproduce automatically those of the corresponding part of draft Protocol I, since they are concerned with different
type of armed conflict. For example, article 16, paragraph 3 could give rise to serious problems if it was left as itstood.”); XIV OFFICIAL RECORDS OF THE CDDH 312 (CDDH/III/SR.32, ¶15) (“Mr. WOLFE (Canada), referring to
his delegation’s amendment (CDDH/III/221), said that he thought it was dangerous to try to introduce in draft
Protocol II a notion of perfidy which was only valid in international conflicts and very difficult to apply in internal
conflicts.”).
54

Refer to § 8.1.4.4 (Analogous GPW and GC Provisions).

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internment of protected persons in occupied territory. 55
17.2.2.4 Application of Law Enforcement Rules. The law applicable to noninternational armed conflict generally has been crafted to reflect baseline rules that States respecteven in addressing common criminals. 56 Thus, if an action would be permissible under thedomestic law enforcement rules of many States, it likely would be permissible as a matter ofcustomary international law during non-international armed conflict.
17.2.3 Application of Humanitarian Rules and the Legal Status of the Parties to theConflict. The application of humanitarian rules to enemy non-State armed groups does not affectthe legal status of such groups. 57 For example, a State’s decision to apply humanitarian rules inmilitary operations against a non-State armed group would not constitute an implicit recognitionof a government that such an armed group has purported to establish nor an implicit recognitionof the legitimacy of the armed group’s cause. Such application also would not implicitly provide
the members of the armed group with any legal immunity from prosecution.
The principle that the application of humanitarian rules to an armed group does not affectthe legal status of that armed group has been recognized in a number of treaties. For example, by
its express terms, the application of Common Article 3 of the 1949 Geneva Conventions shall notaffect the legal status of the parties to the conflict. 58 Also by express treaty terms, theapplication of the provisions of the CCW and its annexed Protocols to parties to a conflict thatare not High Contracting Parties that have accepted the CCW or its annexed Protocols shall notchange their legal status or the legal status of a disputed territory, either explicitly or implicitly. 59
Further, by the express terms of the 1954 Hague Cultural Property Convention, its provisions
that relate to non-international armed conflict shall not affect the legal status of the parties to the55

Refer to § 17.17.1.1 (Non-Punitive Detention in Non-International Armed Conflict).

56

See, e.g., GWS COMMENTARY 50 (“What Government would dare to claim before the world, in a case of civil
disturbances which could justly be described as mere acts of banditry, that, Article 3 not being applicable, it wasentitled to leave the wounded uncared for, to inflict torture and mutilations and to take hostages? However useful,
therefore, the various conditions stated above may be, they are not indispensable, since no Government can object torespecting, in its dealings with internal enemies, whatever the nature of the conflict between it and them, a few
essential rules which it in fact respects daily, under its own laws, even when dealing with common criminals.”).
57

See LIEBER CODE art. 152 (“When humanity induces the adoption of the rules of regular war toward rebels,
whether the adoption is partial or entire, it does in no way whatever imply a partial or complete acknowledgement of
their government, if they have set up one, or of them, as an independent and sovereign power. Neutrals have noright to make the adoption of the rules of war by the assailed government toward rebels the ground of their own
acknowledgment of the revolted people as an independent power.”).
58

GWS art. 3 (“The application of the preceding provisions [in Article 3] shall not affect the legal status of theParties to the conflict.”); GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3 (same).
59

CCW AMENDED art. 1(6) (“The application of the provisions of this Convention and its annexed Protocols toparties to a conflict which are not High Contracting Parties that have accepted this Convention or its annexed
Protocols, shall not change their legal status or the legal status of a disputed territory, either explicitly or
implicitly.”); CCW AMENDED MINES PROTOCOL art. 1(6) (“The application of the provisions of this Protocol toparties to a conflict, which are not High Contracting Parties that have accepted this Protocol, shall not change theirlegal status or the legal status of a disputed territory, either explicitly or implicitly.”); CCW AMENDED MINESPROTOCOL art. 12(1)(b) (“The application of the provisions of this Article to parties to a conflict which are not HighContracting Parties shall not change their legal status or the legal status of a disputed territory, either explicitly or
implicitly.”).

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conflict. 60
17.2.4 Binding Force of the Law of War on Insurgents and Other Non-State Armed
Groups. The law of war applicable in a non-international armed conflict is binding upon allparties to the armed conflict, including State armed forces and non-State armed groups. A
variety of explanations have been offered for this principle.
Customary law of war rules are binding on a State, even if it is not a Party to a treaty
containing the rule. 61 Similarly, customary law of war rules are binding on those parties to thearmed conflict that intend to make war and to claim the rights of a belligerent, even if they are
not States. 62
Treaty provisions that address non-international armed conflict provide that they apply
not only to the State, but to each party to the conflict. 63 In many cases, these treaty provisions
would also be binding on non-State armed groups as a matter of customary international law. 64
As a practical matter, non-State armed groups would often be bound by their State’s
treaty obligations due to the very fact that the leaders of those non-State armed groups would

60

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 19(4) (“The application of the preceding provisions shall notaffect the legal status of the parties to the conflict.”).
61

Refer to § 1.8 (Customary International Law).

62

See Trial of Henry Wirz, Argument of the Judge Advocate (Special Military Commission, Washington D.C., Oct.
20, 1865), reprinted in 40th Congress, House Executive Document No. 23, A Congressionally Mandated Report
Summarizing the Military Commission’s Proceedings, 722, 764 (Dec. 7, 1867) (“Whatever the form of government
may have been to which the leaders of the confederacy, so-called, aspired; whatever of wrong and injustice they
sought to embody in their system; with whatever of oppression and tyranny they sought to grind down their subjects,
the moment they asked a place among nations they were bound to recognize and obey those laws international
which are and of necessity must be applicable alike to all.”); Chacon v. Eighty-Nine Bales of Cochineal, 5 F. Cas.
390, 394 (C.C.D. Va. 1821) (Marshall, C.J.) (whether an entity “be a state or not, if she is in a condition to makewar, and to claim the character and rights of a belligerent, she is bound to respect the laws of war;”). Refer to§ 3.4.1.2 (Non-State Armed Groups With the Intention of Conducting Hostilities).

63

See, e.g., GWS art. 3 (“In the case of armed conflict not of an international character occurring in the territory of
one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, … .”); 1954
HAGUE CULTURAL PROPERTY CONVENTION ART. 19(1) (“In the event of an armed conflict not of an international
character occurring within the territory of one of the High Contracting Parties, each party to the conflict shall bebound to apply, as a minimum, the provisions of the present Convention which relate to respect for culturalproperty.”); CCW AMENDED MINES PROTOCOL art. 1(3) (“In case of armed conflicts not of an international
character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be boundto apply the prohibitions and restrictions of this Protocol.”); CCW AMENDED art. 1(3) (“In case of armed conflicts
not of an international character occurring in the territory of one of the High Contracting Parties, each party to theconflict shall be bound to apply the prohibitions and restrictions of this Convention and its annexed Protocols.”).
64

Special Court for Sierra Leone Appeals Chamber, Decision on Challenge to Jurisdiction: Lomé Accord Amnesty,
SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E), ¶47 (Mar. 13, 2004) (“It suffices to say, for the purpose of thepresent case, that no one has suggested that insurgents are bound because they have been vested with personality ininternational law of such a nature as to make it impossible for them to be a party to the Geneva Conventions.
Rather, a convincing theory is that they are bound as a matter of international customary law to observe theobligations by common Article 3 which is aimed at the protection of humanity.”).

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claim to be the State’s legitimate representatives. 65 Other practical considerations, such as thedesire to be seen as legitimate, may also contribute to their compliance with the law of war. 66
17.3 SPECIAL AGREEMENTS BETWEEN PARTIES TO THE CONFLICT
Parties to a conflict may enter into agreements to bring into force law of war rules. 67 For
example, pursuant to Common Article 3 of the 1949 Geneva Conventions, the parties to theconflict should further endeavor to bring into force, by means of special agreements, all or partof the other provisions of the 1949 Geneva Conventions. 68 Similarly, pursuant to the 195465

GWS COMMENTARY 51-52 (“On the other hand, what justification is there for the obligation on the adverse Partyin revolt against the established authority? At the Diplomatic Conference doubt was expressed as to whether
insurgents could be legally bound by a Convention which they had not themselves signed. But if the responsible
authority at their head exercises effective sovereignty, it is bound by the very fact that it claims to represent thecountry, or part of the country. The ‘authority’ in question can only free itself from its obligations under theConvention by following the procedure for denunciation laid down in Article 63. But the denunciation would not bevalid, and could not in point of fact be effected, unless the denouncing authority was recognized internationally as acompetent Government. It should, moreover, be noted that under Article 63 denunciation does not take effectimmediately.”).

66

GWS COMMENTARY 52 (“If an insurgent party applies Article 3, so much the better for the victims of the conflict.
No one will complain. If it does not apply it, it will prove that those who regard its actions as mere acts of anarchyor brigandage are right.”). Refer to § 18.2 (Prudential Reasons Supporting the Implementation and Enforcement of
the Law of War).

67

For example, Letter from James Robertson to George Washington (May 1, 1782) (“Sir, A Commission from theKing appointing me Commander in Chief of his forces in this country having arrived by a late conveyance, I make it
one of my first cares, to convince you of my wish to carry on the war agreeable to the rules which humanity formed,
and the example of the politest nations recommended. I make this declaration of my resolution, in hope that I may
find a similar inclination in you. To effect this, let us agree to prevent or punish every breach of the rules of war
within the spheres of our command.”) and, Letter from George Washington to James Robertson (May 5, 1782)(“Sincerely lamenting the cruel necessity, which alone can induce so distressing a measure in the present instance, I
do assure your Excellency, I am as earnestly desirous as you can be, that the war may be carried on agreeable to therules which humanity formed, and the example of the politest nations recommends, and shall be extremely happy inagreeing with you to prevent or punish every breach of the rules of war within the sphere of our respective
commands.”), reprinted in THE REMEMBRANCER; OR, IMPARTIAL REPOSITORY OF PUBLIC EVENTS FOR THE YEAR
1782, PART II, 156-57.
68

GWS art. 3 (“The Parties to the conflict should further endeavour to bring into force, by means of special
agreements, all or part of the other provisions of the present Convention.”); GWS-SEA art. 3 (same); GPW art. 3(same); GC art. 3 (same). For example, Bosnia and Herzegovina, Agreement No. 1 of May 22, 1992, reprinted in
Marco Sassòli, Antoine A. Bouvier, Anne Quintin, III How Does Law Protect In War? Cases and Documents, CaseNo. 204: Former Yugoslavia, Special Agreements Between Parties to the Conflicts, 116-17 ¶2 (Mar. 2011) (“Inaccordance with the Article 3 of the four Geneva Conventions of August 12, 1949, the Parties agree to bring into
force the following provisions … . Captured combatants shall enjoy the treatment provided for by the Third Geneva
Convention.”); U.N. COMMISSION ON HUMAN RIGHTS, Report on the situation of human rights in Afghanistan
prepared by the Special Rapporteur, Mr. Felix Ermacora, in accordance with Commission on Human Rights
resolution 1984/55, U.N. Doc. E/CN.4/1985/21, 28-29 ¶104 (Feb. 19, 1985) (“Apparently in 1982 an agreement on
conditions for the internment of foreign prisoners was signed between the Afghan resistance movement and theInternational Committee of the Red Cross (ICRC) under which the resistance expressed its intention to respect thespirit of the provisions of the Geneva Convention relative to the Treatment of Prisoners of War. This involves theapplication of article 3 of the Geneva Conventions under which the parties to armed conflict can conclude
agreements or make statements specifying that they will apply all or part of the other provisions of the Conventions.
Analysing this agreement as calculated to set an example for better treatment of prisoners of war, witnesses statedthat since then the resistance movements had endeavoured to ensure that foreign prisoners were not tortured orassassinated.”).

1040

Hague Cultural Property Convention, the parties to the conflict shall endeavor to bring into force,by means of special agreements, all or part of the other provisions of that Convention. 69
Parties to a non-international armed conflict may wish to conclude agreements on theseand a variety of other subjects, such as:•

temporary ceasefire agreements to collect the wounded;•

agreements to permit passage of medical or other relief supplies for the civilian
population;•agreements for the accommodation of detainees in other States; 70•

agreements to establish hospital or safety zones;•

agreements for the cessation of hostilities; and•agreements for post-conflict clearance of remnants of war. 71

17.3.1 Communications Between Parties to the Conflict. The procedures that are used
for non-hostile relations between belligerents during international armed conflict may also be
applied by parties to a non-international armed conflict. 72
As is the case during international armed conflict, parties to a non-international armed
conflict may agree to specific means of communication between them.
17.4 A STATE’S USE OF ITS DOMESTIC LAW AND NIAC
17.4.1 Ability of a State to Use Its Domestic Law Against Non-State Armed Groups. A
fundamental principle of the international legal order is the sovereign equality of States, which
69

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 19(2) (“The parties to the Conflict shall endeavour to bring
into force, by means of special agreements, all or part of the other provisions of the present Convention.”).
70

For example, International Committee of the Red Cross, External Activities: Africa—Latin American—Asia—
Middle East—Europe, 24 INTERNATIONAL REVIEW OF THE RED CROSS 230, 239-40 (Jul.-Aug. 1984) (“Negotiations
carried out by the ICRC with, successively, the USSR, the Afghan opposition movement, Pakistan and Switzerland
led to partial success. The parties agreed to the transfer and internment in a neutral country of Soviet soldiers
detained by the Afghan opposition movements, in application, by analogy, of the Third Geneva Convention, relative
to the treatment of prisoners of war. On the basis of this agreement, the ICRC has had access to some of the Soviet
prisoners in the hands of the Afghan movements and has informed them, in the course of interviews without witness,of the possibility for transfer by the ICRC to Switzerland, where they would spend two years under the
responsibility and watch of the Swiss government before returning to their country of origin. … To date, eleven
Soviet soldiers have accepted the proposal. The first three were transferred to Switzerland on 28 May 1982. Eightothers arrived in August and October 1982, January and October 1983, and February and April 1984. One of themescaped to the Federal Republic of Germany in July 1983.”).
71

Refer to § 6.20.5 (Obligations Under the CCW Protocol V on Explosive Remnants of War That Are Triggered by
the Cessation of Active Hostilities).
72

Refer to § 12.3 (Methods for Communication Between Belligerents).

1041

generally prohibits States from exercising sovereignty over one another. 73 However, theprinciple of the sovereign equality of States is not applicable in armed conflicts between a Stateand a non-State armed group. A State may exercise both sovereign and belligerent rights overnon-State armed groups. 74 This means that a State may use not only its war powers to combat
non-State armed groups, but it may also use its domestic law, including its ordinary criminal law,
to combat non-State armed groups.
The limits imposed by international law on a State’s action against non-State armed
groups do not alter the basic principle that the State may exercise its sovereign powers against
the non-State armed group. 75
17.4.1.1 A State’s Power to Prosecute Hostile Activities. An importantconsequence of the fact that States may exercise sovereignty over persons belonging to a nonState armed group is that a State may prosecute individuals for participating in hostilities against
it. Such conduct frequently constitutes crimes under ordinary criminal law (e.g., murder, assault,
illegal destruction of property).
Although, during international armed conflict, lawful combatants are afforded certain
immunities from the enemy State’s jurisdiction, 76 persons belonging to non-State armed groups
lack any legal privilege or immunity from prosecution by a State that is engaged in hostilities
against that group.
On the other hand, the non-State armed group lacks authority to prosecute members of
the State armed forces. In addition, the non-State status of the armed group would not render
inapplicable the privileges and immunities afforded lawful combatants and other State officials.
Thus, for example, members of the armed forces of a State would continue to benefit from any
privileges or immunities from the jurisdiction of foreign States that sought to exercise
jurisdiction with respect to the actions of such State armed forces in a non-international armed
conflict. 77

73

See Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, 2012 I.C.J. 99, 123(¶57) (“The Court considers that the rule of State immunity occupies an important place in international law andinternational relations. It derives from the principle of sovereign equality of States, which, as Article 2, paragraph 1,of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal
order.”).
74

The Prize Cases, 67 U.S. 635, 673 (1863) (“Now, it is a proposition never doubted, that the belligerent party who
claims to be sovereign, may exercise both belligerent and sovereign rights, … .”).
75

CCW AMENDED art. 1(4) (“Nothing in this Convention or its annexed Protocols shall be invoked for the purposeof affecting the sovereignty of a State or the responsibility of the Government, by all legitimate means, to maintainor re-establish law and order in the State or to defend the national unity and territorial integrity of the State.”).
Consider AP II art. 3(1) (“Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of aState or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in
the State or to defend the national unity and territorial integrity of the State.”).

76

Refer to § 4.4.3 (Combatants - Legal Immunity From a Foreign State’s Domestic Law).

77

For example, Daniel Webster, Letter to Mr. Fox, Apr. 24, 1841, reprinted in THE DIPLOMATIC AND OFFICIALPAPERS OF DANIEL WEBSTER, WHILE SECRETARY OF STATE 124 (1848) (“This doubt has occasioned the President
some hesitation; but he inclines to take it for granted that the main purpose of the instruction was, to cause it to be1042

17.4.1.2 Range of Activities Subject to Prosecution. A State may also use its
domestic law to make punishable a wide range of activity that extend beyond the activities that
constitute actual fighting against the State. For example, joining the non-State armed group,
providing material support to the armed group, failing to report the treasonous activities of thearmed group, and other conduct may be punishable under a State’s domestic law. 78
17.4.1.3 Other Sovereign Authorities. In addition to the power to criminalize
certain conduct, a State may use its law and other regulatory powers in its effort to address thethreat of non-State armed groups.
For example, the State could use its authority to tax, regulate, seize, or destroy property(e.g., weapons, vehicles, food, and medical equipment) within its jurisdiction as part of its effort
against the non-State armed group. 79 The use of these sovereign powers would be subject todomestic law restrictions, and might not depend on whether such action would be imperatively
required by the necessities of war – the standard for the seizure of destruction of enemy property
during international armed conflict. 80 In any event, however, it would not be permissible for theState to seek to starve civilians as a method of combat. 81
17.4.2 Emergency Laws and Regulations. Many States have laws permitting thegovernment to alter or suspend laws (such as a declaration of martial law, and the establishmentof curfews and other controls on the movement of persons and traffic), to enact emergency
regulations (such as the establishment of monetary or trade regulations, or the rationing of food,
fuel, and other critical materials), and to take other steps to protect the public (such as theissuance of identification cards, the development of detention rules for members of non-Statesignified to the government of the United States that the attack upon the steamboat ‘Caroline’ was an act of publicforce, done by the British colonial authorities [intended to address insurgents], and fully recognized by the queen’s
government at home; and that, consequently, no individual concerned in that transaction can, according to the justprinciples of the laws of nations, be held personally answerable in the ordinary courts of law as for a private offense;
and that upon this avowal of her majesty’s government, Alexander McLeod, now imprisoned on an indictment for
murder alleged to have committed in that attack, ought to be released by such proceedings as are usual and aresuitable to the case.”).
78

For example, 18 U.S.C. § 2339B(a)(1) (“Whoever knowingly provides material support or resources to a foreign
terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15
years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To
violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (asdefined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in section
212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism(as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).”); 18
U.S.C. § 2382 (“Whoever, owing allegiance to the United States and having knowledge of the commission of any
treason against them, conceals and does not, as soon as may be, disclose and make known the same to the President
or to some judge of the United States, or to the governor or to some judge or justice of a particular State, is guilty ofmisprision of treason and shall be fined under this title or imprisoned not more than seven years, or both.”).
79

For example, DEPARTMENT OF THE ARMY FIELD MANUAL 3-24.2, Tactics in Counterinsurgency, ¶3-170 (Apr.
2009) (“Resource control measures include control of select resources to include foodstuffs, medical supplies, andkey equipment through: • Rationing or purchase permits • Registration of firearms. • Registration of automobiles
and trucks. • Export and import restrictions.”).

80

Refer to § 5.17.2 (Enemy Property – Military Necessity Standard).

81

Refer to § 17.9.2 (Prohibition on Starvation of Civilians as a Method of Combat).

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armed groups, and the establishment of special emergency courts). 82
The full range of actions that a State may take under its domestic law during noninternational armed conflict would depend on the content of that law, including applicable
constitutional restrictions. 83
17.4.3 Special Courts. As part of its emergency regulations, a State may establish special
or emergency courts for cases involving unprivileged belligerents or other persons suspected ofcommitting offenses related to the non-international armed conflict.
Such courts must be regularly constituted and afford all the judicial guarantees that arerecognized as indispensable by civilized peoples. 84 Such courts may distinguish based onnationality. 85 The procedures of such courts may deviate from those applicable during ordinary82

For example, David Galula, Pacification in Algeria, 1956-1958, 21 (RAND Corporation, 2006) (“In the existing
legal framework, proclamation of martial law was the only provision in case of disturbances endangering thesecurity of the state. It would have entailed handing over all powers to the military authority and suspending private
and public liberties. Government and Parliament considered this step too extreme. Hence they devised a newcontingency, the so-called ‘state of emergency,’ which was declared for the first time for the Constantine area andfor Kabylia in April 1955, and was extended to all Algeria in August 1955. Parliament voted a Special Powers Act(with the support of the Communists!), which gave the government a free hand for conducting its policy in Algeria
by decree, notably in matters pertaining to economic development, economic and social reforms, territorial
reorganization, public order, security of persons and property, and protection of the integrity of the territory. These
special powers were vested in the existing government and would lapse with the end of its incumbency; thesucceeding government would have to request an extension from the Parliament. The government in turn gave
authority to the Minister-Resident (who by then had replaced the Governor General in Algiers) to regulate
movements of persons and goods, assign places of residence, create forbidden zones, order searches, ban meetings,
control the press, dissolve associations, collect reparations for willful damage and for aid given to the rebels,suspend or transfer civil servants, deprive elected representatives of their seats, postpone by-elections, and delegate
certain civil powers to the military. Travel between France and Algeria was made subject to strict control (at least intheory).”); FRANK KITSON, GANGS AND COUNTER-GANGS 44 (1960) (“The legal code in Kenya in October 1952 was
not very different from that in England. Certain acts such as theft or murder were illegal and if you committed them
you were prosecuted. When the Emergency started some extra laws were made to fit the special circumstances. For
example, it became illegal to administer the Mau Mau oath or to carry arms and certain areas of the forest wereplaced out of bounds. These extra laws, and there were many of them, were known as Emergency Regulations.”).
83

For example, FRANK KITSON, GANGS AND COUNTER-GANGS 289 (1960) (“No country which relies on the law of
the land to regulate the lives of its citizens can afford to see that law flouted by its own government, even in an
insurgency situation. In other words everything done by a government and its agents in combating insurgency mustbe legal. But this does not mean that the government must work within exactly the same set of laws during an
insurgency as existed beforehand, because it is a function of a government when necessary. It does not mean thatthe law must be administered in exactly the same way during an uprising as it was in more peaceful times, because
once again a government has the power to modify the way in which the law is administered if necessary, for the
wellbeing of the people, although the exercise of such power is usually – and rightly – subject to considerable
constitutional restraint.”).
84

Refer to § 8.16 (Criminal Procedure and Punishment).

85

For example, 10 U.S.C. § 948b (“(a) Purpose. –This chapter establishes procedures governing the use of militarycommissions to try alien unprivileged enemy belligerents for violations of the law of war and other offenses triable
by military commission.”) (emphasis added).

1044

proceedings, but deviations should be warranted by practical need. 86
17.4.4 Reintegration Programs and Amnesty. States have used reconciliation andreintegration programs during hostilities as alternatives to prosecution to seek to de-radicalize
and rehabilitate violent extremists. 87
Although amnesty is normally left to the discretion of the State, AP II provides that, atthe end of hostilities, the authorities in power shall endeavor to grant the broadest possible
amnesty to persons who have participated in the armed conflict, or those deprived of their liberty
for reasons related to the armed conflict, whether they are interned or detained. 88
17.5 PRINCIPLE OF DISTINCTION IN NIAC
As discussed below, the principle of distinction applies during non-international armed
conflict. It may be important to note certain differences between the situations that typicallyarise in non-international armed conflict as compared to those typically arising in internationalarmed conflict.
86

See Hamdan v. Rumsfeld, 548 U.S. 557, 632-33 (2006) (“The Government offers only a cursory defense of
Hamdan's military commission in light of Common Article 3. As Justice Kennedy explains, that defense fails
because ‘[t]he regular military courts in our system are the courts-martial established by congressional statutes.’ Ata minimum, a military commission ‘can be ‘regularly constituted’ by the standards of our military justice system
only if some practical need explains deviations from court-martial practice.’ As we have explained, no such needhas been demonstrated here.”) (internal citations omitted); id. at 645-46 (Kennedy, J., concurring) (“At a minimum a
military commission like the one at issue--a commission specially convened by the President to try specific persons
without express congressional authorization--can be ‘regularly constituted’ by the standards of our military justicesystem only if some practical need explains deviations from court-martial practice. … Relevant concerns, as noted
earlier, relate to logistical constraints, accommodation of witnesses, security of the proceedings, and the like, notmere expedience or convenience. This determination, of course, must be made with due regard for the constitutional
principle that congressional statutes can be controlling, including the congressional direction that the law of war hasa bearing on the determination.”).
87

For example, Charles A. Allen, Deputy General Counsel, Department of Defense, Alternatives to Prosecution for
War Crimes in the War on Terrorism, 17 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS 121, 131-34 (2008)(“In Pakistan, there is a reintegration program akin to the idea of ‘it takes a village.’ Village loyalties areparamount, and Pakistani leaders have found that returning a former combatant to his village and holding the village
responsible for his conduct is a successful way to ensure that the person does not return to violence. Under thisprogram, a village must agree to accept the return of the person and must pay the Government of Pakistan a‘retainer’ equal to about $5000 that it forfeits if the individual returns to hostilities. … The Kingdom of Saudi
Arabia uses a similar program, referred to as a ‘counseling program,’ to ‘de-radicalize’ and reintegrate former
security prisoners back into society. … Prisoners who have not committed capital crimes or killings enter the
program immediately after they are captured. Upon release, the former prisoners are then reconnected with theirfamilies and given psychological evaluation and counseling. After a few months of rehabilitation, they are brought
into contact with moderate Islamic scholars and encouraged to enter into discussions about their beliefs. The
moderate scholars are able to counter extremist views with the Koran and other authoritative texts to explain
alternative interpretations that the former prisoner may not have heard before. Along with the counseling program,the Saudis try to convince the former combatants that they have a stake in a peaceful and stable government byencouraging them to marry, paying for their weddings and subsequent education for their children, and helping themto find suitable employment and housing.”).
88

Consider AP II art. 6(5) (“At the end of hostilities, the authorities in power shall endeavour to grant the broadest
possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty forreasons related to the armed conflict, whether they are interned or detained.”).

1045

17.5.1 Discrimination in Conducting Attacks Against the Enemy in NIAC. Parties to aconflict must conduct attacks in accordance with the principle of distinction. 89
As during international armed conflict, an adversary’s failure to distinguish its forcesfrom the civilian population does not relieve the attacking party of its obligations to discriminate
in conducting attacks. 90 On the other hand – also as during international armed conflict – suchconduct by the adversary does not increase the legal obligations on the attacking party todiscriminate in conducting attacks against the enemy. For example, even though tactics used by
non-State armed groups may make discriminating more difficult, State armed forces – thoughobligated to be discriminate – are not required to take additional protective measures tocompensate for such tactics.
17.5.1.1 Increased Difficulty in Identifying Enemy Forces and Other Military
Objectives. During international armed conflict, State armed forces generally are readily
distinguishable from the civilian population. Traditionally, conventional armed forces would
often confront one another, with the civilian population of each opposing State remaining to therear of the lines separating their respective military forces. 91 During non-international armed
conflict, however, discriminating in conducting attacks against the enemy may be more difficult
because non-State armed groups often seek to blend in with the civilian population. 92
17.5.1.2 Different Support Structures for Non-State Armed Groups. In addition to
non-State armed groups, other military objectives may also be more difficult to identify because
non-State armed groups often do not use military infrastructure (e.g., military bases, logistics
facilities) to conduct and sustain their operations. Rather, non-State armed groups may seek touse ostensibly civilian buildings and resources to conduct and sustain their operations. Denying
non-State armed groups such support may be particularly important to the success of military
operations and justifiable under the law of war. 93
89

Refer to § 17.7 (Rules on Conducting Attacks in NIAC).

90

Refer to § 5.4.4 (Failure by the Defender to Separate or Distinguish Does Not Relieve the Attacker of the Duty to
Discriminate in Conducting Attacks).
91

For example, SYLVIE-STOYANKA JUNOD, INTERNATIONAL COMMITTEE OF THE RED CROSS, PROTECTION OF THE
VICTIMS OF ARMED CONFLICT FALKLAND-MALVINAS ISLANDS: INTERNATIONAL HUMANITARIAN LAW AND
HUMANITARIAN ACTION (1982) 26 (1984) (“The Falkland-Malvinas Islands' conflict provides a rare example ofhostilities conducted by both sides with particular concern for the safety of the civilian population, as there were
three civilian casualties. The instructions received both by the Argentine armed forces when disembarking on theisland of South Georgia and on the archipelago, and by the British pilots and soldiers emanated from the desire torespect the civilian population. However, mention must also be made of the precautionary measures which weretaken by the Parties to the civilian population in accordance with Part II of the Fourth Convention.”).
92

For example, Harold Hongju Koh, Legal Adviser, Department of State, Address at the Annual Meeting of theAmerican Society of International Law: The Obama Administration and International Law, Mar. 25, 2010, 2010
DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 717 (“As recent events have shown, al-Qaeda has notabandoned its intent to attack the United States, and indeed continues to attack us. … As you know, this is a conflictwith an organized terrorist enemy that does not have conventional forces, but that plans and executes its attacks
against us and our allies while hiding among civilian populations. That behavior simultaneously makes theapplication of international law more difficult and more critical for the protection of innocent civilians.”).
93

Christopher Paul, Colin P. Clarke, and Beth Grill, Victory Has a Thousand Fathers: Sources of Success inCounterinsurgency, 98 (RAND Corporation, 2010) (“The ability of insurgents to replenish and obtain personnel,1046

17.5.1.3 Increased Strategic Importance of Minimizing Incidental Civilian
Casualties. For various reasons, there may be an increased emphasis by State armed forces onminimizing the risk of incidental civilian casualties, even beyond the requirements of the law ofwar.
The sympathy and support of the civilian population are frequently important objectives
in non-international armed conflict. 94 In order to ensure such support, commanders and theirforces may operate under rules of engagement that are more restrictive than what the law of war
requires. 95
17.5.2 Distinguishing State Forces From the Civilian Population in NIAC. During noninternational armed conflict, as during international armed conflict, the principle of distinction
prohibits the use of protected persons or objects to shield, favor, or impede military operations. 96
However, it may be important to consider certain differences in the circumstances arising in nonmateriel, financing, intelligence, and sanctuary (tangible support) perfectly predicts success or failure in the 30
COIN cases considered here. In all eight cases in which the COIN force prevailed, it also disrupted at least three
insurgent support factors, while none of the COIN forces in the 22 losing cases managed to disrupt more thantwo.”); Robert Wayne Gehring, Protection of Civilian Infrastructures, 42 LAW AND CONTEMPORARY PROBLEMS 86,
95 (1978) (“The importance of those who collect funds for the insurgent organization’s operations, gather andanalyze information about government forces, procure the necessary supplies from within or without the country,
organize the delivery of the supplies to the military forces of the insurgency, and organize the recruitment ofmembers of the local population cannot be overestimated. While these functions may be performed by military
members of the movement, in many cases military training is not required or is not even an asset in theirperformance. One experienced observer, Sir Robert Thompson, believes that so long as the supporting organization
remains intact, killing insurgents in the field is largely useless: the casualties will be replaced by new recruits. A
study of characteristics that determined the outcome in forty-four revolutions of this century found the single mostimportant factor was not battlefield success but whether the government was successful in interdicting theinsurgents’ supply of arms and ammunition. The government cannot rely upon success on the field of battle to bringits ultimate victory. It must starve the insurgent military forces by uncovering and neutralizing the civilian
infrastructure supporting those military forces.”).
94

FRANK KITSON, BUNCH OF FIVE 59, 282, 289 (1977) (“The first aim of a government in an Emergency is to retainor regain the allegiance of the population. […] There has never been much doubt that the main characteristic which
distinguishes campaigns of insurgency from other forms of war is that they are primarily concerned with the struggle
for men’s minds, since only by succeeding in such a struggle with a large enough number of people can the rule oflaw be undermined and constitutional institutions overthrown.”).

95
For example, General Petraeus, Unclassified Excerpts from Tactical Directive, Aug. 1, 2010, reprinted inInternational Security Assistance Force – Afghanistan, Headquarters, General Petraeus Issues Updated Tactical
Directive: Emphasizes “Disciplined Use of Force,” Aug. 4, 2010 (“We must continue – indeed, redouble – ourefforts to reduce the loss of innocent civilian life to an absolute minimum. Every Afghan civilian death diminishes
our cause. If we use excessive force or operate contrary to our counterinsurgency principles, tactical victories may
prove to be strategic setbacks. We must never forget that the center of gravity in this struggle is the Afghan people;
it is they who will ultimately determine the future of Afghanistan ... Prior to the use of fires, the commander
approving the strike must determine that no civilians are present. If unable to assess the risk of civilian presence,fires are prohibited, except under of the following two conditions (specific conditions deleted due to operational
security; however, they have to do with the risk to ISAF and Afghan forces). (NOTE) This directive, as with theprevious version, does not prevent commanders from protecting the lives of their men and women as a matter ofself-defense where it is determined no other options are available to effectively counter the threat.).”) (ellipsis inoriginal).
96

Refer to § 17.6.3 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military
Operations).

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international armed conflict.
17.5.2.1 Positioning Military Forces Near the Civilian Population to Win Their
Support and to Protect Them. During non-international armed conflict, insurgents or terrorists
may seek to attack the civilian population, and the use of the State’s forces to protect the civilian
population from such attacks may be a key objective of State operations in non-internationalarmed conflict. 97 Thus, positioning military forces near the civilian population may be essential
to the protection of the civilian population, and States have not interpreted such practices to beinconsistent with the principle of distinction. 98
17.5.2.2 Role of Civilian Personnel, Including Law Enforcement Personnel, in
Addressing Non-State Armed Groups. Members of States’ civilian agencies, such as judges,
prosecutors, and police and other members of its law enforcement apparatus, often play a criticalrole in addressing non-State armed groups. 99 Although such personnel might be viewed by theadversary as “military objectives” or as taking a direct part in hostilities, States have notinterpreted the principle of distinction to require the separation of such personnel from thecivilian population in non-international armed conflict.
17.6 RESPECT AND HUMANE TREATMENT OF PERSONS TAKING NO ACTIVE PART IN HOSTILITIESIN NIAC
All persons who do not take a direct part or who have ceased to take part in hostilities,
whether or not their liberty has been restricted, are entitled to respect for their person, honor andconvictions, and religious practices. They shall in all circumstances be treated humanely,97

For example, General David Petraeus, Multi-National Force – Iraq Counterinsurgency Guidance, 1 (Jun. 13,
2007) (“1. Secure the people where they sleep. Population security is our primary mission. And achieving
population security promises to be an extremely long-term endeavor – a marathon, not a sprint – so focusing on thismission now is essential. Most extra-judicial killings occur at night and in people’s homes, while most spectacularterrorist attacks occur during the day, where people shop, work and play – anywhere they gather publicly. These
key areas must be secured. Once secured, an area cannot be abandoned; it must be permanently controlled andprotected, 24 hours a day, or else the enemy will re-infiltrate and kill or intimidate those who have supported us.
This protection must be kept up until the area can be effectively garrisoned and controlled by Iraqi police (ideallyfrom the area being secured) and other security services. We can’t be everywhere – therefore you must assess your
AOR, identify priority areas, work to secure them first, and then expand into other areas.”).
98

For example, General David Petraeus, International Security Assistance Force/United States Forces-Afghanistan
Headquarters, COMISAF’s Counterinsurgency Guidance, 1 (Aug. 1, 2010) (“Live among the people. We can’t
commute to the fight. Position joint bases and combat outposts as close to those we're seeking to secure as is
feasible. Decide on locations with input from our partners and after consultation with local citizens and informed byintelligence and security assessments.”).
99

For example, A.H. Peterson, G.C. Reinhardt and E.E. Conger, Symposium on the Role of Airpower inCounterinsurgency and Unconventional Warfare: The Malayan Emergency, 13 (RAND Corporation, Jul. 1963)(“COMMODORE GARRISSON: This Malayan campaign was run basically as a civilian operation by the civilian
power. The first line of defense was the civilian Police, who received more equipment than the normal police. Any
military operation had to be cleared with the civilian authority, who in effect called for military operations of a
specific nature. I think this is the first thing to bear in mind. Police provided protection of the local population
wherever possible. The true military forces went out to try to get the bandits.”).

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without any adverse distinction. 100
In addition, the following prohibitions apply:
17.6.1 Prohibition on Declaring That No Quarter Be Given. It is prohibited to order that
there shall be no survivors. 101
17.6.2 Prohibition on the Taking of Hostages. The taking of hostages is prohibited. 102
17.6.3 Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede
Military Operations. It is prohibited to use civilians, persons placed hors de combat, or otherprotected persons to shield, favor, or impede military operations. 103
17.6.4 Prohibition on Pillage. Pillage is prohibited. 104 There is an affirmative obligation
to take measures to protect the wounded, sick, and shipwrecked from pillage, and the dead frombeing despoiled. 105
17.6.5 Prohibition on Acts of Terrorism. It is prohibited to commit, or threaten tocommit, acts of terrorism against persons who do not take a direct part or who have ceased totake part in hostilities. 106
17.6.6 Prohibition on Offering of Rewards for Persons Dead or Alive. As during
international armed conflict, it is prohibited to offer a reward for enemy persons to be turned
over dead or alive. 107 On the other hand, as in international armed conflict, there is no
prohibition against offering rewards for the apprehension of insurgents or for giving information

100

Consider AP II art. 4(1) (“All persons who do not take a direct part or who have ceased to take part in hostilities,
whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions andreligious practices. They shall in all circumstances be treated humanely, without any adverse distinction.”).
101

Consider AP II art. 4(1) (“It is prohibited to order that there shall be no survivors.”). Refer to § 5.4.7 (Prohibition
Against Declaring That No Quarter Be Given).
102

See GWS art. 3 (prohibiting “taking of hostages;”); GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3(same). Consider AP II art. 2 (prohibiting “taking of hostages;”). Refer to § 5.16.3 (Prohibition on Taking
Hostages).
103

Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military
Operations).
104

Consider AP II art. 4(2)(g) (prohibiting pillage “at any time and in any place whatsoever” against “[a]ll persons
who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been
restricted”). Refer to § 5.17.4 (Pillage Prohibited).
105

Refer to § 17.14.3 (Search, Collection, and Protection of the Wounded, Sick, Shipwrecked, and Dead).

106

Consider AP II art. 4(2) (prohibiting with respect to all persons who do not take a direct part or who have ceased
to take part in hostilities, whether or not their liberty has been restricted, “d) acts of terrorism” and “h) threats tocommit any of the foregoing acts”). Refer to § 10.5.3.2 (Collective Penalties and Measures of Intimidation or
Terrorism).
107

Refer to § 5.26.3.1 (Prohibition on Offering Rewards for Enemy Persons Dead or Alive).

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leading to the apprehension or killing of insurgents in combat. 108
17.6.7 Prohibition on Collective Punishment. Collective punishments, whether
administered by a court or through administrative measures, are prohibited. 109 Collective
penalties are prohibited as a general matter. 110
17.7 RULES ON CONDUCTING ATTACKS IN NIAC
Parties to a conflict must conduct attacks in accordance with the principles of distinction
and proportionality. In particular, the following rules must be observed:•

Combatants may not direct attacks against civilians, civilian objects, or other protected
persons and objects. 111•

The distinctive emblem must not be used while engaging in attacks. 112•

Combatants must refrain from attacks in which the expected loss of life or injury tocivilians, and damage to civilian objects incidental to the attack, would be excessive in
relation to the concrete and direct military advantage expected to be gained. 113•

Combatants must take feasible precautions in planning and conducting attacks to avoid
incidental harm to civilians and civilian objects. 114•

In conducting attacks, combatants must assess in good faith the information that is108

See 1958 UK MANUAL ¶116 note 1(b) (“If a government or military commander offers rewards for all orindividual armed insurgents killed or wounded by the forces engaged in quelling the insurrection, such offers areopen to the same objection as those set out above in respect of hostilities between belligerents, and are probableunlawful. On the other hand, there is no objection to offering rewards for the apprehension of insurgents or forgiving information leading to the apprehension or killing of insurgents in combat. A State is entitled to secure thecapture of armed rebels in order that they may be tried as such, or to kill or wound them in combat. However, theprobable effect of the common Art. 3, when applicable, is to prohibit inducements being given to troops, police or
civilians, to take the law into their own hands.”).
109

Consider AP II art. 4(2) (“Without prejudice to the generality of the foregoing, the following acts against thepersons referred to in paragraph 1 [i.e., all persons who do not take a direct part or who have ceased to take part inhostilities, whether or not their liberty has been restricted,] are and shall remain prohibited at any time and in any
place whatsoever: … b) collective punishments;”); BOTHE, PARTSCH, & SOLF, NEW RULES 642 (AP II art. 4, ¶2.5)(“Paragraph 2 (b) prohibits ‘collective punishments’. The Committee had proposed ‘collective penalties’. Thechange of this wording was accepted in order to include not only penalties imposed by a court but also penalties
imposed by administrative measures.”).
110

Refer to § 8.16.2.1 (Individual Penal Responsibility and No Collective Punishment).

111

Refer to § 5.5 (Discrimination in Conducting Attacks).

112

Refer to § 17.16.2 (Improper Use of the Distinctive Emblem).

113

Refer to § 5.12 (Proportionality – Prohibition on Attacks Expected to Cause Excessive Incidental Harm).

114

Refer to § 5.11 (Proportionality – Feasible Precautions in Planning and Conducting Attacks to Reduce the Risk ofHarm to Protected Persons and Objects).

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available to them. 115•

Specific rules apply to the use of certain types of weapons. 116

These rules apply to all parties to a non-international armed conflict, including persons
belonging to non-State armed groups, and persons who decide to participate in hostilities of theirown initiative. However, persons who belong to non-State armed groups, or who decide toparticipate in hostilities of their own initiative, may also be subject to the State’s domestic
law. 11717.7.1 AP II Rule on Works and Installations Containing Dangerous Forces. AP II
provides that works or installations containing dangerous forces, namely dams, dykes, andnuclear electrical generating stations, shall not be made the object of attack, even where theseobjects are military objectives, if such attack may cause the release of dangerous forces andconsequent severe losses among the civilian population. 118 The United States has objected tothis rule in the context of international armed conflict and does not view it as reflecting
customary international law in either international or non-international armed conflict insofar as
the rule deviates from the regular application of the principles of distinction andproportionality. 119
However, the Executive, in submitting AP II to the Senate for its advice and consent to
ratification in 1987, did not recommend a reservation from or an understanding applicable to thisprovision of AP II based on an assessment that preserving the option to attack works or
installations containing dangerous forces would not be as important in internal conflicts aspreserving that option would be in international armed conflicts. 120

115

Refer to § 5.3 (Assessing Information Under the Law of War).

116

Refer to § 17.13.2 (Certain Types of Weapons With Specific Rules on Use in NIAC).

117

Refer to § 17.4 (A State’s Use of Its Domestic Law and NIAC).

118

Consider AP II art. 15 (“Works or installations containing dangerous forces, namely dams, dykes and nuclear
electrical generating stations, shall not be made the object of attack, even where these objects are military objectives,
if such attack may cause the release of dangerous forces and consequent severe losses among the civilian
population.”).
119

Refer to § 5.13.1 (AP I Provisions on Works and Installations Containing Dangerous Forces).

120

Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on the
Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the
Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 434 (1987)(“Professor HAMILTON DESAUSSURE asked for an explanation of the apparent inconsistency between the UnitedStates rejection of the provisions in article 56 of Protocol I, relating to dams and dykes, and the simultaneous
acceptance of article 15 of Protocol II, which contains similar provisions. Mr. MATHESON replied that the UnitedStates military based its objections on a pragmatic, real-world estimation of the difference between the twosituations. The military perceives that in international conflicts, many situations may arise where it is important to
attack and destroy parts of an electric power grid, such as a nuclear or hydroelectric generating station. In internal
conflicts, on the other hand, such a significant real-world need will not exist. Preserving the military option ininternational conflicts where such facilities are more likely to become an object of military attack, therefore, is very
important.”).

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17.8 IMPARTIAL HUMANITARIAN ORGANIZATIONS AND HUMANITARIAN ACTIVITIES DURING
NIAC
An impartial humanitarian body, such as the International Committee of the Red Cross,may offer its services to the parties to the conflict. 121 The civilian population may, even on its
own initiative, offer to collect and care for the wounded, sick, and shipwrecked. 122 Similarly, theUnited Nations Educational, Scientific and Cultural Organization may offer its services to theparties to the conflict. 123
17.8.1 State Consent for Humanitarian Organizations. The activities of relief
organizations are subject to the consent of the State concerned. 124
States may withhold consent for, inter alia, legitimate military reasons, but should notarbitrarily withhold consent. 125 The safety of personnel of humanitarian organizations is alegitimate consideration for a government in consenting to their operations. Where a State has
accepted the services of an impartial humanitarian organization, the State must not regard suchservice, such as the provision of medical care, as unlawful and subject to punishment. 126
17.9 PROTECTION OF THE CIVILIAN POPULATION IN NIAC
17.9.1 Displacement of the Civilian Population. The displacement of the civilian
population shall not be ordered for reasons related to the conflict unless the security of the121

GWS art. 3 (“An impartial humanitarian body, such as the International Committee of the Red Cross, may offer
its services to the Parties to the conflict”); GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3 (same). Consider
AP II art. 18 (“Relief societies located in the territory of the High Contracting Party, such as Red Cross (Red
Crescent, Red Lion and Sun) organizations, may offer their services for the performance of their traditional
functions in relation to the victims of the armed conflict.”).
122

Consider AP II art. 18(1) (“The civilian population may, even on its own initiative, offer to collect and care forthe wounded, sick and shipwrecked.”).
123

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 19(3) (“The United Nations Educational, Scientific andCultural Organization may offer its services to the parties to the conflict.”).

124

Consider AP II art. 18(2) (“If the civilian population is suffering undue hardship owing to a lack of the supplies
essential for its survival, such as foodstuffs and medical supplies, relief actions for the civilian population which areof an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shallbe undertaken subject to the consent of the High Contracting Party concerned.”).
125

Detailed Analysis of Provisions, Attachment 1 to George P. Shultz, Letter of Submittal, Dec. 13, 1986, MESSAGE
FROM THE PRESIDENT TRANSMITTING AP II 6 (“For its part, the United States would expect that the requirement ofconsent [in article 18 of AP II] by the party concerned would not be implemented in an arbitrary manner, and thatessential relief shipments would only be restricted or denied for the most compelling and legitimate reasons.”).
126

Principles Related to the Protection of Medical Care Provided by Impartial Humanitarian Organizations During
Armed Conflict, ¶VI, attachment to Ash Carter, Secretary of Defense, Memorandum re: Principles Related to theProtection of Medical Care Provided by Impartial Humanitarian Organizations During Armed Conflict, Oct. 3,
2016 (“VI. Impartial humanitarian organizations may offer their services to any of the parties to the conflict. A.
States should not arbitrarily withhold their consent to the activities of humanitarian organizations. B. Where a State
has accepted the services of an impartial humanitarian organization, it must not regard such services, including theprovision of medical care, as unlawful and subject to punishment.”).

1052

civilians involved or imperative military reasons so demand. 127 Should such displacements haveto be carried out, all possible measures shall be taken in order that the civilian population may bereceived under satisfactory conditions of shelter, hygiene, health, safety, and nutrition. 128
Civilians shall not be compelled to leave their own territory for reasons connected withthe conflict. 129 A State must not compel civilians to leave its territory for reasons connected tothe conflict, while insurgents that control territory must not compel civilians to leave the area
under their authority. 130
17.9.1.1 Security of the Civilians Involved or Imperative Military Reasons.
Legitimate reasons to order the movement of the civilian population may include, for example:•

affording the civilian population greater protection from insurgents; and•reducing the support provided to insurgents from elements of the civilian population. 131

Legitimate reasons to order the movement of civilians do not include the use of individuals orgroups of civilians around military objectives as involuntary human shields. 132
17.9.2 Prohibition on Starvation of Civilians as a Method of Combat. Starvation ofcivilians as a method of combat is prohibited. It is therefore prohibited to attack, destroy,
remove, or render useless, for that purpose, objects indispensable to the survival of the civilian
population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops,
127

Consider AP II art. 17(1) (“The displacement of the civilian population shall not be ordered for reasons related tothe conflict unless the security of the civilians involved or imperative military reasons so demand.”).
128

Consider AP II art. 17(1) (“Should such displacements have to be carried out, all possible measures shall betaken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health,safety and nutrition.”).
129

Consider AP II art. 17(2) (“Civilians shall not be compelled to leave their own territory for reasons connectedwith the conflict.”).
130

Cf. ICRC AP COMMENTARY 1475 (¶4859) (“First, there is a question whether, within the meaning of thisprovision [in article 17 of AP II], the term ‘territory’ is equivalent to country. The ICRC draft referred to ‘national
territory’. Some amendments proposed substituting the formula ‘across the frontiers of the country of origin’. It isclear that there was never any doubt in anyone's mind that the phrase was intended to refer to the whole of theterritory of a country. However, the text states that it is prohibited to compel civilians to leave ‘their own territory’.
In fact, this formula appears to be better suited to all the possible cases which might arise in a situation covered byProtocol II, and to take into account, in particular, situations where the insurgent party is in control of an extensive
part of the territory. In this case the insurgents, too, should respect the obligation laid down here, and not compel
civilians to leave the area under their authority.”).
131

For example, Lt. Col. Jerome F. Bierly and Timothy W. Pleasant, Malaya—A Case Study, MARINE CORPSGAZETTE 46, 48 (Jul. 1990) (“The Briggs Plan called for the movement of the general population into protectedareas. In all, a total of 410 villages were eventually moved into areas fortified against guerrilla attacks. This served
two purposes: It helped to protect the populace from the attacks, and at the same time it cut off the majority of thefood supply to the guerillas. Also, the Chinese population, from which the guerillas drew most of their support, wasprovided a situation in which they could participate in the local government and establish a degree of economic
prosperity they had not previously enjoyed.”).
132

Refer to § 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military
Operations).

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livestock, drinking water installations and supplies, and irrigation works. 133
17.9.2.1 Starvation of Enemy Forces Not Prohibited. It is only actions that are forthe purpose of starving civilians as a method of combat that are prohibited under this rule;measures to starve enemy forces are not prohibited. 134 For example, States may institute generalfood control programs that involve the destruction of crops and the adequate provision of thecivilian population with food. 135
Military action intended to starve enemy forces, however, must not be taken where it isexpected to result in incidental harm to the civilian population that is excessive in relation to themilitary advantage anticipated to be gained. 136
Feasible precautions to reduce the risk of harm to the civilian population or otherreasonable measures to mitigate the burden to the civilian population may also be warranted
when seeking to starve enemy forces. 137
17.10 PROTECTION OF CHILDREN IN NIAC
17.10.1 General Protection and Care of Children. Children shall be provided with thecare and aid they require. 138
Children shall receive an education, including religious and moral education, in keepingwith the wishes of their parents, or in the absence of parents, of those responsible for theircare. 139
All appropriate steps shall be taken to facilitate the reunion of families temporarily

133

Consider AP II art. 14 (“Starvation of civilians as a method of combat is prohibited. It is therefore prohibited toattack, destroy, remove or render useless, for that purpose, objects indispensable to the survival of the civilian
population, such as food stuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water
installations and supplies and irrigation works.”).
134

Refer to § 5.20.1 (Starvation – Distinction).

135

For example, R.W. Komer, The Malayan Emergency in Retrospect: Organization of A Successful
Counterinsurgency Effort, 59 (RAND Corporation, Feb. 1972) (“In order to force the insurgents to make supply
their major concern, the GOM turned to sizable food denial campaigns as the preferred form of security force
operations. By July 1953 no less than 77 such operations had been mounted in the state of Negri Sembilan alone. …
It did not take much ‘seepage’ to feed a guerrilla who could subsist on a daily ration of a handful of rice. But hecould store without detection only about six to eight weeks’ supply, and the number of people, time, and effort
involved in a ‘food lift’ from village to jungle edge to deep jungle was such as to make the lift vulnerable todiscovery.”).
136

Refer to § 5.20.2 (Starvation – Proportionality).

137

Refer to § 5.20.2 (Starvation – Proportionality).

138

Consider AP II art. 4(3) (“Children shall be provided with the care and aid they require, … .”).

139

Consider AP II art. 4(3)(a) (“they shall receive an education, including religious and moral education, in keepingwith the wishes of their parents, or in the absence of parents, of those responsible for their care;”).

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separated. 140
Measures shall be taken, if necessary, and whenever possible with the consent of theirparents or persons who by law or custom are primarily responsible for their care, to remove
children temporarily from the area in which hostilities are taking place to a safer area within the
country and ensure that they are accompanied by persons responsible for their safety and wellbeing. 141
The death penalty shall not be pronounced on persons who were under the age ofeighteen years at the time of the offense and shall not be carried out on pregnant women or
mothers of young children. 142
17.10.2 Children and Participation in Non-International Armed Conflict. Children who
have not attained the age of fifteen years shall neither be recruited in the armed forces or groups
nor allowed to take part in hostilities. 143 Children who are captured and who have taken a directpart in hostilities remain entitled to the special protections afforded to children. 144
The use or recruitment of child soldiers is an offense in U.S. law. 145 The United States
has additional obligations as a Party to the Child Soldiers Protocol. 146
17.11 PROTECTION OF CULTURAL PROPERTY IN NIAC
17.11.1 Application of Certain Provisions of the 1954 Hague Cultural Property
Convention. In the event of an armed conflict not of an international character occurring within
the territory of one of the Parties to the 1954 Hague Cultural Property Convention, each party to
the conflict shall be bound to apply, as a minimum, the provisions of the 1954 Hague Cultural
Property Convention that relate to respect for cultural property. 147

140

Consider AP II art. 4(3)(b) (“all appropriate steps shall be taken to facilitate the reunion of families temporarily
separated;”).
141

Consider AP II art. 4(3)(e) (“[M]easures shall be taken, if necessary, and whenever possible with the consent of
their parents or persons who by law or custom are primarily responsible for their care, to remove children
temporarily from the area in which hostilities are taking place to a safer area within the country and ensure that they
are accompanied by persons responsible for their safety and well-being.”).
142

Refer to § 8.16.2.4 (Limitations on the Death Penalty).

143

Consider AP II art. 4(3)(c) (“[C]hildren who have not attained the age of fifteen years shall neither be recruited in
the armed forces or groups nor allowed to take part in hostilities;”); ROME STATUTE art. 8(2)(e)(vii) (defining “warcrime” to include “[c]onscripting or enlisting children under the age of fifteen years into armed forces or groups orusing them to participate actively in hostilities” in non-international armed conflict).
144

Consider AP II art. 4(3)(d) (“the special protection provided by this Article to children who have not attained theage of fifteen years shall remain applicable to them if they take a direct part in hostilities despite the provisions of
sub-paragraph c) and are captured;”).
145

Refer to § 4.20.5.1 (U.S. Offense of Recruiting or Using Child Soldiers).

146

Refer to § 4.20.5 (Child Soldiers); § 17.2.1.2 (Implicit Application of Treaty Provisions to Situations in NIAC).

147

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 19(1) (“In the event of an armed conflict not of aninternational character occurring within the territory of one of the High Contracting Parties, each party to the1055

17.11.2 Obligations to Respect Cultural Property. The obligation to respect culturalproperty includes essentially negative duties, i.e., duties to refrain from acts of hostility directedagainst cultural property and duties to refrain from the use of cultural property in support ofmilitary operations where such use is not imperatively necessary. 148
For example, parties to a conflict must not direct acts of hostility against culturalproperty, its immediate surroundings, or appliances in use for its protection, unless such action isrequired by imperative military necessity. 149
In addition, no use should be made of cultural property, its immediate surroundings, orappliances in use for its protection, for purposes that are likely to expose it to destruction ordamage in the event of armed conflict, unless such action is required by imperative militarynecessity. 150
17.12 USE OF CAPTURED OR SURRENDERED ENEMY PERSONNEL IN NIAC
In contrast to the rules during international armed conflict, State forces may use captured
or surrendered enemy personnel in operations against enemy non-State armed groups. The
cooperation of enemy personnel may not, however, be procured through illegal methods.
17.12.1 Compelling Captured or Surrendered Enemy Personnel to Take Part in the
Conflict. During international armed conflict, it is prohibited to compel the nationals of thehostile party to take part in the operations of war directed against their own country. 151
Additional restrictions apply with respect to POWs, retained personnel, protected persons in thehome territory of a belligerent, and protected persons in occupied territory. 152
These rules, however, do not apply during non-international armed conflict. Underinternational law, a State may compel its nationals to serve in its armed forces and to fightagainst non-State armed groups. 153 For example, in contrast to POWs, captured insurgents who
are nationals of that State could be required to serve in that State’s armed forces or to take part inconflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for
cultural property.”).
148

Refer to § 5.18.2 (Respect and Safeguarding of Cultural Property). Consider AP II art. 16 (“Without prejudice tothe provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14
May 1954, it is prohibited to commit any acts of hostility directed against historic monuments, works of art or placesof worship which constitute the cultural or spiritual heritage of peoples, and to use them in support of the militaryeffort.”).
149

Refer to § 5.18.5 (Refraining From Any Act of Hostility).

150

Refer to § 5.18.3 (Refraining From Any Use for Purposes That Are Likely to Expose It to Destruction or
Damage).
151

Refer to § 5.27 (Prohibition Against Compelling Enemy Nationals to Take Part in the Operations of War Directed
Against Their Own Country).
152

Refer to § 9.19.2.3 (Labor Assignments That May Be Compelled); § 7.9.5.6 (No Other Compulsory Duties);§ 10.7.3 (Compulsory Work for Protected Persons in a Belligerent’s Home Territory); § 11.20.1.1 (Prohibition on
Compulsory Service in an Occupying Power’s Armed Forces).
153

Refer to § 4.5.2.4 (Draftees).

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operations directed against their former comrades. 154
17.12.2 Methods of Gaining Cooperation. Inhumane treatment or other illegal methods(such as threats to commit unlawful acts) may not be used to gain the cooperation of captured
enemy persons. 155
However, a combination of threats of criminal punishment and inducements (e.g.,amnesty, monetary rewards) may be used to seek to gain the cooperation of captured enemy
persons. 156 For example, law enforcement authorities often use the cooperation of members ofcriminal gangs or conspiracies to thwart and to prosecute the other participants or leaders in thatcriminal enterprise. 157
17.13 WEAPONS IN NIAC
17.13.1 Prohibited Weapons in NIAC. The use of the following types of weapons is154

For example, Donald A. MacCuish and Spencer C. Tucker, Pseudoforces, in ENCYCLOPEDIA OF INSURGENCY
AND COUNTERINSURGENCY: A NEW ERA OF MODERN WARFARE 452 (2013) (“Pseudoforces are military units madeup of former insurgents who have been turned to work with counterinsurgency forces against their former
colleagues. This is possible because insurgent rank and filers are generally not as committed as their ideologicallybound leaders. Pseudoforces are a tremendous advantage in counterinsurgency operations. They can identify
certain of the insurgents, are well familiar with the operational terrain and the villagers, and understand what
motivates the insurgents and their supporters. They are of immense importance. Pseudoforces have played a role invirtually every insurgency since World War II (1939-1945). … During the Dhofar campaigns in Oman (1970-1975),
the British made extensive use of pseudoforces, employing some 1,600 in 21 different units based on tribal
affiliations. The Portuguese also made extensive use of pseudoforces during the insurgencies in their African
territories. Notable among these were the Flechas (‘Arrows’) in Angola.”); MAJOR LAWRENCE M. GREENBERG, THE
HUKBALAHAP INSURRECTION: A CASE STUDY OF A SUCCESSFUL ANTI-INSURGENCY OPERATION IN THE PHILIPPINES– 1946-1955 125 (1986) (“On the island of Panay, the Philippine Army tried a variation of the ‘Force X’ concept tobreak the local guerrilla structure. Accompanied by three military intelligence agents, a group of twenty former
Huks were infiltrated into the island’s interior. After three months of gathering information, establishing their coveras a bona fide Huk unit, and gaining the confidence of the island’s Huk leadership, they hosted a ‘by invitation only’
barbecue for the Panay High Command. Between the ribs and potato salad, the covert government force sprang anambush that killed or captured nearly all the Panay commanders and crippled the organization on the island for theduration of the campaign.”).
155

Refer to § 8.2 (Humane Treatment of Detainees); § 8.2.4 (Threats to Commit Inhumane Treatment).

156
For example, DEPARTMENT OF THE ARMY FIELD MANUAL 3-24, Counterinsurgency, 1-19 (¶1-104) (Dec. 2006)(“Nothing is more demoralizing to insurgents than realizing that people inside their movement or trusted supporters
among the public are deserting or providing information to government authorities. Counterinsurgents may attract
deserters or informants by arousing fear of prosecution or by offering rewards.”).
157

For example, Benjamin Weiser, Terrorist Has Cooperated With U.S. Since Secret Guilty Plea in 2011, Papers
Show, THE NEW YORK TIMES, Mar. 25, 2013 (“A Somali terrorist with ties to Al Qaeda whose capture andinterrogation aboard a United States naval ship in 2011 fueled debate about the Obama administration’s
counterterrorism tactics secretly pleaded guilty in Manhattan and has been cooperating with the authorities, court
documents released on Monday show. The terrorist, Ahmed Abdulkadir Warsame, served as a military commanderwith the Shabab in Somalia and worked as a liaison with Al Qaeda’s branch in Yemen, including brokering a deal
for the Shabab to buy weapons directly from the Qaeda group, the government has said. The newly unsealed court
papers show Mr. Warsame pleaded guilty in a closed court proceeding in Manhattan in December 2011, about fivemonths after he was brought to New York. After the plea, he met weekly with the government for hours at a time,
disclosing intelligence information about his Shabab and Qaeda co-conspirators, who included ‘high-levelinternational terrorist operatives,’ prosecutors said in one highly redacted letter dated March 2012.”).

1057

prohibited during non-international armed conflict:•weapons calculated to cause superfluous injury; 158•

inherently indiscriminate weapons; 159•

poison, poisoned weapons, poisonous gases, and other chemical weapons; 160•

biological weapons; 161•

weapons that injure by fragments that are non-detectable by X-rays; 162•

certain types of mines, booby-traps, and other devices; 163 and•blinding lasers. 164

17.13.2 Certain Types of Weapons With Specific Rules on Use in NIAC. Certain types
of weapons are subject to specific rules that apply to their use by the U.S. armed forces in noninternational armed conflict. These weapons include:•

mines, booby-traps, and other devices (except certain specific classes of prohibited
mines, booby-traps, and other devices); 165•

incendiary weapons; 166•

laser weapons (except blinding lasers); 167 and•explosive ordnance. 168

17.14 PROTECTION OF THE WOUNDED, SICK, SHIPWRECKED, AND DEAD IN NIAC
17.14.1 Respect, Protection, Humane Treatment, and Medical Care of the Wounded,
158

Refer to § 6.6 (Weapons Calculated to Cause Superfluous Injury).

159

Refer to § 6.7 (Inherently Indiscriminate Weapons).

160

Refer to § 6.8 (Poison, Poisoned Weapons, Poisonous Gases, and Other Chemical Weapons).

161

Refer to § 6.9 (Biological Weapons).

162

Refer to § 6.11 (Weapons Injuring by Fragments Not Detectable by X-Rays).

163

Refer to § 6.12.4 (Prohibited Classes of Mines, Booby-Traps, and Other Devices).

164

Refer to § 6.15.1 (Prohibition on “Blinding Laser” Weapons).

165

Refer to § 6.12 (Landmines, Booby-Traps, and Other Devices).

166

Refer to § 6.14 (Incendiary Weapons).

167

Refer to § 6.15.2 (Feasible Precautions in the Employment of Laser Systems to Avoid the Incident of Permanent
Blindness).
168

Refer to § 6.19 (Explosive Ordnance).

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Sick, and Shipwrecked. All the wounded, sick, and shipwrecked, whether or not they have taken
part in the armed conflict, shall be respected and protected. 169
17.14.1.1 Types of Persons Who Are Considered Wounded, Sick, andShipwrecked in NIAC. The wounded, sick, and shipwrecked in non-international armed conflictmay be understood to include:•

persons who have been rendered unconscious or otherwise have been incapacitatedbecause of their wounds, sickness, or shipwreck; 170•

persons who have surrendered as a consequence of their health; and 171•

persons who have been shipwrecked (i.e., helpless persons in distress at sea or strandedon the coast) from any cause, including forced landings at sea by or from aircraft. 172

Of course, any person who commits hostile acts or attempts to evade capture forfeits
protection as someone who is placed hors de combat. 173
17.14.1.2 Meaning of “Respect and Protection” of the Wounded, Sick, andShipwrecked. The wounded, sick, and shipwrecked must be respected and protected at all times.
This means that they should not be knowingly attacked, fired upon, or unnecessarily interferedwith. 174
Persons who are part of armed forces or groups, however, are deemed to have accepted
the risk of harm due to deliberate proximity to military objectives. 175 Although the presence ofsuch persons does not serve to exempt nearby military objectives from attack due to the risk thatsuch persons would be incidentally harmed, feasible precautions to reduce the risk of harm tosuch persons who are wounded, sick, or shipwrecked must be taken. 176
The respect and protection afforded the wounded, sick, and shipwrecked do not
immunize them from search, or other necessary security measures, or capture and detention, even
if they are receiving medical care. 177
169

Consider AP II art. 7(1) (“All the wounded, sick and shipwrecked, whether or not they have taken part in thearmed conflict, shall be respected and protected.”).
170

Refer to § 5.9.4 (Persons Rendered Unconscious or Otherwise Incapacitated by Wounds, Sickness, orShipwreck).
171

Refer to § 5.9.3 (Persons Who Have Surrendered).

172

Compare § 7.3.1.2 (Shipwrecked).

173

Refer to § 5.9 (Persons Placed Hors de Combat).

174

Compare § 7.3.3 (Meaning of “Respect and Protection” of the Wounded, Sick, and Shipwrecked).

175

Compare § 7.3.3.1 (Incidental Harm Not Prohibited).

176

Compare § 5.10.1.2 (Proportionality in Conducting Attacks and Protected Military Personnel and Facilities).

177

Compare § 7.3.3.2 (Search and Other Security Measures Not Prohibited); § 7.3.3.3 (Capture of Wounded, Sick,and Shipwrecked Not Prohibited).

1059

Booby-trapping the wounded or sick is expressly prohibited. 178
17.14.2 Humane Treatment and Practicable Medical Care and Attention. In all
circumstances, the wounded, sick, and shipwrecked shall be treated humanely and shall receive,to the fullest extent practicable and with the least possible delay, the medical care and attention
required by their condition. 179 There shall be no distinction among them founded on any
grounds other than medical ones. 180
17.14.3 Search, Collection, and Protection of the Wounded, Sick, Shipwrecked, andDead. Whenever circumstances permit, and particularly after an engagement, all possible
measures shall be taken, without delay, to search for and collect the wounded, sick, andshipwrecked, to protect them against pillage and ill-treatment, to ensure their adequate care, andto search for the dead, prevent their being despoiled, and decently dispose of them. 181
The obligations to search for, collect, and take affirmative steps to protect the wounded,
sick, and shipwrecked are subject to practical limitations; military commanders are to judge what
is possible, and to what extent they can commit their personnel to these duties. 182
17.14.3.1 Mistreatment and Booby-Trapping of the Dead Prohibited. The
mistreatment of the dead is prohibited. 183 In addition, the dead may not be booby-trapped. 184
17.15 PROTECTION OF MEDICAL AND RELIGIOUS PERSONNEL AND MEDICAL TRANSPORTS IN
NIAC
17.15.1 Protection of Medical and Religious Personnel. Medical and religious personnel
178

Refer to § 6.12.4.9 (Certain Types of Prohibited Booby-Traps and Other Devices).

179

Consider AP II art. 7(2) (“In all circumstances they shall be treated humanely and shall receive, to the fullest
extent practicable and with the least possible delay, the medical care and attention required by their condition.”).
180

Consider AP II art. 7(2) (“There shall be no distinction among them founded on any grounds other than medical
ones.”).
181

Consider AP II art. 8 (“Whenever circumstances permit, and particularly after an engagement, all possible
measures shall be taken, without delay, to search for and collect the wounded, sick and shipwrecked, to protect themagainst pillage and ill-treatment, to ensure their adequate care, and to search for the dead, prevent their being
despoiled, and decently dispose of them.”).
182

Compare § 7.4.4 (Practical Limitations on the Obligation to Search for, Collect, and Take Measures to Protect the
Wounded, Sick, and Shipwrecked).
183

For example, Karen Parrish, Panetta Orders Investigation of Video, Vows Accountability, AMERICAN FORCESPRESS SERVICE, Jan. 12, 2012 (“Defense Secretary Leon E. Panetta released a statement today strongly condemning
the actions of a small group of Marines depicted in a video that began circulating online yesterday. The video shows
four Marines apparently urinating over three enemy corpses in Afghanistan. The secretary’s statement said he has
seen the footage and finds the behavior depicted in it ‘utterly deplorable.’ ‘I condemn it in the strongest possible
terms,’ Panetta said. ‘I have ordered the Marine Corps and ISAF commander [Marine Corps] Gen. John Allen to
immediately and fully investigate the incident. This conduct is entirely inappropriate for members of the UnitedStates military and does not reflect the standards or values our armed forces are sworn to uphold. Those found tohave engaged in such conduct will be held accountable to the fullest extent.’”). Compare § 7.7.1.1 (NoDisrespectful or Degrading Treatment of the Dead).
184

Refer to § 6.12.4.9 (Certain Types of Prohibited Booby-Traps and Other Devices).

1060

shall be respected and protected and shall be granted all available help for the performance of
their duties. They shall not be compelled to carry out tasks that are not compatible with their
humanitarian mission. 185
17.15.1.1 Types of Persons Who Are Considered Medical and Religious
Personnel in NIAC. Medical and religious personnel include those persons who are exclusively(e.g., permanently) engaged in those duties. 186 For example, persons who intermittently take adirect part in hostilities are not considered medical and religious personnel. 187
17.15.1.2 Meaning of “Respect and Protection” of Medical and Religious
Personnel. The respect and protection accorded to medical and religious personnel mean thatthey must not knowingly be attacked, fired upon, or unnecessarily prevented from discharging
their proper functions. 188
Medical and religious personnel who are part of armed forces or groups, however, aredeemed to have accepted the risk of harm due to their deliberate proximity to military
objectives. 189 Although the presence of such personnel would not serve to exempt nearby
military objectives from attack due to the risk that such personnel would be incidentally harmed,
feasible precautions must be taken to reduce the risk of harm to such personnel. 190
The respect and protection afforded medical and religious personnel do not immunize
them from search, or from other necessary security measures, or from capture and detention. 191
AP II and applicable treaties to which the United States is a Party (such as the 1949 Geneva
Conventions) do not afford medical and religious personnel belonging to non-State armed groups
retained personnel status if captured.
17.15.2 Protection of Medical Units and Transports. Medical units and transports shallbe respected and protected at all times and shall not be the object of attack. 192 The protection towhich medical units and transports are entitled shall not cease unless they are used to commit
hostile acts, outside their humanitarian function. Protection may, however, cease only after awarning has been given setting, whenever appropriate, a reasonable time-limit, and after such

185

Consider AP II art. 9(1) (“Medical and religious personnel shall be respected and protected and shall be granted
all available help for the performance of their duties. They shall not be compelled to carry out tasks which are notcompatible with their humanitarian mission.”).
186

Refer to § 4.9.2.3 (Exclusively Engaged in Humanitarian Duties).

187

Refer to § 5.8.3 (“Taking a Direct Part in in Hostilities”).

188

Compare § 7.8.2 (Meaning of “Respect and Protection” of Medical and Religious Personnel).

189

Compare § 7.8.2.1 (Incidental Harm Not Prohibited).

190

Compare § 5.10.1.2 (Proportionality in Conducting Attacks and Protected Military Personnel and Facilities).

191

Compare § 7.8.2.2 (Search and Other Security Measures Not Prohibited); § 7.8.2.3 (Capture Not Prohibited).

192

Consider AP II art. 11(1) (“Medical units and transports shall be respected and protected at all times and shall not
be the object of attack.”).

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warning has remained unheeded. 193
17.15.2.1 Types of Units and Vehicles That Are Considered Medical Units andTransports. Medical units and transports include those units and vehicles that are exclusively(e.g., permanently) engaged in those activities. 194 For example, units and transports thatintermittently are used in hostilities are not considered medical units and transports.
17.15.2.2 Meaning of “Respect and Protection” of Medical Units and Transports.
The respect and protection accorded to medical units and transports mean that they must notknowingly be attacked, fired upon, or unnecessarily prevented from discharging their proper
functions. 195
Medical units and transports that are part of armed forces or groups, however, are deemed
to have accepted the risk of harm due to their deliberate proximity to military objectives. 196
Although the presence of such medical units and transports would not serve to exempt nearby
military objectives from attack due to the risk that such medical units and transports would be
incidentally harmed, feasible precautions must be taken to reduce the risk of harm to such
medical units and transports. 197
The respect and protection afforded medical units and facilities does not immunize themfrom search or capture. 198
17.16 DISPLAY OF THE DISTINCTIVE EMBLEM IN NIAC
Under the direction of the competent authority concerned, the distinctive emblem of the
red cross, red crescent, or red lion and sun on a white ground shall be displayed by medical andreligious personnel and medical units, and on medical transports. It shall be respected in all
circumstances. It shall not be used improperly. 199
These rules also apply to the distinctive emblem of the red crystal. 200

193

Consider AP II art. 11(2) (“The protection to which medical units and transports are entitled shall not cease
unless they are used to commit hostile acts, outside their humanitarian function. Protection may, however, cease
only after a warning has been given setting, whenever appropriate, a reasonable time-limit, and after such warning
has remained unheeded.”).
194

Refer to § 4.9.2.3 (Exclusively Engaged in Humanitarian Duties).

195

Compare § 7.10.1 (Meaning of “Respect and Protection” of Military Medical Units and Facilities).

196

Compare § 7.10.1.1 (Incidental Harm Not Prohibited).

197

Compare § 5.10.1.2 (Proportionality in Conducting Attacks and Protected Military Personnel and Facilities).

198

Compare § 7.10.1.2 (Search Not Prohibited); § 7.10.1.3 (Capture Not Prohibited).

199

Consider AP II art. 12 (“Under the direction of the competent authority concerned, the distinctive emblem of the
red cross, red crescent or red lion and sun on a white ground shall be displayed by medical and religious personnel
and medical units, and on medical transports. It shall be respected in all circumstances. It shall not be used
improperly.”).
200

Refer to § 7.15.1.3 (Red Crystal); § 17.2.1.1 (Treaties That Have Provisions That Explicitly Apply to NIAC).

1062

17.16.1 Display of the Emblem Under the Direction of the Competent Authority
Concerned. The display of the distinctive emblem is under the direction of the competentauthority concerned, which authority may authorize the removal or obscuring of the distinctive
emblem for tactical purposes, such as camouflage. 201 Similarly, it would be appropriate for the
distinctive emblem to be removed if it is assessed that enemy forces will fail to respect theemblem and seek to attack medical personnel; display of the emblem in such circumstances
would be deemed not to be feasible. 202
17.16.2 Improper Use of the Distinctive Emblem. Improper use of the distinctive
emblem includes use: (1) while engaging in attacks; (2) in order to shield, favor, or protect one’s
own military operations; or (3) to impede enemy military operations. 203
17.17 DETENTION IN NIAC
17.17.1 State Authority to Detain. Law of war treaties have not limited the scope ofwhom a State may detain for reasons related to a non-international armed conflict, but haveprescribed humane treatment for such persons. 204 A State’s authority to conduct detention
operations has often been understood as incident to the legal basis of the State to engage inoperations against the non-State armed group. 205
The precise legal requirements for a detention regime established by a State in noninternational armed conflict would likely depend a great deal on its domestic law.
17.17.1.1 Non-Punitive Detention in Non-International Armed Conflict. Nonpunitive detention may be conducted on a variety of legal theories under international law. 206
For example, although enemy non-State armed groups would not be entitled to POW status, aState may detain persons belonging to enemy armed groups, by analogy to the detention of
POWs in international armed conflict. Similarly, although persons would not be protected
persons under the GC, a State may detain persons for security reasons, by analogy to the201

Compare § 7.15.2.1 (Removal or Obscuration of the Distinctive Emblem).

202

Refer to § 5.2.3.2 (What Precautions Are Feasible).

203

Refer to § 5.24 (Improper Use of Certain Signs).

204

AP II art. 5(1) (“In addition to the provisions of Article 4, the following provisions shall be respected as aminimum with regard to persons deprived of their liberty for reasons related to the armed conflict, whether they areinterned or detained:”).
205

Refer to § 8.1.3.1 (Detention Authority).

206

For example, FRANK KITSON, GANGS AND COUNTER-GANGS 45 (1960) (“There was one other legal means ofgetting at the Mau Mau. This was for the Police to submit a dossier giving a full list of all that was known against aperson to the Governor, who could then sign an order for detention during the Emergency providing he was satisfied
that such action was necessary in the interests of maintaining public order. This was a good idea as far as it went but
the Governor could only sign a comparatively limited number. Certainly the system could not take care of all thecommittee members of all the committees though it was satisfactory for the most senior ones. It was an advance inanother way, in that it all but recognized the status of prisoner of war by saying to a man ‘You are not a criminal but
you are on the wrong side. You must be restrained until this trouble is over.’ It was of course contrary to theprinciples of British justice but it was merciful. In its extended form later in the Emergency it saved thousands ofloyalist lives by reducing the number of Mau Mau, and probably saved many Mau Mau lives by locking up people
who would otherwise have joined the gangs and been killed by the Security Forces.”).

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detention of protected persons in international armed conflict or occupation. Other legal
rationales for the detention of persons in non-international armed conflict also may be available.
17.17.1.2 Punitive Detention in Non-International Armed Conflict. During noninternational armed conflict, a State could also detain persons pursuant to its criminal law. For
example, persons who support enemy non-State armed groups could be sentenced to a variety ofoffenses (e.g., murder, criminal conspiracy, treason or other offenses against the State, material
support to terrorism or terrorist organizations).
17.17.2 Detention by Non-State Armed Groups. Non-State armed groups typicallywould lack domestic legal authority to conduct detention operations. Their actions may besubject to prosecution under domestic statutes making punishable kidnapping, hostage taking,false imprisonment, interference with State officials, etc. Nonetheless, detention during noninternational armed conflict by non-State armed groups is not prohibited by international law. In
any case, non-State armed groups that conduct detention operations must provide humane
treatment to detainees.
17.17.3 Humane Treatment and Other Applicable Requirements. All persons (including
those belonging to the State or those belonging to non-State armed groups) who are detained by
the adverse party are entitled to the protections of Common Article 3 of the 1949 Geneva
Conventions, including humane treatment. 207 Although detainees are afforded humane
treatment, they do not receive POW status. 208
Chapter VIII addresses the baseline rules for the humane treatment of detainees that
apply to all U.S. military operations, including those in non-international armed conflict. 209
17.18 NON-INTERVENTION AND NEUTRAL DUTIES IN NIAC
17.18.1 Duty of Non-Belligerent States to Refrain From Supporting Hostilities by NonState Armed Groups Against Other States. Under international law, principles of friendly
relations and non-intervention require States to refrain from supporting non-State armed groups
in hostilities against other States. 210
207

Refer to § 8.1.4.1 (Common Article 3 of the 1949 Geneva Conventions).

208

See, e.g., BOTHE, PARTSCH, & SOLF, NEW RULES 646 (AP II art. 5, ¶2.3) (“It must be emphasized in thisconnection that Protocol II does not confer a special status on members of the armed forces of either side capturedby the adverse party similar to the status of a prisoner of war in an international armed conflict. The rebel does not
enjoy any privilege with regard to acts committed during the rebellion.”); ICRC AP COMMENTARY 1386 (¶4570)(“Protocol II, following the example of common Article 3, does not grant a special status to members of the armed
forces or armed groups who have fallen into enemy hands. They are not legally prisoners of war entitled to special
protection; this is why it is so important that the rules laid down in this article [5 of AP II] establish minimum
guarantees.”).
209

Refer to § 8.1.1 (Overview of Detention Rules in This Manual and the Scope of Chapter VIII).

210

See, e.g., Declaration on Principles of International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations, annex to U.N. GENERAL ASSEMBLYRESOLUTION 2625 (XXV), U.N. Doc. A/RES/2625(XXV) (1970) (“Every State has the duty to refrain fromorganizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion
into the territory of another State. Every State has the duty to refrain from organizing, instigating, assisting or1064

These are closely analogous to the duties that neutral States have under the law ofneutrality to refrain from supporting military operations against belligerents. 211
In particular, States are required to take all reasonable steps to ensure that their territory is
not used by non-State armed groups for purposes of armed activities—including planning,
threatening, perpetrating, or providing material support for armed attacks—against other States
and their interests. 212 The failure to fulfill this duty may have consequences in regard to whether
other States that are threatened by these armed activities must seek the consent of that State
before taking action in self-defense in that State’s territory. 213
Violations of law of war treaties applicable to non-international armed conflict by a Stategenerally have not been understood to provide an independent basis in international law for a
non-belligerent State to intervene against the violating State in that conflict. 214
17.18.2 Duty of Belligerent States to Respect the Sovereignty of Other States. States thatare engaged in hostilities against non-State armed groups must respect the sovereignty of otherStates. 215 In general, States must obtain the consent of a territorial State before conducting
participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its
territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a
threat or use of force.”).
211

See, e.g., Christopher Greenwood, International law and the ‘war on terrorism,’ 78 INTERNATIONAL AFFAIRS
301, 313 (2002) (“By allowing Al-Qa’ida to operate from the territory which it controlled, the Taliban—and thus
Afghanistan—violated the general duty of a state under international law not to allow its territory to be used as abase for attacks on other states. … At the very least, its position was analogous to that of a neutral state whichallows a belligerent to mount military operations from its territory: even though it is not responsible for those
operations, it exposes itself to the risk of lawful military action to put a stop to them. Similarly, where a state allows
terrorist organizations to mount concerted operations against other states from its territory and refuses to take theaction required by international law to put a stop to such operations, the victims of those operations are entitled totake action against those terrorists.”); H. Lauterpacht, Revolutionary Activities by Private Persons Against Foreign
States, 22 AJIL 105, 127 (1928) (“The nearest approach to what is believed to be the true juridical construction of
the state’s duty to prevent organized hostile expeditions from proceeding in times of peace against a friendly state
will be found in the law of neutrality. … The two situations being closely analogous, it is only natural that they are
regulated in Great Britain and in the United States in the same legal enactments. The law of hostile expeditions isnothing else than the law of neutrality in relation to an actual or impending civil war.”).
212

Daniel Bethlehem, Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or
Actual Armed Attack by Nonstate Actors, 106 AJIL 1, 7 (2012) (“9. States are required to take all reasonable steps
to ensure that their territory is not used by nonstate actors for purposes of armed activities—including planning,
threatening, perpetrating, or providing material support for armed attacks—against other states and their interests.”).
213

Refer to § 17.18.2 (Duty of Belligerent States to Respect the Sovereignty of Other States).

214

See, e.g., CCW AMENDED art. 1(5) (“Nothing in this Convention or its annexed Protocols shall be invoked as ajustification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal orexternal affairs of the High Contracting Party in the territory of which that conflict occurs.”). Consider AP II art.
2(2) (“Nothing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any
reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the
territory of which that conflict occurs.”). Refer to § 1.11.4.4 (Humanitarian Intervention).

215

See, e.g., Jeh Charles Johnson, General Counsel, Department of Defense, National Security Law, Lawyers, andLawyering in the Obama Administration, Feb. 22, 2012, 2012 DIGEST OF UNITED STATES PRACTICE IN
INTERNATIONAL LAW 575, 577 (“Third: there is nothing in the wording of the 2001 AUMF or its legislative history
that restricts this statutory authority to the ‘hot’ battlefields of Afghanistan. … The legal point is important because,1065

military operations against a non-State armed group in that State’s territory. 216
The consent of the territorial State, however, is not necessary when the U.N. Security
Council has authorized the military operations. 217
In addition, the United States has expressed the view that consent is not required when
the territorial State is unwilling or unable to prevent its territory from being used by non-State
armed groups as a base for launching attacks. 218 Other States have also expressed this view. 219

in fact, over the last 10 years al Qaeda has not only become more decentralized, it has also, for the most part,
migrated away from Afghanistan to other places where it can find safe haven. However, this legal conclusion too
has its limits. It should not be interpreted to mean that we believe we are in any ‘Global War on Terror,’ or that we
can use military force whenever we want, wherever we want. International legal principles, including respect for astate’s sovereignty and the laws of war, impose important limits on our ability to act unilaterally, and on the way inwhich we can use force in foreign territories.”); Harold Hongju Koh, Legal Adviser, Department of State, Address at
the Annual Meeting of the American Society of International Law: The Obama Administration and International
Law Mar. 25, 2010, 2010 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 717-18 (“As recent events
have shown, al-Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us.
Thus, in this ongoing armed conflict, the United States has the authority under international law, and the
responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons suchas high-level al-Qaeda leaders who are planning attacks. … Of course, whether a particular individual will betargeted in a particular location will depend upon considerations specific to each case, including those related to theimminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states
to suppress the threat the target poses.”).
216

Daniel Bethlehem, Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or
Actual Armed Attack by Nonstate Actors, 106 AJIL 1, 7 (2012) (“Subject to the following paragraphs, a state may
not take armed action in self-defense against a nonstate actor in the territory or within the jurisdiction of anotherstate (‘the third state’) without the consent of that state. The requirement for consent does not operate incircumstances in which there is an applicable resolution of the UN Security Council authorizing the use of armed
force under Chapter VII of the Charter or other relevant and applicable legal provision of similar effect.”).
217

Daniel Bethlehem, Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or
Actual Armed Attack by Nonstate Actors, 106 AJIL 1, 7 (2012) (“The requirement for consent does not operate incircumstances in which there is an applicable resolution of the UN Security Council authorizing the use of armed
force under Chapter VII of the Charter or other relevant and applicable legal provision of similar effect.”). Refer to§ 1.11.4.2 (Use of Force Authorized by the U.N. Security Council Acting Under Chapter VII of the Charter of theUnited Nations).
218

See, e.g., Samantha J. Power, Letter dated 23 September 2014 from the Permanent Representative of the UnitedStates of America to the United Nations addressed to the Secretary-General, U.N. Doc. S/2014/695 (Sept. 23, 2014)(“ISIL and other terrorist groups in Syria are a threat not only to Iraq, but also to many other countries, including theUnited States and our partners in the region and beyond. States must be able to defend themselves, in accordancewith the inherent right of individual and collective self-defence, as reflected in Article 51 of the Charter of theUnited Nations, when, as is the case here, the government of the State where the threat is located is unwilling or
unable to prevent the use of its territory for such attacks. The Syrian regime has shown that it cannot and will notconfront these safe havens effectively itself.”); John B. Bellinger, III, Legal Adviser, Department of State, Legal
Issues in the War on Terrorism, Oct. 31, 2006, 2006 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW
1104, 1109-10 (“Let me be very clear here: I am not suggesting that, because we remain in a state of armed conflictwith al Qaida, the United States is free to use military force against al Qaida in any state where an al Qaida terrorist
may seek shelter. The U.S. military does not plan to shoot terrorists on the streets of London. As a practical matter,though, a state must be responsible for preventing terrorists from using its territory as a base for launching attacks.
And, as a legal matter, where a state is unwilling or unable to do so, it may be lawful for the targeted state to use
military force in self-defense to address that threat.”); Abraham Sofaer, The Sixth Annual Waldemar A. Solf Lecture
in International Law: Terrorism, the Law, and the National Defense, 126 MILITARY LAW REVIEW 89, 108 (1989)

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It may be unnecessary for a belligerent State to seek consent when there is a strong,reasonable, and objective basis for concluding that the seeking of consent would be likely toundermine materially the effectiveness of the action against the non-State armed group (e.g.,reasons of disclosure, delay, incapacity to act) or would increase the risk of armed attack,vulnerability to future attacks, or other development that would give rise to an independentimperative to act in self-defense. 220
17.18.3 States’ Support to Other States in Hostilities Against Non-State Armed Groups.
(“The United States in fact supported the legality of a nation attacking a terrorist base from which attack on its
citizens are being launched, if the host country is either unwilling or unable to stop the terrorists from using its
territory for that purpose.”).
219

For example, Michael Grant, Letter dated 31 March 2015 from the Chargé d’affaires a.i. of the Permanent
Mission of Canada to the United Nations addressed to the President of the Security Council, U.N. Doc. S/2015/221(Mar. 31, 2015) (“ISIL also continues to pose a threat not only to Iraq, but also to Canada and Canadians, as well as
to other countries in the region and beyond. In accordance with the inherent rights of individual and collective selfdefence reflected in Article 51 of the United Nations Charter, States must be able to act in self-defence when thegovernment of the State where a threat is located is unwilling or unable to prevent attacks emanating from its
territory.”); Russian Federation President V.V. Putin, Statement of Sept. 11, 2002, annexed to Sergey Lavrov, Letter
dated 11 September 2002 from the Permanent Representative of the Russian Federation to the United Nations
addressed to the Secretary-General, U.N. Doc. S/2002/1012 (Sept. 11, 2002) (“The Russian Federation firmly
adheres to its international obligations and respects the sovereignty and integrity of other States, but it demands thesame attitude towards itself. If the Georgian leadership is unable to establish a security zone in the area of the
Georgian-Russian border, continues to ignore United Nations Security Council resolution 1373 (2001) of 28
September 2001, and does not put an end to the bandit sorties and attacks on adjoining areas in the RussianFederation, we reserve the right to act in accordance with Article 51 of the Charter of the United Nations, which lays
down every Member State’s inalienable right of individual or collective self-defence. … None of this will benecessary, no measures or special operations will be needed if the Georgian leadership actually controls its own
territory, carries out international obligations in combating international terrorism and prevents possible attacks byinternational terrorists from its territory against the territory of the Russian Federation.”); Hayati Güven, Letter
Dated 24 July 1995 from the Charge D’affaires A.I. of the Permanent Mission of Turkey to the United Nations
Addressed to the President of the Security Council, U.N. Doc. S/1995/605 (Jul. 24, 1995) (“As Iraq has not beenable to exercise its authority over the northern part of its country since 1991 for reasons well known, Turkey cannot
ask the Government of Iraq to fulfil its obligation, under international law, to prevent the use of its territory for thestaging of terrorist acts against Turkey. Under these circumstances, Turkey’s resorting to legitimate measures which
are imperative to its own security cannot be regarded as a violation of Iraq’s sovereignty. No country could be
expected to stand idle when its own territorial integrity is incessantly threatened by blatant cross-border attacks of aterrorist organization based and operating from a neighbouring country, if that country is unable to put an end tosuch attacks. The recent operations of limited time and scope were carried out within this framework, as explained
to the world public.”); Statement of Mr. Blum, representative of Israel, in U.N. Doc. S/PV.2292 ¶¶54-56 (“Membersof the [Security] Council need scarcely be reminded that under international law, if a State is unwilling or unable toprevent the use of its territory to attack another State, that latter state is entitled to take all necessary measures in its
own defence. The Government of Israel is in fact exercising the inherent right of self-defence enjoyed by every
sovereign State, a right also preserved under Article 51 of the Charter of the United Nations. Israel’s response to
PLO terror is what any self-respecting sovereign State would do in similar circumstances. I must stress that Israel’s
actions are specifically directed against concentrations of PLO terrorists in Lebanon.”).
220

Daniel Bethlehem, Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or
Actual Armed Attack by Nonstate Actors, 106 AJIL 1, 7 (2012) (“In such circumstances, in addition to the preceding
requirements, there must also be a strong, reasonable, and objective basis for concluding that the seeking of consent
would be likely to materially undermine the effectiveness of action in self-defense, whether for reasons of
disclosure, delay, incapacity to act, or otherwise, or would increase the risk of armed attack, vulnerability to futureattacks, or other development that would give rise to an independent imperative to act in self-defense.”).

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International law does not prohibit States from assisting other States in their armed conflicts
against non-State armed groups. To the extent those States intend to conduct hostilities or
actually do so, they may incur obligations under the law of war. 221 For example, a State that is
conducting detention operations would have obligations to treat detainees (e.g., persons
belonging to non-State armed groups) humanely regardless of whether it considers itself a party
to the non-international armed conflict.
17.18.4 Liability of Private Individuals for Supporting Non-State Armed Groups. Private
individuals who support non-State armed groups that are preparing for, or engaged in, hostilities
against a State may be subject to prosecution. Such conduct may be criminalized under a variety
of domestic laws relating to treason, hostile expeditions against other States, material support toterrorism, or piracy. 222
The State that is threatened by such activities may prosecute such individuals for treason
or other offenses against the State.
States in which such conduct occurs may seek to prosecute such conduct for a variety ofreasons, including its duties under international law to refrain from materially supporting
hostilities against another State, and to repress terrorism or piracy.

221

Refer to § 3.4 (When Jus in Bello Rules Apply).

222

Refer to § 4.18.5 (Private Persons Who Engage in Hostilities and the Law of War).

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XVIII – Implementation and Enforcement of the Law of War
Chapter Contents
18.1 Introduction
18.2 Prudential Reasons Supporting the Implementation and Enforcement of the
Law of War
18.3 Duties of Individual Members of the Armed Forces
18.4 Commanders’ Duty to Implement and Enforce the Law of War
18.5 Role of Judge Advocates and Legal Advisers18.6 Dissemination, Study, and Other Measures to Facilitate Understanding ofDuties Under the Law of War
18.7 Instructions, Regulations, and Procedures to Implement and Enforce the Law
of War
18.8 Considering Law of War Obligations in the Planning of Military Operations
18.9 States’ Obligations With Respect to Violations of the Law of War
18.10 Methods for Responding to Violations of the Law of War by the Enemy
18.11 Protests and Demands to the Offending Party
18.12 U.N. Security Council and Enforcement of the Law of War
18.13 National Investigations of Alleged Violations of the Law of War
18.14 International Mechanisms to Investigate Alleged Law of War Violations
18.15 Protecting Power and Other Neutral Intermediaries
18.16 Compensation for Violations of the Law of War
18.17 Retorsion
18.18 Reprisals
18.19 Discipline in National Jurisdictions of Individuals for Violations of the Law
of War
18.20 Prosecution in International and Hybrid Courts
18.21 Limits on the Punishment of Individuals Under the Law of War
18.22 Principles of Individual Criminal Responsibility for Crimes Under
International Law
18.23 Theories of Individual Criminal Liability
18.1 INTRODUCTION
This Chapter addresses the implementation and enforcement of the law of war. It
discusses activities that are undertaken in order to prevent violations of the law of war (such as
training and the promulgation of policies, regulations, and orders). It discusses activities to
respond to alleged violations, such as reporting, investigation, and corrective or punitive
measures.
18.1.1 DoD Policy on Implementing and Enforcing the Law of War. DoD policy has
addressed the policies and responsibilities for ensuring DoD compliance with the law of war

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obligations of the United States. 1 It has been DoD policy that:•

Members of the DoD Components comply with the law of war during all armed conflicts,
however such conflicts are characterized, and in all other military operations; 2•The law of war obligations of the United States are observed and enforced by the DoD
Components and DoD contractors assigned to, or accompanying, deployed armed
forces; 3•

An effective program to prevent violations of the law of war is implemented by the DoD
Components. 4
These policies follow a longer tradition of compliance with the law of war by U.S. armed

forces.

51See, e.g., DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶1 (May 9, 2006, Certified Current as of Feb. 22,2011) (“This Directive: 1.1. Reissues Reference (a) to update the policies and responsibilities ensuring DoD
compliance with the law of war obligations of the United States.”); DOD DIRECTIVE 5100.77, DoD Program for the
Implementation of the Law of War, ¶I (Nov. 5, 1974) (“This Directive provides policy guidance and assigns
responsibilities within the Department of Defense for a program to insure implementation of the law of war.”).
2

See, e.g., DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶4.1 (May 9, 2006, Certified Current as of Feb.
22, 2011) (“Members of the DoD Components comply with the law of war during all armed conflicts, however suchconflicts are characterized, and in all other military operations.”); DOD DIRECTIVE 5100.77, DoD Law of War
Program, ¶5.3 (Dec. 9, 1998) (“The Heads of the DoD Components shall: 5.3.1. Ensure that the members of theirDoD Components 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.”); DOD DIRECTIVE 5100.77, DoD
Law of War Program, ¶E(1)(a) (Jul. 10, 1979) (“The Armed Forces of the United States shall comply with the lawof war in the conduct of military operations and related activities in armed conflict, however such conflicts arecharacterized.”); DOD DIRECTIVE 5100.77, DoD Program for the Implementation of the Law of War, ¶V(A) (Nov. 5,1974) (“The Armed Forces of the United States will comply with the law of war in the conduct of military
operations and related activities in armed conflict however such conflicts are characterized.”).
3

DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶4.2 (May 9, 2006, Certified Current as of Feb. 22, 2011)(“The law of war obligations of the United States are observed and enforced by the DoD Components and DoD
contractors assigned to or accompanying deployed Armed Forces.”).
4
DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶4.3 (May 9, 2006, Certified Current as of Feb. 22, 2011)(“An effective program to prevent violations of the law of war is implemented by the DoD Components.”).
5See, e.g., 1956 FM 27-10 (Change No. 1 1976) ¶7 (“In consequence, treaties relating to the law of war have a force
equal to that of laws enacted by the Congress. Their provisions must be observed by both military and civilian
personnel with the same strict regard for both the letter and spirit of the law which is required with respect to theConstitution and statutes enacted in pursuance thereof. … The unwritten or customary law of war is binding upon all
nations. It will be strictly observed by United States forces, subject only to such exceptions as shall have been
directed by competent authority by way of legitimate reprisals for illegal conduct of the enemy (see par. 497).”);
U.S. Navy Regulations Article 0505 (1948) (“Observance of International Law. 1. In the event of war between
nations with which the United States is at peace, a commander shall observe, and require his command to observe,
the principles of international law. He shall make every effort consistent with those principles to preserve andprotect the lives and property of citizens of the United States wherever situated. 2. When the United States is at war,
he shall observe, and require his command to observe, the principles of international law and the rules of humane
warfare. He shall respect the rights of neutrals as prescribed by international law and by pertinent provisions oftreaties, and shall exact a like observance from neutrals.”).

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18.1.2 National Obligations to Implement and Enforce the Law of War. States, as Parties
to treaties, have certain obligations to implement and enforce those treaties. These obligations
may be written as a general obligation to undertake to respect and to ensure respect for the treaty.
In addition, treaties may provide for more specific obligations to help implement andenforce their provisions, such as obligations with respect to violations of the treaty or
dissemination of the text of the treaty.
Different treaties may have different mechanisms to implement and to ensure compliancewith that treaty.
18.1.2.1 General Treaty Obligations to Take Appropriate Actions to Implementand Enforce the Treaty – 1949 Geneva Conventions. Parties to the 1949 Geneva Conventions
undertake to respect and ensure respect for the conventions in all circumstances. 6 This is a
general obligation to take the measures that the State deems appropriate in order to fulfill its
obligations under the conventions. Although this provision does not reflect an obligation toensure implementation of the conventions by other States or parties to a conflict, the UnitedStates, as a matter of policy, often seeks to promote adherence to the law of war by others. 7
18.1.2.2 General Treaty Obligations to Take Appropriate Actions to Implementand Enforce the Treaty – AP III. Parties to AP III undertake to respect and to ensure respect for
AP III in all circumstances. 8
18.1.2.3 General Treaty Obligations to Take Appropriate Actions to Implementand Enforce the Treaty – CCW Amended Mines Protocol. Parties to the CCW Amended Mines
Protocol shall take all appropriate steps, including legislative and other measures, to prevent andsuppress violations of that Protocol by persons or on territory under its jurisdiction or control. 9
18.1.2.4 General Treaty Obligations to Take Appropriate Actions to Implement
6

GWS art. 1 (“The High Contracting Parties undertake to respect and to ensure respect for the present Convention
in all circumstances.”); GWS-SEA art. 1 (same); GPW art. 1 (same); GC art. 1 (same).

7

Brian Egan, Legal Adviser, Department of State, Remarks to the American Society of International Law:
International Law, Legal Diplomacy, and the Counter-ISIL Campaign, Apr. 1, 2016 (“Some have argued that the
obligation in Common Article 1 of the Geneva Conventions to ‘ensure respect’ for the Conventions legally requires
us to undertake such steps and more vis-à-vis not only our partners, but all States and non-State actors engaged inarmed conflict. Although we do not share this expansive interpretation of Common Article 1, as a matter of policy,
we always seek to promote adherence to the law of armed conflict generally and encourage other States to do thesame. As a matter of international law, we would look to the law of State responsibility and our partners’
compliance with the law of armed conflict in assessing the lawfulness of our assistance to, and joint operations with,those military partners.”).

8

AP III art. 1(1) (“The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all
circumstances.”).
9

CCW AMENDED MINES PROTOCOL art. 14 (“1. Each High Contracting Party shall take all appropriate steps,
including legislative and other measures, to prevent and suppress violations of this Protocol by persons or on
territory under its jurisdiction or control. 2. The measures envisaged in paragraph I of this Article include
appropriate measures to ensure the imposition of penal sanctions against persons who, in relation to an armed
conflict and contrary to the provisions of this Protocol, wilfully kill or cause serious injury to civilians and to bringsuch persons to justice.”).

1071

and Enforce the Treaty – Child Soldiers Protocol. Each Party to the Child Soldiers Protocol
shall take all necessary legal, administrative, and other measures to ensure the effective
implementation and enforcement of the provisions of this Protocol within its jurisdiction. 10
18.1.3 International or Multi-National Actions to Implement and Enforce the Law ofWar. States sometimes take actions on the international or multinational level to implement andenforce the law of war.
For example, NATO Standardization Agreements might specify common procedures toimplement obligations under the 1949 Geneva Conventions for the treatment of POWs. States
may investigate alleged violations of the law of war through international commissions ofinquiry. 11 As another example, States may establish international criminal tribunals to try enemy
belligerents. 12
18.1.4 Law of War Obligations and International Organizations. Internationalorganizations, such as the United Nations or NATO, are not Parties to law of war treaties, suchas the 1949 Geneva Conventions. Thus, these organizations do not have obligations under thosetreaty instruments. However, the member States of international organizations are Parties tothese treaties, and as a general matter, a State’s obligations under law of war treaties would not
be rendered inapplicable simply because its forces are part of an international or multinational
force or are acting through an international organization.
18.1.5 Application of Implementation and Enforcement Measures Outside the Context ofInternational Armed Conflict. Certain treaty obligations with respect to the implementation andenforcement of the law of war may not apply outside the context of international armed conflict.
Nonetheless, many of the domestic law, policies, and regulations that are used to
implement and enforce the law of war are applicable outside the context of international armed
conflict. Thus, for example, many of the provisions of the Uniform Code of Military Justice may
be used to punish crimes that have been committed in the context of a non-international armed
conflict or a military operation other than war.
18.2 PRUDENTIAL REASONS SUPPORTING THE IMPLEMENTATION AND ENFORCEMENT OF THE LAW
OF WAR
The implementation and enforcement of the law of war have been supported by strong
practical considerations. Compliance with the law of war is not only legally required but also in

10

Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict,art. 6(1), May 25, 2000, 2173 UNTS 222, 238 (“Each State Party shall take all necessary legal, administrative andother measures to ensure the effective implementation and enforcement of the provisions of this Protocol within its
jurisdiction.”).
11Refer to § 18.14 (International Mechanisms to Investigate Alleged Law of War Violations).

12

Refer to § 18.20.1 (Post-World War II International Military Tribunals).

1072the strong self-interest of everyone subject to the law of war. 13
18.2.1 Reinforcing Military Effectiveness. Conducting military operations in accordancewith the law of war is not fighting with one hand tied behind one’s back. Rather, law of war
principles and rules are consistent with military doctrines for a profession of arms that are thebasis for effective combat operations. 14
For example, various military doctrines, such as accuracy of targeting, concentration ofeffort, maximization of military advantage, conservation of resources, avoidance of excessive
collateral damage, and economy of force are not only fully consistent with compliance with thelaw of war, but also reinforce its observance. Use of indiscriminate and excessive force is costly,
highly inefficient, and a waste of scarce resources. 15
Similarly, the necessity of discipline for an effective armed force reinforces theimplementation and enforcement of the law of war. An undisciplined force is more likely tocommit law of war violations, such as pillaging, detainee abuse, or atrocities against the civilian
population. 16
18.2.2 Encouraging Reciprocal Adherence by the Adversary. The requirement to comply
with many law of war rules (such as the obligation to treat detainees humanely) does not depend
on whether the enemy complies with that rule. 17
Nevertheless, reciprocity may be a critical factor in the actual observance of the law ofwar. Adherence to law of war rules in conducting military operations can encourage anadversary also to comply with those law of war rules. 18 For example, humane treatment ofenemy persons detained by U.S. forces can encourage enemy forces to treat detained U.S.

13

1976 AIR FORCE PAMPHLET 110-31 ¶1-6 (“The law of armed conflict developed from an amalgam of social,political and military considerations. The primary basis for the law, and the principal reason for its respect, is that it
generally serves the self-interest of everyone subject to its commands.”).
14

Christopher Greenwood, Historical Development and Legal Basis, in DIETER FLECK, THE HANDBOOK OF
HUMANITARIAN LAW IN ARMED CONFLICTS 33 (¶132) (1999) (“It should not be assumed, however, thathumanitarian law and military requirements will necessarily be opposed to one another. On the contrary, most rulesof humanitarian law reflect good military practice, and adherence by armed forces to those rules is likely to reinforce
discipline and good order within the forces concerned.”).
15

1976 AIR FORCE PAMPHLET 110-31 ¶1-6b (“More importantly, various military doctrines, such as accuracy oftargeting, concentration of effort, maximization of military advantage, conservation of resources, avoidance ofexcessive collateral damage, and economy of force are not only fully consistent with compliance with the law ofarmed conflict but reinforce its observance. Use of excessive force is not only costly and highly inefficient—and to
be avoided for those reasons—it may also be a waste of scarce resources.”).
16Compare § 4.18.3 (Private Persons Who Engage in Hostilities – Lack of the Privileges of Combatant Status).

17

Refer to § 3.6 (Reciprocity and Law of War Rules).

18

1976 AIR FORCE PAMPHLET 110-31 ¶10-1b (“The most important relevant treaties, the 1949 Geneva Conventions
for the Protection of War Victims, are not formally conditioned on reciprocity. … Yet reciprocity is an implied
condition in other rules and obligations including generally the law of armed conflict. It is moreover a critical factor
in actual observance of the law of armed conflict. Reciprocity is also explicitly the basis for the doctrine ofreprisals.”).

1073

persons humanely. 19 Conversely, the maltreatment of detained personnel by U.S. forces may
have a dramatic and negative effect on how U.S. personnel in the hands of the enemy are treated
and the degree to which the law of war is respected generally. 20
18.2.3 Maintaining Public Support and Political Legitimacy. The implementation andenforcement of the law of war are also supported by the fact that violations of the law of war arecounterproductive to the political goals sought to be achieved by military operations. 21 For
example, violations of the law of war in counter-insurgency operations may diminish the supportof the local population. Violations of the law of war may also diminish the support of the
populace in democratic States, including the United States and other States that would otherwise
support or participate in coalition operations. Violations of the law of war committed by one
side may encourage third parties to support the opposing side.
18.3 DUTIES OF INDIVIDUAL MEMBERS OF THE ARMED FORCES
Each member of the armed services has a duty to: (1) comply with the law of war ingood faith; and (2) refuse to comply with clearly illegal orders to commit violations of the law ofwar.
18.3.1 Comply With the Law of War in Good Faith. Each member of the armed forces
has a duty to comply with the law of war in good faith. 22 In practice, the obligation of individual
service members to comply with the law of war in good faith is met when service members: (1)perform their duties as they have been trained and directed; and (2) apply the training on the lawof war that they have received. 23
The duty of each individual service member to comply with the law of war in good faithrests within a broader framework of law of war implementation by the U.S. armed forces.
18.3.1.1 Implementation of International Obligations by Persons With the
Authority to Make the Necessary Decisions and Judgments Required by International Law. As ageneral matter, the persons within a party to a conflict who are responsible for implementing an
obligation are those persons with the authority to make the necessary decisions and judgments
required by that international obligation. It is not the case that every individual who belongs to a
party to the conflict is responsible for implementing every obligation held by that party.
19

Refer to § 9.2.5 (Reciprocity in the Treatment of POWs).

20

United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1274 (“It isalmost inevitable that the murder of innocent members of the population, including the relatives and friends of the
franc-tireurs, would generate a hatred that was bound to express itself in counterreprisals and acts of atrocity.”).
21

1976 AIR FORCE PAMPHLET 110-31 ¶1-6a (“However, the application of military force has never been an end in
itself. In many respects, the overall political context has increased in importance in recent years although thatpolitical context has always influenced the means of destruction or tactics used in warfare. Violations of the law ofarmed conflict have been recognized as counterproductive to the political goals sought to be achieved. For example,
they may arouse public opinion and induce neutrals to become involved in the conflict on the adversary’s side, suchas the entry of the United States into World War I.”).
22

Refer to § 1.10.2 (Force of the Law of War Under U.S. Domestic Law).

23

Refer to § 18.6.2 (Special Instruction or Training).

1074

For example, certain law of war obligations only apply to commanders or to specialized
units, such as units providing medical care, conducting detention operations, or engaging in theprotection of cultural property. As a case in point, although the specific responsibilities that
individual combatants have to implement the principle of proportionality will depend on theirrole and assigned military duties in planning or conducting an attack, commanders are
responsible for making the decisions and judgments required by the principle of proportionality
in conducting attacks. 24
18.3.1.2 Practical Ways in Which the Requirement to Comply With the Law of
War in Good Faith is Met by Individual Service Members. Individual service members are notexpected to be experts in the law of war. The burden on individual members of the armed forces
to know the relevant requirements of the law of war is addressed in practice through thefollowing ways.
First, service members should receive training commensurate with their duties on therelevant requirements of the law of war.
Second, law of war requirements have also been incorporated into domestic law, policy,
regulations, and orders, which often are reviewed by counsel for consistency with the law ofwar. 25 Moreover, in most cases, the requirements and standards in applicable policies,
regulations, and orders will often impose higher standards than the requirements of the law ofwar. 26
Third, when appropriate, service members should ask questions through appropriate
channels and consult with the command legal adviser on issues relating to the law of war.
18.3.2 Refuse to Comply With Clearly Illegal Orders to Commit Law of War Violations.
Members of the armed forces must refuse to comply with clearly illegal orders to commit law of
war violations. In addition, orders should not be construed to authorize implicitly violations oflaw of war.
18.3.2.1 Clearly Illegal Orders to Commit Law of War Violations. The
requirement to refuse to comply with orders to commit law of war violations applies to orders to
perform conduct that is clearly illegal or orders that the subordinate knows, in fact, are illegal.
For example, orders to fire upon the shipwrecked would be clearly illegal. 27 Similarly, orders to24

Refer to § 5.10.2 (Responsibility of Commanders for Implementing the Principle of Proportionality in Conducting
Attacks).
25

Refer to § 18.7 (Instructions, Regulations, and Procedures to Implement and Enforce the Law of War).

26

Refer to § 18.7.2.3 (Setting Higher Standards as a Matter of Policy).

27

Judgement in Case of Lieutenants Dithmar and Boldt, Hospital Ship “Llandovery Castle” (Second Criminal
Senate of the Imperial Court of Justice, Germany, Jul. 16, 1921), reprinted in 16 AJIL, 708, 721-22 (1922) (“It is
certainly to be urged in favor of the military subordinates, that they are under no obligation to question the order of
their superior officer, and they can count upon its legality. But no such confidence can be held to exist, if such anorder is universally known to everybody, including also the accused, to be without any doubt whatever against thelaw. This happens only in rare and exceptional cases. But this case was precisely one of them, for in the present
instance, it was perfectly clear to the accused that killing defenceless people in the life-boats could be nothing else
but a breach of the law. As naval officers by profession they were well aware, as the naval expert Saalwiachter has

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kill defenseless persons who have submitted to and are under effective physical control would
also be clearly illegal. 28 On the other hand, the duty not to comply with orders that are clearly
illegal would be limited in its application when the subordinate is not competent to evaluate
whether the rule has been violated. 29
Subordinates are not required to screen the orders of superiors for questionable points oflegality, and may, absent specific knowledge to the contrary, presume that orders have been
lawfully issued. 30
18.3.2.2 Commands and Orders Should Not Be Understood as Implicitly
Authorizing Violations of the Law of War. Commands and orders should not be understood as
implicitly authorizing violations of the law of war where other interpretations are reasonably
available. 31

strikingly stated, that one is not legally authorized to kill defenceless people. They well knew that this was the casehere. They quickly found out the facts by questioning the occupants in the boats when these were stopped. They
could only have gathered, from the order given by Patzig, that he wished to make use of his subordinates to carry out
a breach of the law. They should, therefore, have refused to obey.”).
28

United States v. Calley, 22 U.S.C.M.A. 534, 543-44 (C.M.A. 1973) (“In the stress of combat, a member of thearmed forces cannot reasonably be expected to make a refined legal judgment and be held criminally responsible if
he guesses wrong on a question as to which there may be considerable disagreement. But there is no disagreement
as to the illegality of the order to kill in this case. For 100 years, it has been a settled rule of American law that evenin war the summary killing of an enemy, who has submitted to, and is under, effective physical control, is murder.”).

29

Refer to § 5.10.2.3 (Duty Not to Comply With Clearly Illegal Orders and the Principle of Proportionality).

30

United States v. von Leeb, et al. (The High Command Case), XI TRIAL OF WAR CRIMINALS BEFORE THE NMT
510-11 (“Orders are the basis upon which any army operates. It is basic to the discipline of an army that orders areissued to be carried out. Its discipline is built upon its principle. Without it, no army can be effective and it iscertainly not incumbent upon a soldier in a subordinate position to screen the orders of superiors for questionable
points of legality. Within certain limitations, he has the right to assume that the orders of his superiors and the state
which he serves and which are issued to him are in conformity with international law. … He has the right topresume, in the absence of specific knowledge to the contrary, that the legality of such orders has been properly
determined before their issuance. He cannot be held criminally responsible for a mere error in judgment as todisputable legal questions.”); WINTHROP, MILITARY LAW & PRECEDENTS 296-97 (“But for the inferior to assume todetermine the question of the lawfulness of an order given him by a superior would of itself, as a general rule,amount to insubordination, and such an assumption carried into practice would subvert military discipline. Where
the order is apparently regular and lawful on its face, he is not to go behind it to satisfy himself that his superior has
proceeded with authority, but is to obey it according to its terms, the only exceptions recognized to the rule ofobedience being cases of orders so manifestly beyond the legal power or discretion of the commander as to admit of
no rational doubt of their unlawfulness. Except in such instances of palpable illegality, which must be of rareoccurrence, the inferior should presume that the order was lawful and authorized and obey it accordingly, and inobeying it can scarcely fail to be held justified by a military court … .”).
31

See Basic Course in the Geneva Conventions of 1949 and Hague Convention No. IV of 1907: Lesson Plan—
Second Hour, ¶5b, Appendix A in DEPARTMENT OF THE ARMY SUBJECT SCHEDULE 27-1, The Geneva Conventionsof 1949 and Hague Convention No. IV of 1907, 11 (Aug. 29, 1975) (“You should not presume that an order iscriminal. If you think it is criminal, it is probably because the order is unclear. For example, while on patrol wecapture a prisoner. On our return the patrol leader questions him. When the patrol leader finishes the questioning hetells you ‘get rid of that man.’ That order is not clear. The patrol leader undoubtedly means to take the man to the
Detainee Collection Point. … Rather than presume that an unclear order directs you to commit a crime, ask yoursuperior for a clarification of the order. Above all, remember that if you are the leader, make your order clear and

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For example, if a commander issues an order to attack a town, one should assume that theorder directs attacks on military objectives located in that area. 32 Similarly, speeches bycommanders before combat operations to rally members of their command should not be
understood to authorize implicitly law of war violations against the enemy. 33
18.4 COMMANDERS’ DUTY TO IMPLEMENT AND ENFORCE THE LAW OF WAR
Military commanders have a duty to take appropriate measures as are within their power
to control the forces under their command for the prevention of violations of the law of war. 34
For example, commanders have obligations to take appropriate measures to prevent pillage andunderstandable. Don’t put your subordinates in the position where they may think you are giving a criminal
order.”).
For example, Prosecutor v. Gotovina and Markač, ICTY Appellate Chamber, IT-06-09-A, Judgment, ¶77 (Nov.
16, 2012) (“More specifically, the Trial Chamber relied on the Impact Analysis to discount Witness Rajčić’s
assertion that the 2 August Order called for shelling only lawful military targets. In addition, neither Witness
Konings nor Witness Corn suggested that the only interpretation of the 2 August Order was as an instruction tocommence indiscriminate attacks on the Four Towns. Given that the relevant portion of the 2 August Order was
relatively short, and did not explicitly call for unlawful attacks on the Four Towns, the text of the 2 August Ordercould not, alone, reasonably be relied upon to support a finding that unlawful artillery attacks took place.”).
32

33

For example, L.C. GREEN, SUPERIOR ORDERS IN NATIONAL AND INTERNATIONAL LAW 131-32 (1976) (“Thecontroversy arose over Patton’s prepared remarks, which included these statements: ‘The fact we are operating inenemy country does not permit us to forget our American tradition of respect for private property, non-combatants,
and women. …Attack rapidly, ruthlessly, viciously and without rest, and kill even civilians who have the stupidity tofight us.’ Several days after the operation began, during which time the fighting was extremely fierce, a Captain
Compton, who had lost several of his men, lined up forty-three captured Germans, some of whom were wearing
civilian clothes, and had them executed by machine gun. At about the same time and in the same general location, aSergeant West (of another company) shot and killed thirty-six Germans whom he was escorting to the prisoner-ofwar cage in the rear. When General Patton learned of these incidents, he ordered both men court-martialed on
charges of premeditated murder. At their trials, the two men asserted as a defence the orders issued by General
Patton on June 27, 1943 in his preparatory speech. … The defence’s assertions prompted a subsequent inquiry into
the speech given by Patton in which he was ultimately exonerated after producing the prepared text of the speechand delivering it orally to a board of investigating officers. Captain Compton and Sergeant West, however, wereconvicted as charged.”) (first ellipsis in original).
34

See In re Yamashita, 327 U.S. 1, 16 (1946) (“The question, then, is whether the law of war imposes on an army
commander a duty to take such appropriate measures as are within his power to control the troops under his
command for the prevention of the specified acts which are violations of the law of war and which are likely toattend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal
responsibility for his failure to take such measures when violations result. … These provisions [of the Hague IV
Reg., the Hague X, and the 1929 GWS] plainly imposed on petitioner, who at the time specified was military
governor of the Philippines as well as commander of the Japanese forces, an affirmative duty to take such measures
as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian
population. This duty of a commanding officer has heretofore been recognized, and its breach penalized by our own
military tribunals.”); Elihu Root, Secretary of War, Memorandum Transmitting the Record and Proceedings of the
Trial of Brigadier General Jacob H. Smith, Jul. 12, 1902, reprinted in H.C. Corbin, Adjutant General, Major
General, U.S. Army, General Orders, No. 80, 2, 3 Jul. 16, 1902, GENERAL ORDERS AND CIRCULARS OF THE
ADJUTANT GENERAL’S OFFICE, 1902 (1903) (“It is the duty of a general officer whose age and experience havebrought him to high command not to incite his subordinates to acts of lawless violence, but to so explain to them theapplication of the laws of war and the limitations upon their conduct as to prevent transgressions upon their part andsupplement their comparative inexperience by his wise control. In this General Smith has signally failed, and forthis he has been justly convicted.”).

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to protect the wounded, sick, and shipwrecked within their control. 35
18.4.1 Background on Commander’s Duties to Implement and Enforce the Law of War.
The law of war presupposes that its violation is to be avoided through the control of theoperations of war by commanders who are to some extent responsible for their subordinates. 36
One of the requirements for armed forces to receive the privileges of combatant status is thatthey operate under a responsible command. 37 In addition, law of war treaties have specified thatcommanders must take appropriate measures to ensure that the provisions of those treaties areobserved. 38
18.4.2 Discipline of Subordinates. In carrying out their duties to implement and enforce
the law of war, commanders may use disciplinary or penal measures. 39 Under international law,commanders have discretion about how to implement and enforce their law of war obligations;
there is no absolute or automatic requirement under international law to punish particularoffenders within their armed forces in a specific way. 40
18.4.3 Duty to Investigate Reports of Alleged Law of War Violations. Commanders
have a duty to investigate reports of alleged law of war violations committed by persons under35

Refer to § 5.17.4 (Pillage Prohibited); § 7.4 (Search, Collection, and Affirmative Protection of the Wounded, Sick,
Shipwrecked, and Dead).
36

In re Yamashita, 327 U.S. 1, 15 (1946) (“It is evident that the conduct of military operations by troops whose
excesses are unrestrained by the orders or efforts of their commander would almost certainly result in violations
which it is the purpose of the law of war to prevent. Its purpose to protect civilian populations and prisoners of war
from brutality would largely be defeated if the commander of an invading army could, with impunity, neglect to takereasonable measures for their protection. Hence, the law of war presupposes that its violation is to be avoided
through the control of the operations of war by commanders who are to some extent responsible for theirsubordinates.”). Consider AP I art. 87(1) (“The High Contracting Parties and the Parties to the conflict shall require
military commanders, with respect to members of the armed forces under their command and other persons under
their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the[Geneva] Conventions and of this Protocol.”).
37

Refer to § 4.6.3 (Being Commanded by a Person Responsible for His or Her Subordinates).

38

See, e.g., GWS art. 45 (“Each Party to the conflict, acting through its Commanders-in-Chief, shall ensure thedetailed execution of the preceding Articles and provide for unforeseen cases, in conformity with the generalprinciples of the present Convention.”); GWS-SEA art. 46 (same). Consider HAGUE X art. 19 (“The Commandersin-chief of the belligerent fleets must see that the above Articles are properly carried out; they will have also to see
to cases not covered thereby, in accordance with the instructions of their respective Governments and in conformity
with the general principles of the present Convention.”).
39

Consider AP I art. 87(3) (“The High Contracting Parties and Parties to the conflict shall require any commander
who is aware that subordinates or other persons under his control are going to commit or have committed a breachof the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of theConventions or this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators
thereof.”). Refer to § 18.19 (Discipline in National Jurisdictions of Individuals for Violations of the Law of War).

40

United States v. von Leeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT
524 (“With regard to the second aspect of this order, that is the obligation to prosecute soldiers who commit
offences against the indigenous population, this obligation as a matter of International Law is considered doubtful.
The duty imposed upon a military commander is the protection of the civilian population. Whether this protection
be assured by the prosecution of soldiers charged with offences against the civilian population, or whether it beassured by disciplinary measures or otherwise, is immaterial from an international standpoint.”).

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their command or against persons to whom they have a legal duty to protect. 41
18.4.4 Issuance of Guidance, Training of Subordinates, and Other Preventive orCorrective Measures. Apart from disciplinary measures, a variety of other measures may beappropriate to prevent or address violations of the law of war by subordinates. For example,
commanders should ensure that members of the armed forces under their command are,commensurate with their duties, aware of their duties under the law of war. 42 After violations
have occurred, retraining personnel or revising procedures may be appropriate, particularly
where the underlying facts or nature of the violations do not warrant punitive measures.
18.5 ROLE OF JUDGE ADVOCATES AND LEGAL ADVISERS
18.5.1 Legal Advisers. The United States has provided for legal advisers to advise
military commanders on the law of war. 43 For example, DoD policy has required that each headof a DoD component make qualified legal advisers available at all levels of command to provide
advice about law of war compliance during planning and execution of exercises and operations. 44
18.5.1.1 Review of Plans, Policies, Directives, and Rules of Engagement by Legal
Advisers. DoD policy has required that commanders of the combatant commands ensure that allplans, policies, directives, and rules of engagement, and those of subordinate commands andcomponents, are reviewed by legal advisers to ensure their consistency with the law of war and
DoD policy on the law of war. 45
18.5.1.2 Supervision of Administration of Programs to Address Enemy Violationsof the Law of War. DoD policy has required that commanders of the combatant commands
41

Refer to § 18.13 (National Investigations of Alleged Violations of the Law of War).

42

Consider AP I art. 87(2) (“In order to prevent and suppress breaches, High Contracting Parties and Parties to theconflict shall require that, commensurate with their level of responsibility, commanders ensure that members of thearmed forces under their command are aware of their obligations under the Conventions and this Protocol.”).

43

Consider AP I art. 82 (“The High Contracting Parties at all times, and the Parties to the conflict in time of armed
conflict, shall ensure that legal advisers are available, when necessary, to advise military commanders at theappropriate level on the application of the Conventions and this Protocol and on the appropriate instruction to begiven to the armed forces on this subject.”).

44

DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶5.1 (May 9, 2006, Certified Current as of Feb. 22, 2011)(“The Heads of the DoD Components shall: … [¶5.7.3] Make qualified legal advisers at all levels of commandavailable to provide advice about law of war compliance during planning and execution of exercises and operations;and institute and implement programs to comply with the reporting requirements established in section 6.”); DOD
DIRECTIVE 5100.77, DoD Law of War Program, ¶5.3 (Dec. 9, 1998) (“The Heads of the DoD Components shall: …
[¶5.3.3] “Ensure that qualified legal advisers are immediately available at all levels of command to provide advice
about law of war compliance during planning and execution of exercises and operations; and institute andimplement programs to comply with the reporting requirements established in section 6., below.”).
45

DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶5.11 (May 9, 2006, Certified Current as of Feb. 22,2011) (“The Commanders of the Combatant Commands shall: …[¶5.11.8] Ensure all plans, policies, directives, andrules of engagement issued by the command and its subordinate commands and components are reviewed by legal
advisers to ensure their consistency with this Directive and the law of war.”); DOD DIRECTIVE 5100.77, DoD Law of
War Program, ¶5.8 (Dec. 9, 1998) (“The Commanders of the Combatant Commands shall: … [¶5.8.6] Ensure allplans, policies, directives, and rules of engagement issued by the command and its subordinate commands andcomponents are reviewed by legal advisers to ensure their consistency with this Directive and the law of war.”).

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designate a command legal adviser to supervise the administration of those aspects of thecommand’s program dealing with possible, suspected, or alleged enemy violations of the law ofwar. 46
18.5.1.3 Review of the Acquisition of Weapons. DoD policy has required the legal
review of the intended acquisition of weapons. 47
18.5.2 Law of War Questions During Military Operations. During military operations,questions on the law of war from U.S. forces or coalition partners related to a specific issue
should be referred through the operational chain of command for resolution. It may also beappropriate to refer questions to either the office of the Judge Advocate General of a Military
Department, the Staff Judge Advocate to the Commandant of the Marines Corps, the GeneralCounsel of a Military Department, the Legal Counsel to the Chairman of the Joint Chiefs ofStaff, or the DoD General Counsel.
18.5.3 Role of the DoD Law of War Working Group. The DoD Law of War Working
Group is a DoD internal mechanism for coordination on law of war issues. It consists ofrepresentatives of the General Counsel, Department of Defense; representatives, at the electionof each, of the General Counsel of each Military Department, the Judge Advocate General ofeach Military Department, the Staff Judge Advocate to the Commandant of the Marine Corps,
and the Legal Counsel to the Chairman of the Joint Chiefs of Staff. 48 The DoD Law of War
Working Group develops and coordinates law of war initiatives and issues, manages other law of
war matters as they arise, and provides advice to the DoD General Counsel on legal matters
covered by DoD Directive 2311.01E. 49 This includes the preparation, review, and updating of46

DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶5.11 (May 9, 2006, Certified Current as of Feb. 22,2011) (“The Commanders of the Combatant Commands shall: … [¶5.11.5] Designate the command legal adviser tosupervise the administration of those aspects of this program dealing with possible, suspected, or alleged enemy
violations of the law of war.”); DOD DIRECTIVE 5100.77, DoD Law of War Program, ¶5.8 (Dec. 9, 1998) (“TheCommanders of the Combatant Commands shall: … [¶5.8.3] Designate the command legal adviser to supervise theadministration of those aspects of this program dealing with possible, suspected, or alleged enemy violations of thelaw of war.”).
47

Refer to § 6.2 (DoD Policy of Reviewing the Legality of Weapons).

48

DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶5.1.4 (May 9, 2006, Certified Current as of Feb. 22,2011) (“The General Counsel of the Department of Defense (GC, DoD) shall: Supervise and assign a chair for the
DoD Law of War Working Group, consisting of representatives, at the election by each of the GC, DoD; the GeneralCounsel of each Military Department; the Counsel to the Commandant of the Marine Corps; the Judge Advocate
General of each Military Department; the Staff Judge Advocate to the Commandant of the Marine Corps; and theLegal Counsel to the Chairman of the Joint Chiefs of Staff.”); DOD DIRECTIVE 5100.77, DoD Law of War Program,¶5.1.2 (Dec. 9, 1998) (“The General Counsel of the Department of Defense shall: Establish a DoD Law of War
Working Group consisting of representatives from the General Counsel of the Department of Defense (GC, DoD),
the Legal Counsel to the Chairman of the Joint Chiefs of Staff, the International and Operational Law Division of
the Office of the Judge Advocate General of each Military Department, and the Operational Law Branch of the
Office of the Staff Judge Advocate to the Commandant of the Marine Corps.”).
49

DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶5.1.4 (May 9, 2006, Certified Current as of Feb. 22,2011) (“The DoD Law of War Working Group shall develop and coordinate law of war initiatives and issues;
support the research, preparation, review, and updating of the DoD Law of War Manual; manage other law of war
matters as they arise; and provide advice to the General Counsel on legal matters covered by this Directive.”); DOD
DIRECTIVE 5100.77, DoD Law of War Program, ¶5.1.2 (Dec. 9, 1998) (“The DoD Law of War Working Group shall1080

this manual.
18.6 DISSEMINATION, STUDY, AND OTHER MEASURES TO FACILITATE UNDERSTANDING OF DUTIESUNDER THE LAW OF WAR
A basic step in implementing and enforcing the law of war is to ensure that people
understand its requirements. Certain treaties require that Parties disseminate the text of thattreaty and promote its study, especially by those personnel who are assigned to implement its
obligations.
18.6.1 General Dissemination and Study of Treaties. Certain treaties require that Parties
disseminate the treaty and promote study of that treaty by the armed forces and the civilian
population.
18.6.1.1 Dissemination and Study - 1949 Geneva Conventions. Parties to 1949
Geneva Conventions undertake, in time of peace, as in time of war, to disseminate the text of
those Conventions widely as possible in their respective countries, and in particular, to include
the study of the Conventions in their programs of military and, if possible, civil instruction. 50 In
addition to the entire population of the Party to the GPW, the GPW emphasizes that Parties’
armed forces should know the principles of the GPW. 51 Similarly, the GWS and GWS-Sea
emphasize that the armed fighting forces, medical personnel, and chaplains should know the
principles of those treaties. 52
18.6.1.2 Dissemination and Study - CCW and Protocols. Parties to the CCW also
undertake, in time of peace as in time of armed conflict, to disseminate the CCW and those of its
annexed Protocols by which they are bound as widely as possible in their respective countries
and, in particular, to include the study of these instruments in their program of military
instruction, so that those instruments may become known to their armed forces. 53
develop and coordinate law of war initiatives and issues, manage other law of war matters as they arise, and provide
advice to the General Counsel on legal matters covered by this Directive.”).
50

GC art. 144 (“The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the textof the present Convention as widely as possible in their respective countries, and, in particular, to include the study
thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become
known to the entire population.”).
51

GPW art. 127 (The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the textof the present Convention as widely as possible in their respective countries, and, in particular, to include the study
thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become
known to all their armed forces and to the entire population.”).
52

GWS art. 47 (“The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the textof the present Convention as widely as possible in their respective countries, and, in particular, to include the study
thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become
known to the entire population, in particular to the armed fighting forces, the medical personnel and the chaplains.”);GWS-SEA art. 48 (same).
53

CCW art. 6 (“The High Contracting Parties undertake, in time of peace as in time of armed conflict, todisseminate this Convention and those of its annexed Protocols by which they are bound as widely as possible intheir respective countries and, in particular, to include the study thereof in their programmes of military instruction,
so that those instruments may become known to their armed forces.”).

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18.6.1.3 Dissemination and Study – AP III. Parties to AP III undertake, in time ofpeace as in time of armed conflict, to disseminate this Protocol as widely as possible in theirrespective countries and, in particular, to include the study of it in their program of military
instruction and to encourage the study of it by the civilian population, so that this instrument may
become known to the armed forces and to the civilian population. 54
18.6.1.4 Dissemination and Study – 1954 Hague Cultural Property Convention.
Parties to the 1954 Hague Cultural Property Convention undertake, in time of peace as in time ofarmed conflict, to disseminate the text of the Convention and the Regulations for its execution as
widely as possible in their respective countries. They undertake, in particular, to include thestudy thereof in their programs of military and, if possible, civilian training, so that its principles
are made known to the whole population, especially the armed forces and personnel engaged in
the protection of cultural property. 55
18.6.1.5 Dissemination and Study – Child Soldiers Protocol. Parties to the Child
Soldiers Protocol undertake to make the principles and provisions of the Child Soldiers Protocol
widely known and promoted by appropriate means, to adults and children alike. 56
18.6.2 Special Instruction or Training. In addition to requirements to disseminate and topromote the study of treaties, treaties also require States to ensure that members of the armed
forces who have duties under those treaties are trained commensurate with those duties. DoD
policy has required, as a general matter, that personnel are trained in the law of war
commensurate with their duties. 57
Training may involve not only classroom instruction or individualized study, but also, forexample, unit training exercises. 58

54

AP III art. 7 (“The High Contracting Parties undertake, in time of peace as in time of armed conflict, todisseminate this Protocol as widely as possible in their respective countries and, in particular, to include the study
thereof in their programmes of military instruction and to encourage the study thereof by the civilian population, sothat this instrument may become known to the armed forces and to the civilian population.”).
55

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 25 (“The High Contracting Parties undertake, in time ofpeace as in time of armed conflict, to disseminate the text of the present Convention and the Regulations for its
execution as widely as possible in their respective countries. They undertake, in particular, to include the study
thereof in their programmes of military and, if possible, civilian training, so that its principles are made known to thewhole population, especially the armed forces and personnel engaged in the protection of cultural property.”).
56

Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict,art. 6(2), May 25, 2000, 2173 UNTS 222, 238 (“States Parties undertake to make the principles and provisions of thepresent Protocol widely known and promoted by appropriate means, to adults and children alike.”).
57

DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶5.8 (May 9, 2006, Certified Current as of Feb. 22, 2011)(“The Secretaries of the Military Departments shall develop internal policies and procedures consistent with thisDirective in support of the DoD Law of War Program to: … 5.8.1. Provide directives, publications, instructions, andtraining so the principles and rules of the law of war will be known to members of their respective Departments.
Such knowledge will be commensurate with each individual's duties and responsibilities.”).

58

For example, W. Hays Parks, The United States Military and the Law of War: Inculcating an Ethos, 69 SOCIALRESEARCH 981, 995-96 (2002) (“The Army also maintains four permanent Combat Training Centers (CTCs). The
CTCs-at Ft. Irwin, California; Ft. Polk, Louisiana; Ft. Leavenworth, Kansas; and Hohenfels, Germany-offer avariety of combat and peace operations training for Army units. Three of the CTCs are staffed with a full-time1082

In many cases, training on law of war requirements may not be classified as “law of war”
training, or may be conducted without acknowledgment that the requirements are law of war
requirements. 59 Rather, it may be the case that military forces would be trained according tomilitary doctrines or regulations, which have incorporated law of war requirements and havebeen reviewed for consistency with the law of war. 60
The 1949 Geneva Conventions, the CCW Amended Mines Protocol, and the CCW
Protocol V on Explosive Remnants of War each have specific provisions relating to special
instruction or training.
18.6.2.1 Special Instructions or Training - 1949 Geneva Conventions. The GPW
and GC further provide that the military or other authorities who assume responsibilities for
POWs or protected persons must possess the text of the GPW or the GC and be speciallyinstructed as to its provisions. 61
18.6.2.2 Special Instructions or Training - CCW Amended Mines Protocol. Each
Party to the CCW Amended Mines Protocol shall require that armed forces personnel receive
training commensurate with their duties and responsibilities to comply with the provisions of the
opposing force (the OPFOR), which ‘engages’ the training unit, as well as an observer-controller (OC) contingent.
The OCs observe the mission, mentor the training unit's commanders and soldiers, and direct some of the activity
that occurs during the training exercise. The Army Judge Advocate General's Corps has assigned Army judge
advocates to serve as OCs at each of the CTCs. As part of their duties, these judge advocate OCs script events
involving civilians, who, in turn, interact with the personnel of the unit being trained. These civilians, or roleplayers, serve critical training functions. For example, they may play the part of ICRC personnel who visit a
training unit for the purpose of inspecting the unit's EPW holding facilities. They may also live in full-scale‘villages’ on the battlefield, playing the role of civilians who find themselves caught up in the context of an ongoing
conflict. The judge advocate observer-controllers monitor the training unit's interaction with these civilians,
ensuring that commanders, staff, and individual soldiers understand and meet their law of war obligations. These‘villages’ also include such structures as churches and historic sites. Thus, the unit also is ‘tested’ on law of war
compliance as it relates to targeting and weaponeering considerations. Experience has shown this type of hands-on,
realistic law of war training to be exceptionally effective.”).
59

For example, W. Hays Parks, The United States Military and the Law of War: Inculcating an Ethos, 69 SOCIALRESEARCH 981, 982-83 (2002) (“Other training may cover law of war topics, or address law of war obligations,
without necessarily referring to the law of war. An example is teaching a soldier how to handle an enemy prisonerof war (EPW). Once the prisoner of war has reached an EPW collection point, or a theater EPW camp, military
police personnel working in each will go about their assigned duties to process and care for the prisoner of war. In
all likelihood each soldier handling an EPW will have received training relative to his or her assigned duties. But
the training of each will not necessarily be listed or categorized as ‘law of war training,’ since it is based on doctrineor regulations. Similarly, military medical personnel are trained to treat battlefield wounded and sick solely on thebasis of medical priority. This training may be done without acknowledgment that it is a treaty requirement. The
same may be said for training provided to combat engineers in laying minefields. The doctrine will have beenreviewed for compliance with treaty requirements, and the mines employed will have been reviewed in compliancewith the country’s treaty obligations. The combat engineer will employ lawful mines in a manner consistent withhis or her doctrine. It is unlikely this will be classified as law of war training.”).
60

Refer to § 18.7.2 (Reasons for Implementation Through Instructions, Regulations, and Procedures).

61

GPW art. 127 (“Any military or other authorities, who in time of war assume responsibilities in respect ofprisoners of war, must possess the text of the Convention and be specially instructed as to its provisions.”); GC art.
144 (“Any civilian, military, police or other authorities, who in time of war assume responsibilities in respect ofprotected persons, must possess the text of the Convention and be specially instructed as to its provisions.”).

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CCW Amended Mines Protocol. 62
18.6.2.3 Special Instructions or Training - CCW Protocol V On Explosive
Remnants of War. Each Party to the CCW Protocol V on Explosive Remnants of War shallrequire that its personnel receive training consistent with the relevant provisions of thisProtocol. 63
18.7 INSTRUCTIONS, REGULATIONS, AND PROCEDURES TO IMPLEMENT AND ENFORCE THE LAW OF
WAR
The law of war has traditionally been implemented through military instructions,
regulations, and procedures. For example, the Lieber Code, one of the first codifications of thelaw of war, was called “Instructions for the Government of Armies of the United States in the
Field,” and was issued as a General Order. 64 Similarly, directives and regulations have been
issued to implement law of war obligations relating to detainees and to establish higher standards
as a matter of policy. 65
18.7.1 Treaty Provisions Specifically Contemplating or Requiring Military Instructions,
Regulations, and Procedures. Law of war treaties contemplate or in some cases require that such
instructions will be issued. In some cases, the implementation of a treaty through military
instructions or regulations may be understood as a part of the general requirements for States totake appropriate actions to implement and enforce their obligations under that treaty. 66
18.7.1.1 Instructions, Regulations, and Procedures – Hague Conventions on Land
Warfare. Parties to Hague IV shall issue instructions to their armed land forces, which shall bein conformity with the “Regulations respecting the Laws and Customs of War on Land” annexed62

CCW AMENDED MINES PROTOCOL art. 14(3) (“Each High Contracting Party shall also require that its armed
forces issue relevant military instructions and operating procedures and that armed forces personnel receive training
commensurate with their duties and responsibilities to comply with the provisions of this Protocol.”).
63

CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 11(1) (“Each High Contracting Party shall require thatits armed forces and relevant agencies or departments issue appropriate instructions and operating procedures andthat its personnel receive training consistent with the relevant provisions of this Protocol.”).
64

Refer to § 19.3 (Lieber Code).

65

For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program (Aug. 19, 2014); DOD DIRECTIVE 2310.01E,
The Department of Defense Detainee Program (Sept. 5, 2006); 1997 MULTI-SERVICE DETENTION REGULATION §11.b (“This regulation implements international law, both customary and codified, relating to EPW, RP, CI, and ODs
which includes those persons held during military operations other than war. The principal treaties relevant to thisregulation are: (1) The 1949 Geneva Convention Relative to the Amelioration of the Condition of the Wounded andSick in Armed Forces in the Field (GWS). (2) The 1949 Geneva Convention Relative to the Amelioration of theCondition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (GWS Sea). (3) The 1949
Geneva Convention Relative to the Treatment of Prisoners of War (GPW). (4) The 1949 Geneva Convention
Relative to the Protection of Civilian Persons in Time of War (GC), and In the event of conflicts or discrepancies
between this regulation and the Geneva Conventions, the provisions of the Geneva Conventions take precedence.”).
Refer to § 8.1.2 (DoD Policies and Regulations Regarding the Treatment of Detainees); § 9.1.3 (DoD Policies andRegulations for the Treatment of POWs); § 10.1.2 (DoD Policies and Regulations for the Treatment of Internees).
66

Refer to § 18.1.2 (National Obligations to Implement and Enforce the Law of War).

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to Hague IV. 67
18.7.1.2 Instructions, Regulations, and Procedures – 1949 Geneva Conventions.
The 1949 Geneva Conventions contemplate that Parties will adopt laws and regulations to ensure
the proper application of the Conventions. 68 The requirement to issue implementing instructions
may be understood as part of the general obligation of Parties to undertake to respect and toensure respect for the Conventions. 69
18.7.1.3 Instructions, Regulations, and Procedures – CCW Amended Mines
Protocol. Each Party to the CCW Amended Mines Protocol shall require that its armed forces
issue relevant military instructions and operating procedures. 70
18.7.1.4 Instructions, Regulations, and Procedures – 1954 Hague Cultural
Property Convention. Parties to the 1954 Hague Cultural Property Convention undertake tointroduce in time of peace into their military regulations or instructions such provisions as may
ensure observance of that Convention, and to foster in the members of their armed forces a spiritof respect for the culture and cultural property of all peoples. 71
18.7.1.5 Instructions, Regulations, and Procedures – CCW Protocol V on
Explosive Remnants of War. Each Party to the CCW Protocol V on Explosive Remnants of War
shall require that its armed forces and relevant agencies or departments issue appropriate
instructions and operating procedures. 72
18.7.2 Reasons for Implementation Through Instructions, Regulations, and Procedures.
In addition to cases in which instructions or regulations are required by a treaty, there are anumber of reasons for implementing law of war obligations through instructions, regulations, and
67

HAGUE IV art. 1 (“The Contracting Powers shall issue instructions to their armed land forces which shall be inconformity with the Regulations respecting the laws and customs of war on land, annexed to the present
Convention.”). Cf. 1899 HAGUE II art. 1 (“The High Contracting Parties shall issue instructions to their armed land
forces, which shall be in conformity with the ‘Regulations respecting the Laws and Customs of War on Land’annexed to the present Convention.”).

68

GWS art. 48 (“The High Contracting Parties shall communicate to one another through the Swiss Federal Council
and, during hostilities, through the Protecting Powers, the official translations of the present Convention, as well as
the laws and regulations which they may adopt to ensure the application thereof.”); GWS-SEA art. 49 (same); GPW
art. 128 (same); GC art. 145 (same).
69

Refer to § 18.1.2.1 (General Treaty Obligations to Take Appropriate Actions to Implement and Enforce the Treaty– 1949 Geneva Conventions).
70

CCW AMENDED MINES PROTOCOL art. 14(3) (“Each High Contracting Party shall also require that its armed
forces issue relevant military instructions and operating procedures and that armed forces personnel receive training
commensurate with their duties and responsibilities to comply with the provisions of this Protocol.”).
71

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 7 (“The High Contracting Parties undertake to introduce intime of peace into their military regulations or instructions such provisions as may ensure observance of the present
Convention, and to foster in the members of their armed forces a spirit of respect for the culture and culturalproperty of all peoples.”).
72
CCW PROTOCOL V ON EXPLOSIVE REMNANTS OF WAR art. 11(1) (“Each High Contracting Party shall require thatits armed forces and relevant agencies or departments issue appropriate instructions and operating procedures andthat its personnel receive training consistent with the relevant provisions of this Protocol.”).

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other procedures.
18.7.2.1 Re-characterizing National Obligations Into Rules for Individuals. First,
under the traditional view of international law, obligations are owed between States, and not as
between States and individuals. 73 Thus, treaty provisions may need to be re-characterized fromobligations that Parties to the treaty promise to one another into rules for individual conduct.
18.7.2.2 Implementing the Rules in Non-Self-Executing Treaties. The adoption of
instructions, regulations, or procedures may assist in the implementation of non-self-executing
treaties. When treaties or provisions of treaties are regarded as “non-self-executing,” suchprovisions do not constitute enforceable domestic law even though the State has ratified them,but require further implementing action by the ratifying State. 74
However, a State may adopt instructions, regulations, or procedures that are enforceable
under its domestic law and that implement the rules reflected in a treaty. Thus, because such
instructions, regulations, or procedures are enforceable domestically, the State can enforce therules in the treaty, even though the treaty remains non-self-executing.
18.7.2.3 Setting Higher Standards as a Matter of Policy. In addition, States may
choose to implement law of war obligations through instructions, regulations, and procedures
because they wish to set a higher standard for their armed forces as a matter of policy. For
example, rules of engagement are often more restrictive than relevant law of war requirements. 75
As another example, U.S. military operations are routinely subject to more restrictions and apply
standards that are more protective of civilians than required by the law of war. 76
Although failures to adhere to such more restrictive standards may be punishable under
the UCMJ, such failures would not necessarily be violations of the law of war.
18.7.2.4 Clarifying Ambiguities in the Law. States may choose to implement lawof war obligations through instructions, regulations, and procedures because they wish to clarify
their interpretation of the obligations, which otherwise may not be clear because a treaty
provision is ambiguous or because the obligation is reflected in customary international law.
18.7.2.5 Ensuring Detailed Requirements Are Not Neglected, and Assistance inTraining. In cases in which treaty requirements are detailed and extensive, the promulgation of
military instructions may also help ensure that treaty requirements are not omitted or neglected.
Similarly, the promulgation of military instructions also assists in conducting training or special
instruction. 77

73

Refer to § 1.10.1.3 (Predominately Inter-State Nature of International Obligations).

74

Refer to § 1.10.2.1 (Force of Self-Executing and Non-Self-Executing Treaties Under U.S. Domestic Law).

75

Refer to § 1.6.5 (Rules of Engagement (ROE)).

76

Refer to § 5.1.2.1 (Applying Standards in the Conduct of Hostilities That Pose More Restrictions on Military
Operations and That Are More Protective of Civilians Than Required By the Law of War).
77

Refer to § 18.6.2 (Special Instruction or Training).

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18.7.3 Enforcement of Law of War Obligations Through Military Instructions,
Regulations, and Procedures. The implementation of law of war treaties and obligations throughmilitary instructions, regulations, and procedures has the effect of making such rules enforceable
because military personnel are required to comply with duly issued instructions, regulations, andprocedures. Military personnel may be punished for failure to comply with such orders andinstructions. 78 Conduct that violates the law of war has often been punished through thismechanism. 79
18.8 CONSIDERING LAW OF WAR OBLIGATIONS IN THE PLANNING OF MILITARY OPERATIONS
Military commanders and planners should consider law of war obligations in the planningof military operations. DoD policy has required the review of plans by legal advisers to ensure
their consistency with the law of war. 80
It may be especially important to consider affirmative obligations imposed by the law ofwar. For example, military commanders and planners should plan for their medical facilities toconsider needing to treat enemy wounded and sick. Similarly, the requirements to care fordetainees should also be considered. Potential responsibilities as an Occupying Power should
also be considered.
18.9 STATES’ OBLIGATIONS WITH RESPECT TO VIOLATIONS OF THE LAW OF WAR
States have certain obligations with respect to alleged violations of the law of war within
their jurisdiction. In some cases, these obligations to address alleged violations of particulartreaties may be understood as part of the general obligations to implement and enforce thosetreaties. In other cases, law of war treaties impose specific requirements on States with respect
to alleged violations of obligations in those treaties.
18.9.1 State Responsibility for Violations of the Law of War by Its Armed Forces. A
State may be responsible for violations of the law of war committed by persons forming part ofits armed forces. 81 In particular, States are responsible for the treatment accorded protected
78

Refer to § 18.19.3.1 (Uniform Code of Military Justice Offenses).

79

For example, United States v. Harman, 68 M.J. 325, 326 (C.A.A.F. 2010) (“Contrary to her pleas, Appellant wasconvicted at a general court-martial, with officer and enlisted members, of conspiracy to maltreat subordinates;
dereliction of duty by failing to protect Iraqi detainees from abuse, cruelty, and maltreatment; and four specificationsof maltreatment under Articles 81, 92, and 93, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 892,
893 (2006).”); Rear Admiral Richard G. Voge, Too Much Accuracy, PROCEEDINGS OF THE U.S. NAVAL INSTITUTE
257-59 (1950) (“[O]n April 9, 1945, to be exact, the Japanese government indignantly announced that the Awa
Maru, on her return trip to Japan after carrying Red Cross supplies to Singapore and the Dutch East Indies, andtravelling under a guarantee of safe conduct from the United States government, had been sunk by a U.S. submarine.
… [T]he Navy announced that the Awa Maru had been sunk by the U.S.S. Queenfish, commanded by CommanderCharles Elliot Loughlin, U.S. Navy, of North Wales, Pennsylvania. … Loughlin was brought to trial on threecharges: Charge I. Culpable inefficiency in the performance of duty. Charge II. Disobeying the lawful order of his
superior officer. Charge III. Negligence in obeying orders.”).
80

Refer to § 18.5.1.1 (Review of Plans, Policies, Directives, and Rules of Engagement by Legal Advisers).

81

HAGUE IV art. 3 (“A belligerent party which violates the provisions of the said Regulations shall, if the casedemands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its
armed forces.”); 1928 PAN AMERICAN NEUTRALITY CONVENTION art. 27 (“A belligerent shall indemnify the damage

1087

persons under the GC by their agents. 82 State responsibility for violations of the law of war
committed by its armed forces or other agents results from principles of State responsibility ininternational law that are not specific to the law of war. 83
State responsibility for violations of the law of war results in obligations to compensate
other States for violations. 84
18.9.2 Breaches of the 1954 Hague Cultural Property Convention. Parties to the 1954
Hague Cultural Property Convention undertake to take, within the framework of their ordinarycriminal jurisdiction, all necessary steps to prosecute and impose penal or disciplinary sanctions
upon those persons, of whatever nationality, who commit or order to be committed a breach of
the 1954 Hague Cultural Property Convention. 85
18.9.3 Grave Breaches of the 1949 Geneva Conventions. Parties to the 1949 Geneva
Conventions have certain obligations relating to grave breaches of the 1949 Geneva
Conventions. These obligations have been interpreted as declaratory of the obligations ofbelligerents under customary international law to take measures for the punishment of war
crimes committed by all persons, including members of a belligerent’s armed forces. 86 Theseobligations do not affect the right of a belligerent, under customary international law, to try
enemy personnel for war crimes other than grave breaches of the 1949 Geneva Conventions. 87

caused by its violation of the foregoing provisions. It shall likewise be responsible for the acts of persons who may
belong to its armed forces.”). Consider AP I art. 91 (“A Party to the conflict which violates the provisions of theConventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for
all acts committed by persons forming part of its armed forces.”).
82

Refer to § 10.3.5 (State Responsibility for Its Agents’ Treatment of Protected Persons).

83

See, e.g., I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 96 (§207) (1987) (“Astate is responsible for any violation of its obligations under international law resulting from action or inaction by (a)the government of the state, (b) the government or authorities of any political subdivision of the state, or (c) any
organ, agency, official, employee, or other agent of a government or of any political subdivision, acting within thescope of authority or under color of such authority.”).
84

Refer to § 18.16 (Compensation for Violations of the Law of War).

85

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 28 (“The High Contracting Parties undertake to take, within
the framework of their ordinary criminal jurisdiction, all necessary steps to prosecute and impose penal ordisciplinary sanctions upon those persons, of whatever nationality, who commit or order to be committed a breach of
the present Convention.”).
86

1956 FM 27-10 (Change No. 1 1976) ¶506 (“b. Declaratory Character of Above Principles. The principles
quoted in a [provisions of GWS art. 49, GWS-Sea art. 50, GPW art. 129, and GC art. 146], above, are declaratory of
the obligations of belligerents under customary international law to take measures for the punishment of war crimes
committed by all persons, including members of a belligerent's own armed forces.”). See also Joyce A.C.
Gutteridge, The Geneva Conventions of 1949, 26 BRITISH YEAR BOOK OF INTERNATIONAL LAW 294, 305 (1949)(“In accordance with the decision that there should be no attempt in the Geneva Conventions to embark, in however
rudimentary a fashion, on the settlement of a procedure for dealing with war crimes, the Conventions do not attempt
to provide for the trial of ‘grave breaches’ thereof by any international tribunal, but contemplate only trial andsentence by the regularly constituted courts of parties to the conflict.”).
87

Richard R. Baxter, The Geneva Conventions of 1949, 62 U.S. NAVAL WAR COLLEGE INTERNATIONAL LAWSTUDIES 220, 223 (1980) (“It may cheer some of you to hear that the Conventions make no reference to war
crimes—by that name. There was much controversy about this point at the Conference in 1949, and the upshot of it

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Parties to the 1949 Geneva Conventions undertake to enact any legislation necessary toprovide effective penal sanctions for persons committing, or ordering to be committed, any of thegrave breaches of the 1949 Geneva Conventions. 88
Each Party to the 1949 Geneva Conventions shall be under the obligation to search forpersons alleged to have committed, or to have ordered to be committed, such grave breaches, andshall bring such persons, regardless of their nationality, before its own courts. 89 It may also, if it
prefers, and in accordance with the provisions of its own legislation, hand such persons over fortrial to another High Contracting Party concerned, provided such High Contracting Party has
made out a prima facie case. 90
No Party to the 1949 Geneva Conventions shall be allowed to absolve itself or any otherParty of any liability incurred by itself or by another Party in respect of grave breaches of the1949 Geneva Conventions. 91
18.9.3.1 Acts Constituting Grave Breaches. The acts constituting “grave
breaches” for the purpose of triggering these obligations are defined differently depending on theparticular Geneva Convention. However, all of the Conventions include as grave breaches thefollowing acts against persons protected by the respective Convention:•

willful killing;•

torture or inhuman treatment, including biological experiments; and•willfully causing great suffering or serious injury to body or health.

The term “grave breaches” was deliberately chosen so as not to indicate that violations of
those provisions of the 1949 Geneva Conventions were themselves crimes or that the 1949

was that each of the four Conventions contains an article specifying certain atrocious acts, such as the torturing ofprisoners and civilians, as ‘grave breaches’ of the Conventions. Judicial safeguards are provided for persons
charged with such acts. Of course, these specific provisions do not affect the right of a belligerent, under customaryinternational law, to try enemy personnel for war crimes other than ‘grave breaches’ of the treaties.”).
88

GWS art. 49 (“The High Contracting Parties undertake to enact any legislation necessary to provide effective
penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present
Convention defined in the following Article.”); GWS-SEA art. 50 (same); GPW art. 129 (same); GC art. 146 (same).
89

GWS art. 49 (“Each High Contracting Party shall be under the obligation to search for persons alleged to havecommitted, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of
their nationality, before its own courts.”); GWS-SEA art. 50 (same); GPW art. 129 (same); GC art. 146 (same).
90

GWS art. 49 (“It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such
persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has madeout a prima facie case.”); GWS-SEA art. 50 (same); GPW art. 129 (same); GC art. 146 (same).

91
GWS art. 51 (“No High Contracting Party shall be allowed to absolve itself or any other High Contracting Partyof any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in thepreceding Article.”); GWS-SEA art. 52 (same); GPW art. 131 (same); GC art. 148 (same).

1089

Geneva Conventions created an international penal code. 92
Grave breaches of the GWS and GWS-Sea are those involving any of the following acts,
if committed against persons or property protected by the GWS or GWS-Sea:•

willful killing; torture or inhuman treatment, including biological experiments;•

willfully causing great suffering or serious injury to body or health; and•extensive destruction and appropriation of property, not justified by military necessity
and carried out unlawfully and wantonly. 93

Grave breaches of the GPW are those involving any of the following acts, if committed
against persons or property protected by the GPW:•

willful killing;•

torture or inhuman treatment, including biological experiments;•

willfully causing great suffering or serious injury to body or health;•compelling a POW to serve in the forces of the hostile Power; and•willfully depriving a POW of the rights of fair and regular trial prescribed in the GPW. 94

92

See II-B FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 356-57 (“Mr. SINCLAIR (United
Kingdom): The Soviet proposal to substitute in these Articles the word ‘crime’ for the words ‘grave breaches’ hasbeen very fully thrashed out both in the Special Committee and in the Joint Committee, and you will all have readthe results in the Reports of those Committees and in particular in the Special Report on penal sanctions. It is not aquestion as to whether or not these grave breaches are crimes, it is simply a question of finding appropriate words
for carrying out the intention behind these Articles which all the delegations who were responsible for framing those
Articles were attempting to secure. That intention was to ensure that any persons who committed breaches of these
Conventions would be suitably dealt with and punished according to the seriousness of the offences that they
committed, and therefore it would have been quite inappropriate to have gone into the question of establishing a newpenal code in these Articles. For that reason the proposal in the present Soviet amendment has been rejected
throughout this Conference. … Mr. YINGLING (United States of America): I associate myself with the remarks
which have been made by the Delegate of the United Kingdom. I see no need for repeating the arguments. This
Convention is clearly not a penal statute, and the term ‘crimes’ is clearly inappropriate to express violations of thisConvention, which will not be crimes until they are so made by domestic penal legislation.”).

93

GWS art. 50 (“Grave breaches to which the preceding Article relates shall be those involving any of the following
acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhumantreatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, andextensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully
and wantonly.”); GWS-SEA art. 51 (same).
94

GPW art. 130 (“Grave breaches to which the preceding Article relates shall be those involving any of thefollowing acts, if committed against persons or property protected by the Convention: wilful killing, torture or
inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body orhealth, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of
war of the rights of fair and regular trial prescribed in this Convention.”).

1090

Grave breaches of the GC are those involving any of the following acts, if committed
against persons or property protected by the GC:•

willful killing;•

torture or inhuman treatment, including biological experiments;•

willfully causing great suffering or serious injury to body or health;•unlawful deportation or transfer or unlawful confinement of a protected person;•compelling a protected person to serve in the forces of a hostile Power;•

willfully depriving a protected person of the rights of fair and regular trial prescribed in
the GC;•taking of hostages; and•extensive destruction and appropriation of property, not justified by military necessity
and carried out unlawfully and wantonly. 95

18.9.3.2 Applicability of Grave Breaches Obligations to Non-International Armed
Conflict. The text of the 1949 Geneva Conventions provides that grave breaches relate toviolations “against persons or property protected by the Convention.” Since Common Article 3of the 1949 Convention protects persons against some of the acts described as grave breaches,
the United States took the position that the obligations created by the grave breaches provisionsof the 1949 Geneva Conventions could apply also to violations of Common Article 3. 96 An
Appeals Chamber of the ICTY did not accept this view, and understood the grave breaches
provisions of the 1949 Geneva Conventions only to create obligations applicable in internationalarmed conflicts. 97 U.S. law makes punishable certain conduct that constitutes a “grave breach of95

GC art. 147 (“Grave breaches to which the preceding Article relates shall be those involving any of the following
acts, if committed against persons or property protected by the present Convention: wilful killing, torture or
inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body orhealth, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected
person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair andregular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation ofproperty, not justified by military necessity and carried out unlawfully and wantonly.”).
96

D. Stephen Mathias, Legal Counselor, Embassy of the United States, The Hague, The Netherlands, Submission of
the Government of the United States of America Concerning Certain Arguments Made by Counsel for the Accused in
the Case of The Prosecutor of the Tribunal v. Dusan Tadic, 35-36 (Jul. 17, 1995) (“For example, Article 130 of the1949 Geneva Convention Relative to the Treatment of Prisoners of War defines ‘grave breaches’ as any of a seriesof specified acts ‘if committed against persons or property protected by the Convention.’ (This definition is
included almost verbatim in Article 2 of the Tribunal Statute.) There is no special definition or usage in the Third
Geneva Convention of the phrase ‘persons protected by the Convention.’ Insofar as Common Article 3 prohibits
certain acts with respect to ‘[p]ersons taking no active part in hostilities’ in cases of armed conflict not of aninternational character, it is consistent with the ordinary meaning of the Geneva Conventions to treat such persons as
persons protected by the Conventions.”).

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common article 3.” 98
Regardless of whether the obligations in the grave breaches provisions apply with respect
to violations of Common Article 3, serious violations of Common Article 3 may nonetheless bepunishable.
18.9.3.3 Suppression of All Acts Contrary to the Provisions of the 1949 Geneva
Conventions. Each High Contracting Party shall take measures necessary for the suppression of
all acts contrary to the provisions of the 1949 Geneva Conventions other than the grave
breaches. 99
Such measures could include punishment of offenders. For example, if a U.S. Soldier
steals the money that has been impounded from POWs and appropriates it for his or her own use,
the theft would not constitute a grave breach of the 1949 Geneva Conventions, but would be an
offense under the Uniform Code of Military Justice. 100
Such measures may also be understood to include a wide range of measures, such as thepromulgation or revision of policies and regulations, administrative or corrective measures, or
retraining of personnel. 101
18.9.4 CCW Amended Mines Protocol. Each Party to the CCW Amended Mines
Protocol shall take all appropriate steps, including legislative and other measures, to prevent andsuppress violations of the CCW Amended Mines Protocol by persons or on territory under its
jurisdiction or control. 102 Such measures include appropriate measures to ensure the impositionof penal sanctions against persons who, in relation to an armed conflict and contrary to theSee, e.g., Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-AR72, Decision on the Defence Motion forInterlocutory Appeal on Jurisdiction, ¶71 (Oct. 2, 1995) (“Article 2 refers to ‘grave breaches’ of the Geneva
Conventions of 1949, which are widely understood to be committed only in international armed conflicts, so thereference in Article 2 would seem to suggest that the Article is limited to international armed conflicts.”).
97

98

18 U.S.C. § 2441 (“(c) Definition.— As used in this section the term “war crime” means any conduct— …(3)which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context
of and in association with an armed conflict not of an international character;”).
99
GWS art. 49 (“Each High Contracting Party shall take measures necessary for the suppression of all acts contrary
to the provisions of the present Convention other than the grave breaches defined in the following Article.”); GWSSEA art. 50 (same); GPW art. 129 (same); GC art. 146 (same).
100

See, e.g., 10 U.S.C. § 903 (“(a) All persons subject to this chapter shall secure all public property taken from theenemy for the service of the United States, and shall give notice and turn over to the proper authority without delay
all captured or abandoned property in their possession, custody, or control. (b) Any person subject to this chapter
who—(1) fails to carry out the duties prescribed in subsection (a); (2) buys, sells, trades, or in any way deals in or
disposes of captured or abandoned property, whereby he receives or expects any profit, benefit, or advantage tohimself or another directly or indirectly connected with himself; or (3) engages in looting or pillaging; shall bepunished as a court-martial may direct.”).
101

Refer to § 18.4.4 (Issuance of Guidance, Training of Subordinates, and Other Preventive or Corrective
Measures); § 18.19.1 (Non-Judicial Punishment and Adverse or Corrective Administrative Actions); § 18.7
(Instructions, Regulations, and Procedures to Implement and Enforce the Law of War).
102

Refer to § 18.1.2.3 (General Treaty Obligations to Take Appropriate Actions to Implement and Enforce theTreaty – CCW Amended Mines Protocol).

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provisions of the CCW Amended Mines Protocol, willfully kill or cause serious injury tocivilians and to bring such persons to justice. 103
Penal sanctions under Article 14 of the CCW Amended Mines Protocol only apply in asituation in which an individual: (1) knew, or should have known, that his or her action wasprohibited under the CCW Amended Mines Protocol; (2) intended to kill or cause serious injury
to a civilian; and (3) knew, or should have known, that the person he or she intended to kill or
cause serious injury was a civilian. 104
U.S. Federal law authorizes prosecutions for such conduct. 105
18.9.5 War Crimes – Notes on Terminology. The term “war crime” has been used indifferent ways in different contexts. In contemporary parlance, the term “war crime” is mostoften used to mean serious violations of the law of war.
18.9.5.1 War Crimes – Any Violation of the Law of War. In some cases, the term
“war crime” has been used as a technical expression for a violation of the law of war by any
person; i.e., under this usage, any violation of the law of war is a war crime. 106 This has been103

CCW AMENDED MINES PROTOCOL art. 14 (“1. Each High Contracting Party shall take all appropriate steps,
including legislative and other measures, to prevent and suppress violations of this Protocol by persons or on
territory under its jurisdiction or control. 2. The measures envisaged in paragraph I of this Article include
appropriate measures to ensure the imposition of penal sanctions against persons who, in relation to an armed
conflict and contrary to the provisions of this Protocol, wilfully kill or cause serious injury to civilians and to bringsuch persons to justice.”).
104

United States, Statement on Consent to Be Bound by the CCW Amended Mines Protocol, May 24, 1999, 2065
UNTS 128, 129 (“The United States understands that - … (B) Article 14 of the Amended Mines Protocol (insofar as
it relates to penal sanctions) shall apply only in a situation in which an individual – (i) knew, or should have known,that his action was prohibited under the Amended Mines Protocol; (ii) intended to kill or cause serious injury to a
civilian; and (iii) knew or should have known, that the person he intended to kill or cause serious injury was acivilian.”).
105

18 U.S.C. § 2441 (“(a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in
any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any termof years, or both, and if death results to the victim, shall also be subject to the penalty of death. … (c) Definition.—
As used in this section the term “war crime” means any conduct— … (4) of a person who, in relation to an armed
conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, BoobyTraps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the
United States is a party to such Protocol, willfully kills or causes serious injury to civilians.”).
106

See, e.g., Charter of the International Military Tribunal, art. 6, annexed to Agreement by the Government of theUnited Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, theProvisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics for
the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 UNTS 280,
288 (“The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there
shall be individual responsibility:– … (b) War crimes: namely, violations of the laws or customs of war. Suchviolations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any otherpurpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on
the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, ordevastation not justified by military necessity;”).

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longstanding U.S. military doctrine. 107
Any violation of the law of war by members of the armed forces of a State could be madepunishable by that State through its domestic law, including military law applicable to its armed
forces. For example, under military law, violations of the law of war may be made punishable
through military orders to comply with law of war requirements. 108 Commanders may also
impose non-judicial punishment or take adverse administrative action to address minor
violations. 109
18.9.5.2 War Crimes – Serious Violations of the Law of War. Sometimes the term
“war crime” is used to refer to particularly serious violations of the law of war. For example,
this is generally the usage when the term “war crime” is defined for the purposes of a particularcriminal statute. 110
This usage of “war crime” is understood to exclude minor violations of the law of war.
For example, if during an international armed conflict, military medical personnel perform theirduties while wearing an armlet displaying the distinctive emblem affixed to their right arm –rather than to their left arm, as specified by Article 40 of the GWS, these personnel may be said
to be violating the law of war. However, under this usage of “war crime,” such violations
generally would not be regarded as a “war crime.”
18.9.5.3 War Crimes – Serious Violations of Domestic Law Applicable During
Armed Conflict. The term “war crime” has also been used to describe offenses, such as
espionage and unprivileged belligerency, that although not prohibited by international law, areproperly liable to punishment by the belligerent against which they are directed. 111 Generally,
this usage does not prevail today, although practitioners may find this usage in older sources.

107

See, e.g., U.S. MILITARY ASSISTANCE COMMAND VIETNAM DIRECTIVE 20-4, Inspections and Investigations:
War Crimes ¶3.a (May 18, 1968) (“Every violation of the law of war is a war crime”); 1956 FM 27-10 (Change No.
1 1976) ¶499 (“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.”). Cf. 1958 UK MANUAL ¶624(“The term ‘war crime’ is the technical expression for violations of the laws of warfare, whether committed bymembers of the armed forces or by civilians.”).
108

Refer to § 18.7.3 (Enforcement of Law of War Obligations Through Military Instructions, Regulations, andProcedures).
109

Refer to § 18.19.1 (Non-Judicial Punishment and Adverse or Corrective Administrative Actions).

110

See, e.g., 18 U.S.C. § 2441 (“(a) Offense.— Whoever, whether inside or outside the United States, commits a war
crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or
any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death. … (c)Definition.— As used in this section the term “war crime” means any conduct— … .”).
111

1958 UK MANUAL ¶624 (“The term ‘war crime’ is the technical expression for violations of the laws of warfare,whether committed by members of the armed forces or by civilians. It has also been customary to describe as war
crimes such acts as espionage and so-called war treason which, although not prohibited by international law, areproperly liable to punishment by the belligerent against which they are directed. However, the accuracy of thedescription of such acts as war crimes is doubtful.”). Refer to § 4.19.4.1 (Unprivileged Belligerency and the Law of
War – Notes on Terminology).

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18.10 METHODS FOR RESPONDING TO VIOLATIONS OF THE LAW OF WAR BY THE ENEMY
In the event of violation of the law of war, it may be possible for the injured State toresort to remedial action of the following types:•

publication of the facts, with a view to influencing public opinion against the offending
belligerent;•

protests and demands to the offending party, 112 including demands for compensation or
the punishment of enemy persons who have violated the law; 113•

solicitation of the good offices, mediation, or intervention of neutral States for the
purpose of making the enemy observe the law of war; 114•

petition to the U.N. Security Council; 115•

punishment of captured offenders as war criminals, either through national orinternational tribunals; 116•

retorsion; 117 and•reprisals. 118

18.11 PROTESTS AND DEMANDS TO THE OFFENDING PARTY
An initial step in responding to law of war violations by the enemy is to issue a formal orinformal complaint to the offending party.
18.11.1 Method of Transmitting Protests and Demands. In view of the lack of diplomatic
relations between States involved in an armed conflict, complaints cannot normally be madethrough the usual diplomatic channels. However, other methods are available, depending on the
degree of publicity required. The traditional method of complaining by parlementaire directly tothe commander of the offending forces remains, although modern communications have meantthat the message is more likely now to be transmitted through electronic means. 119

112

Refer to § 18.11 (Protests and Demands to the Offending Party).

113

Refer to § 18.11.2 (Demands for Redress).

114

Refer to § 18.15 (Protecting Power and Other Neutral Intermediaries).

115

Refer to § 18.12 (U.N. Security Council and Enforcement of the Law of War).

116

Refer to § 18.19 (Discipline in National Jurisdictions of Individuals for Violations of the Law of War); § 18.20(Prosecution in International and Hybrid Courts).
117

Refer to § 18.17 (Retorsion).

118

Refer to § 18.18 (Reprisals).

1192004 UK MANUAL ¶16.6 (“In view of the lack of diplomatic relations between states involved in an armed
conflict, complaints cannot normally be made through the usual diplomatic channels. However, other methods are

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Complaints also may be made through the Protecting Power, an impartial humanitarianorganization performing the duties of a Protecting Power, or a Neutral State. 120
18.11.2 Demands for Redress. In addition to demands to cease committing violations,protests may also include demands for redress by the offending party. For example, a State may
demand that a national investigation or international investigation be conducted. 121 A State may
demand financial compensation or other reparations. 122 Similarly, a State may demand that
offending individuals be held accountable for their offenses through judicial or otherprocesses. 123
18.12 U.N. SECURITY COUNCIL AND ENFORCEMENT OF THE LAW OF WAR
In some cases, the U.N. Security Council has determined that situations involving
violations of the law of war constitute a threat to international peace and security. 124 The U.N.
Security Council may take a variety actions to respond to such threats.
18.12.1 Investigation by the U.N. Security Council Under the Charter of the United
Nations. Under the Charter of the United Nations, the U.N. Security Council may investigate
any dispute, or any situation that might lead to international friction or give rise to a dispute, inorder to determine whether the continuance of the dispute or situation is likely to endanger the
maintenance of international peace and security. 125 This authority of the U.N. Security Council
to investigate situations includes any such situations that involve violations of the law of war.
available, depending on the degree of publicity required. The traditional method of complaining under theprotection of a flag of truce remains, although modern communications have meant that the message is more likely
now to be transmitted by radio or television. Complaints may be made also through neutral states, whether or not
the complainant also seeks their good offices to mediate with a view to making the adverse party observe the law ofarmed conflict.”); 1956 FM 27-10 (Change No. 1 1976) ¶ 495b (“In the event of violation of the law of war, theinjured party may legally resort to remedial action of the following types: … b. Protest and demand forcompensation and/or punishment of the individual offenders. Such communications may be sent through theprotecting power, a humanitarian organization performing the duties of a protecting power, or a neutral state, or byparlementaire direct to the commander of the offending forces.”).
120

Refer to § 18.15 (Protecting Power and Other Neutral Intermediaries).

121

Refer to § 18.13 (National Investigations of Alleged Violations of the Law of War); § 18.14 (International
Mechanisms to Investigate Alleged Law of War Violations).
122

Refer to § 18.16 (Compensation for Violations of the Law of War).

123

Refer to § 18.19 (Discipline in National Jurisdictions of Individuals for Violations of the Law of War).

124

U.N. SECURITY COUNCIL RESOLUTION 808, U.N. Doc S/RES/808 (Feb. 22, 1993) (“Expressing once again its
grave alarm at continuing reports of widespread violations of international humanitarian law occurring within the
territory of the former Yugoslavia, including reports of mass killings and the continuance of the practice of ‘ethnic
cleansing’, Determining that this situation constitutes a threat to international peace and security.”); U.N. SECURITY
COUNCIL RESOLUTION 955, U.N. Doc S/RES/955 (Nov. 8, 1994) (“Expressing once again its grave concern at thereports indicating that genocide and other systematic, widespread and flagrant violations of international
humanitarian law have been committed in Rwanda, Determining that this situation continues to constitute a threat tointernational peace and security,”).
125

U.N. CHARTER art. 34 (“The Security Council may investigate any dispute, or any situation which might lead tointernational friction or give rise to a dispute, in order to determine whether the continuance of the dispute orsituation is likely to endanger the maintenance of international peace and security.”).

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The U.N. Security Council has provided for the establishment of commissions of inquiry
or commissions of experts to report on violations of the law of war. 126
18.12.2 Determining Liability and Determining That Compensation Should Be Paid. The
U.N. Security Council may, in appropriate cases, affirm that States are liable for violations ofinternational law and establish mechanisms to facilitate the payment of compensation for such
violations. 127
18.12.3 Authorizing the Use of Force. The U.N. Security Council has authorized the useof force in order to protect civilians who are being attacked in violation of the law of war. 128

126

For example, U.N. SECURITY COUNCIL RESOLUTION 780, U.N. Doc S/RES/780 (Oct. 6, 1992) (“Requests the
Secretary-General to establish, as a matter of urgency, an impartial Commission of Experts to examine and analyse
the information submitted pursuant to resolution 771 (1992) and the present resolution, together with such further
information as the Commission of Experts may obtain through its own investigations or efforts, of other persons or
bodies pursuant to resolution 771 (1992), with a view to providing the Secretary-General with its conclusions on theevidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law
committed in the territory of the former Yugoslavia.”); U.N. SECURITY COUNCIL RESOLUTION 935, U.N. Doc
S/RES/935 (Jul. 1, 1994) (“Requests the Secretary-General to establish, as a matter of urgency, an impartial
Commission of Experts to examine and analyse information submitted pursuant to the present resolution, together
with such further information as the Commission of Experts may obtain through its own investigations or the effortsof other persons or bodies, including the information made available by the Special Rapporteur for Rwanda, with aview to providing the Secretary-General with its conclusions on the evidence of grave violations of international
humanitarian law committed in the territory of Rwanda, including the evidence of possible acts of genocide.”); U.N.
SECURITY COUNCIL RESOLUTION 1564, U.N. Doc S/RES/1564 (Sept. 18, 2004) (“Requests that the SecretaryGeneral rapidly establish an international commission of inquiry in order immediately to investigate reports ofviolations of international humanitarian law and human rights law in Darfur by all parties, to determine also whether
or not acts of genocide have occurred, and to identify the perpetrators of such violations with a view to ensuring thatthose responsible are held accountable, calls on all parties to cooperate fully with such a commission, and further
requests the Secretary-General, in conjunction with the Office of the High Commissioner for Human Rights, to takeappropriate steps to increase the number of human rights monitors deployed to Darfur.”).
127

See, e.g., U.N. COMPENSATIONS COMMISSION GOVERNING COUNCIL, Report and Recommendations Made by the
Panel of Commissioners Appointed to Review the Well Blowout Control Claim (the “WBC Claim”), U.N. Doc.
S/AC.26/1996/R.27/Annex, 22 ¶ 68 (Dec. 18, 1996) (“The Security Council having determined, under Chapter VIIof the Charter, that compensation in accordance with international law should be provided to foreign Governments,
nationals and corporations for any direct loss, damage or injury sustained by them as a result of Iraq’s unlawful
invasion and occupation of Kuwait, in order to restore international peace and security, the issue of Iraq’s liability
has been resolved by the Security Council and constitutes part of the law applicable before the Commission.”); id. at¶67 (“According to paragraph 16 of Security Council resolution 687 (1991), which under article 31 of the Rules
forms part of the law applicable before the Commission, ‘Iraq . . . is liable under international law for any direct
loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign
Governments, nationals and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait.’ The
Panel notes that, when making resolution 687 (1991), the Security Council acted under Chapter VII of the United
Nations Charter, i.e., it exercised its powers under that Chapter to maintain and restore international peace andsecurity.”).

128

U.N. SECURITY COUNCIL RESOLUTION 1973, U.N. Doc S/RES/1973 ¶4 (Mar. 17, 2011) (“Authorizes Member
States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements,
and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 ofresolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab
Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan
territory, and requests the Member States concerned to inform the Secretary-General immediately of the measuresthey take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the1097

18.12.4 Authorizing International Criminal Tribunals. The U.N. Security Council has
established international criminal tribunals for the purpose of prosecuting serious violations ofinternational humanitarian law. The U.N. Security Council has exercised this authority to create
the International Criminal Tribunal for the Former Yugoslavia and the International Criminal
Tribunal for Rwanda. 129
The Rome Statute of the International Criminal Court provides that the International
Criminal Court may exercise its jurisdiction with respect to crimes when a situation is referred to
the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United
Nations. 130 The U.N. Security Council has referred situations in Darfur and Libya to theProsecutor of the International Criminal Court. 131 The United States has objected to certain
aspects of the jurisdiction of the International Criminal Court, and there are certain restrictions in
U.S. domestic law on support to the International Criminal Court. 132
18.12.5 U.N. Security Council Role in Certain Treaties.
18.12.5.1 U.N. Security Council Role in the Biological Weapons Convention and
ENMOD Convention. The Biological Weapons Convention and the ENMOD Convention
provide that Parties to the treaties may lodge a complaint with the Security Council, when a
Party believes that another Party is in breach of its obligations deriving from the provisions ofSecurity Council.”); U.N. SECURITY COUNCIL RESOLUTION 1270, U.N. Doc S/RES/1270 ¶14 (Oct. 22, 1999)(“Acting under Chapter VII of the Charter of the United Nations, decides that in the discharge of its mandate
UNAMSIL may take the necessary action to ensure the security and freedom of movement of its personnel and,within its capabilities and areas of deployment, to afford protection to civilians under imminent threat of physicalviolence, taking into account the responsibilities of the Government of Sierra Leone and ECOMOG;”).
129

U.N. SECURITY COUNCIL RESOLUTION 827, U.N. Doc S/RES/827 (May 25, 1993) (“Acting under Chapter VII of
the Charter of the United Nations, ... 2. Decides hereby to establish an international tribunal for the sole purpose ofprosecuting persons responsible for serious violations of international humanitarian law committed in the territory of
the former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council upon therestoration of peace and to this end to adopt the Statute of the International Tribunal annexed to the abovementioned report;”); U.N. SECURITY COUNCIL RESOLUTION 955, U.N. Doc S/RES/955 (Nov. 8, 1994) (“Acting
under Chapter VII of the Charter of the United Nations, 1. Decides hereby, having received the request of theGovernment of Rwanda (S/1994/1115), to establish an international tribunal for the sole purpose of prosecuting
persons responsible for genocide and other serious violations of international humanitarian law committed in the
territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the
territory of neighbouring States, between 1 January 1994 and 31 December 1994 and to this end to adopt the Statuteof the International Criminal Tribunal for Rwanda annexed hereto;”).
130

ROME STATUTE art. 13(b) (“The Court may exercise its jurisdiction with respect to a crime referred to in article 5in accordance with the provisions of this Statute if: A situation in which one or more of such crimes appears to havebeen committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of theUnited Nations;”).
131

U.N. SECURITY COUNCIL RESOLUTION 1593, U.N. Doc S/RES/1593 (Mar. 31, 2005) (“Decides to refer thesituation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court.”); U.N. SECURITY
COUNCIL RESOLUTION 1970, U.N. Doc S/RES/1970 (Feb. 26, 2011) (“Decides to refer the situation in the Libyan
Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;”).
132

Refer to § 18.20.3 (The International Criminal Court (ICC) Created by the Rome Statute).

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that treaty. 133 These treaties provide that each Party undertakes to cooperate with any
investigation that the Security Council may initiate. 134 In addition, these treaties impose anadditional obligation on Parties to provide or support assistance to Parties that request assistanceif the Security Council has made an appropriate decision. 135
18.12.5.2 U.N. Security Council and the Chemical Weapons Convention. The
Chemical Weapons Convention provides that the Conference of the States Parties shall, in casesof particular gravity, bring the issue, including relevant information and conclusions, to theattention of the U.N. General Assembly and the U.N. Security Council. 136
18.12.5.3 U.N. Security Council Role in the Statute of the International Court ofJustice. Under the Statute of the International Court of Justice, a party to a case may haverecourse to the Security Council if an opposing party fails to perform the obligations incumbent
upon it under a judgment rendered by the Court. 137
18.13 NATIONAL INVESTIGATIONS OF ALLEGED VIOLATIONS OF THE LAW OF WAR
The duties to implement and enforce the law of war also imply duties to investigate

133

BIOLOGICAL WEAPONS CONVENTION art. 6(1) (“Any State Party to this Convention which finds that any otherState Party is acting in breach of obligations deriving from the provisions of the Convention may lodge a complaint
with the Security Council of the United Nations. Such a complaint should include all possible evidence confirming
its validity, as well as a request for its consideration by the Security Council.”); ENMOD Convention art. 5(3) (“AnyState Party to this Convention which has reason to believe that any other State Party is acting in breach ofobligations deriving from the provisions of the Convention may lodge a complaint with the Security Council of theUnited Nations. Such a complaint should include all relevant information as well as all possible evidence
supporting its validity.”).

134

BIOLOGICAL WEAPONS CONVENTION art. 6(2) (“Each State Party to this Convention undertakes to co-operate incarrying out any investigation which the Security Council may initiate, in accordance with the provisions of theCharter of the United Nations, on the basis of the complaint received by the Council. The Security Council shallinform the States Parties to the Convention of the results of the investigation.”); ENMOD CONVENTION art. 5(4)(“Each State Party to this Convention undertakes to co-operate in carrying out any investigation which the Security
Council may initiate, in accordance with the provisions of the Charter of the United Nations, on the basis of thecomplaint received by the Council. The Security Council shall inform the States Parties of the results of theinvestigation.”).

135

BIOLOGICAL WEAPONS CONVENTION art. 7 (“Each State Party to this Convention undertakes to provide or
support assistance, in accordance with the United Nations Charter, to any Party to the Convention which so requests,
if the Security Council decides that such Party has been exposed to danger as a result of violation of theConvention.”); ENMOD CONVENTION art. 5(5) (“Each State Party to this Convention undertakes to provide or
support assistance, in accordance with the provisions of the Charter of the United Nations, to any State Party which
so requests, if the Security Council decides that such Party has been harmed or is likely to be harmed as a result of
violation of the Convention.”).
136

CHEMICAL WEAPONS CONVENTION art. 12(4) (“The Conference shall, in cases of particular gravity, bring theissue, including relevant information and conclusions, to the attention of the United Nations General Assembly andthe United Nations Security Council.”).
137
ICJ STATUTE art. 94(2) (“If any party to a case fails to perform the obligations incumbent upon it under ajudgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems
necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”).

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reports of alleged violations of the law of war. 138 In addition to taking measures to meet therequirements of DoD policy, commanders may also take other measures they deem appropriate
to ensure appropriate investigation and reporting of alleged violations of the law of war within
their command. 139
18.13.1 DoD Policy on Reporting Law of War Violations. DoD policy has required thereporting of possible, suspected, or alleged violations of the law of war for which there iscredible information, or conduct during military operations other than war that would constitute a
violation of the law of war if it occurred during armed conflict (“reportable incidents”). 140 Suchpolicy has been in addition to other DoD policies that address the reporting of criminal
incidents. 141 Individual Military Services have implemented procedures to ensure that incidents,
including war crimes, are promptly reported. 142
18.13.1.1 Requirement for All Military and U.S. Civilian Employees, Contractor
Personnel, and Subcontractors Assigned to or Accompanying a DoD Component. DoD policy
has required that all military and U.S. civilian employees, contractor personnel, and138

See United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1271 (“Acommanding general of occupied territory is charged with the duty of maintaining peace and order, punishing crime,and protecting lives and property within the area of his command. His responsibility is coextensive with his area ofcommand. He is charged with notice of occurrences taking place within that territory. He may require adequate
reports of all occurrences that come within the scope of his power and, if such reports are incomplete or otherwise
inadequate, he is obliged to require supplementary reports to apprize him of all the pertinent facts. If he fails torequire and obtain complete information, the dereliction of duty rests upon him and he is in no position to plead his
own dereliction as a defense. … Want of knowledge of the contents of reports made to him is not a defense. Reports
to commanding generals are made for their special benefit. Any failure to acquaint themselves with the contents ofsuch reports, or a failure to require additional reports where inadequacy appears on their face, constitutes adereliction of duty which he cannot use in his own behalf.”).
139

For example, Defense Legal Policy Board, Report of the Subcommittee on Military Justice in Combat Zones, 54(May 30, 2013) (“In 2009, USCENTCOM issued two fragmentary orders (FRAGOs) related to LOAC incident
reports and ‘legal reporting.’ USCENTCOM issued the FRAGOs because of perceived ‘lack of timely notifications
and spotty recurring reports.’ The FRAGOs established timeline requirements for reports and described theinformation expected to be included in LOAC reports. For example, the FRAGOs required reporting units withknowledge of a suspected LOAC violation to transmit information to USCENTCOM within two hours through theService component and operational chains of command, irrespective of accuracy or detail. Follow-up was also
required within 24-48 hours with expanded information. The FRAGOs also required formal and informal
investigations to be forwarded to the USCENTCOM Staff Judge Advocate as soon as available and before
submission to organizations outside the USCENTCOM area of responsibility (AOR). The FRAGOs mandated that
initial and subsequent reports contain the ‘5 W’s’ of the incident and additional, operationally relevant data.
Further, the FRAGOs clarified the USCENTCOM requirement for weekly Judge Advocate activity reports, andmandated that ARCENT (Army Central) maintain a generic email address to receive LOAC reports.”).
140

DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶3.2 (May 9, 2006, Certified Current as of Feb. 22, 2011)(“Reportable Incident. A possible, suspected, or alleged violation of the law of war, for which there is credible
information, or conduct during military operations other than war that would constitute a violation of the law of war
if it occurred during an armed conflict.”); DOD DIRECTIVE 5100.77, DoD Law of War Program, ¶3.2 (Dec. 9, 1998)(“Reportable Incident. A possible, suspected, or alleged violation of the law of war.”).
141

See, e.g., DOD DIRECTIVE 7730.47, Defense Incident-Based Reporting System (DIBRS) (Oct. 15, 1996); DOD
INSTRUCTION 5240.4, Reporting of Counterintelligence and Criminal Violations (Sept. 22, 1992).
142

See, e.g., DEPARTMENT OF THE ARMY REGULATION 190-45, Law Enforcement Reporting (Mar. 30, 2007),
Chapters 8 and 9.

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subcontractors assigned to or accompanying a DoD Component shall report reportable incidents
through their chain of command. Contracts shall require contractor employees to reportreportable incidents to the commander of the unit they are accompanying or the installation towhich they are assigned, or to the Combatant Commander. 143
18.13.1.2 Requirement for Unit Commanders. DoD policy has required that thecommander of any unit that obtains information about a reportable incident shall immediately
report the incident through the applicable operational command and Military Department. 144
18.13.2 DoD Policy on Investigating Law of War Violations. DoD policy has requiredthat all reportable incidents be thoroughly investigated. 145 All the Military Departments andServices have regulations for the conduct of both formal and informal administrative
investigations. 146
In addition, DoD policy has required that higher authorities receiving an initial report
request a formal investigation by the cognizant military criminal investigative organization. 147
18.14 INTERNATIONAL MECHANISMS TO INVESTIGATE ALLEGED LAW OF WAR VIOLATIONS
In some cases, international mechanisms, such as commissions of inquiry, may be used to143

DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶6.3 (May 9, 2006, Certified Current as of Feb. 22, 2011)(“All military and U.S. civilian employees, contractor personnel, and subcontractors assigned to or accompanying a
DoD Component shall report reportable incidents through their chain of command. Contracts shall require
contractor employees to report reportable incidents to the commander of the unit they are accompanying or the
installation to which they are assigned, or to the Combatant Commander. Such reports may be made through otherchannels, such as the military police, a judge advocate, or an inspector general. Reports made to officials other thanthose specified in this paragraph shall, nonetheless, be accepted and immediately forwarded through the recipient's
chain of command.”).

144

DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶6.4 (May 9, 2006, Certified Current as of Feb. 22, 2011)(“Initial Report. The commander of any unit that obtains information about a reportable incident shall immediately
report the incident through the applicable operational command and Military Department. Reporting requirements
are concurrent. The initial report shall be made through the most expeditious means available.”).
145

DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶4.4 (May 9, 2006, Certified Current as of Feb. 22, 2011)(“All reportable incidents committed by or against U.S. personnel, enemy persons, or any other individual arereported promptly, investigated thoroughly, and, where appropriate, remedied by corrective action.”); DOD
DIRECTIVE 5100.77, DoD Law of War Program, ¶4.3 (Dec. 9, 1998) (“All reportable incidents committed by oragainst U.S. or enemy persons are promptly reported, thoroughly investigated, and, where appropriate, remedied bycorrective action.”); DOD DIRECTIVE 5100.77, DoD Law of War Program, ¶C(2) (Jul. 10, 1979) (“Alleged
violations of the law of war, whether committed by or against U.S. or enemy personnel, are promptly reported,
thoroughly investigated, and, whether appropriate, remedied by corrective action.”); DOD DIRECTIVE 5100.77, DoD
Program for the Implementation of the Law of War, ¶II(C) (Nov. 5, 1974) (“Ensure that alleged violations of the lawof war, whether committed by U. S. personnel or enemy personnel, are promptly reported, thoroughly investigated,
and, where appropriate, remedied by corrective action.”).
146

See, e.g., DEPARTMENT OF THE NAVY JUDGE ADVOCATE GENERAL INSTRUCTION 5800.7D, Manual of the Judge
Advocate General (JAGMAN), Chapter II (Mar. 15, 2004); DEPARTMENT OF THE ARMY REGULATION 15-6,
Procedures for Investigating Officers and Boards of Officers (Nov. 2, 2006).
147

DOD DIRECTIVE 2311.01E, DoD Law of War Program, ¶6.4 (May 9, 2006, Certified Current as of Feb. 22,2011). Such organizations include U.S. Army Criminal Investigation Command (USACIDC/CID), Air Force
Special Investigations Command (AFOSI/OSI), or the Naval Criminal Investigative Service (NCIS).

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investigate alleged law of war violations. Commissions of inquiry might be established bytreaty. 148 Commissions of inquiry might also be established by the U.N. Security Council. 149
18.14.1 Inquiry Procedure in the 1949 Geneva Conventions. At the request of a party to
the conflict, an inquiry shall be instituted, in a manner to be decided between the interested
Parties, concerning any alleged violation of the 1949 Geneva Conventions. 150 If agreement has
not been reached concerning the procedure for the inquiry, the Parties should agree on the choiceof an “umpire” who will decide upon the procedure to be followed. 151 Once the violation has
been established, the parties to the conflict “shall put an end to it and shall repress it with theleast possible delay.” 152
18.14.1.1 AP I – International Humanitarian Fact-Finding Commission (IHFFC).
AP I provides for the establishment of an international fact-finding commission. 153 This
commission is competent: (1) to inquire into any facts alleged to be a grave breach as defined in
the 1949 Geneva Conventions and AP I or other serious violation of the 1949 Geneva
Conventions or of AP I; and (2) to facilitate, through its good offices, the restoration of an
attitude of respect for the Conventions and AP I. 154

148

For example, Treaty for the Settlement of disputes that may occur between the United States of America andChile, art. 1, Jul. 24, 1914, 39 STAT. 1645, 1646 (“The High Contracting Parties agree that all disputes that may
arise in the future between them, shall, when diplomatic methods of adjustment have failed, be submitted forinvestigation and report to an International Commission to be constituted in the manner prescribed in the next
succeeding article; and they agree not to declare war or begin hostilities during such investigation, nor before all
resources stipulated in this treaty have proved unsuccessful.”); Convention for the Pacific Settlement of International
Disputes, art. 9, Oct. 18, 1907, 36 STAT. 2199, 2214 (“In disputes of an international nature involving neither honour
nor vital interests, and arising from a difference of opinion on points of fact, the Contracting Powers deem it
expedient and desirable that the parties who have not been able to come to an agreement by means of diplomacy,
should, as far as circumstances allow, institute an International Commission of Inquiry, to facilitate a solution ofthese disputes by elucidating the facts by means of an impartial and conscientious investigation.”); Convention for
the Pacific Settlement of International Disputes, art. 9, Jul. 29, 1899, 32 STAT. 1779, 1787 (“In differences of aninternational nature involving neither honour nor vital interests, and arising from a difference of opinion on points offact, the Signatory Powers recommend that the parties, who have not been able to come to an agreement by meansof diplomacy, should as far as circumstances allow, institute an International Commission of Inquiry, to facilitate asolution of these differences by elucidating the facts by means of an impartial and conscientious investigation.”).
149

Refer to § 18.12.1 (Investigation by the U.N. Security Council Under the Charter of the United Nations).

150

GWS art. 52 (“At the request of a Party to the conflict, an enquiry shall be instituted, in a manner to be decided
between the interested Parties, concerning any alleged violation of the Convention.”); GWS-SEA art. 53 (same);
GPW art. 132 (same); GC art. 149 (same).
151

GWS art. 52 (“If agreement has not been reached concerning the procedure for the enquiry, the Parties should
agree on the choice of an umpire who will decide upon the procedure to be followed.”); GWS-SEA art. 53 (same);
GPW art. 132 (same); GC art. 149 (same).
152

GWS art. 52 (“Once the violation has been established, the Parties to the conflict shall put an end to it and shallrepress it with the least possible delay.”); GWS-SEA art. 53 (same); GPW art. 132 (same); GC art. 149 (same).
153

AP I art. 90 (“An International Fact-Finding Commission 443 (hereinafter referred to as ‘the Commission’)consisting of fifteen members of high moral standing and acknowledged impartiality shall be established.”).

154

AP I art. 90(2)(c)(i-ii) (“The Commission shall be competent to: (i) Enquire into any facts alleged to be a grave
breach as defined in the Conventions and this Protocol or other serious violation of the Conventions or of this1102

The commission operates on the basis of mutual consent. Any party to a conflict may ask
the commission to conduct an inquiry; but, unless the States involved previously declared thatthey recognize ipso facto and without special agreement, in relation to any other Party to AP I
accepting the same obligation, the competence of the Commission, the Commission will only
investigate with the consent of the States involved. 155
Although the IHFFC was officially constituted in 1991, it has not been used in its firsttwo decades. 156
The United States has not ratified AP I, and has not recognized the competence of the
IHFFC.
18.15 PROTECTING POWER AND OTHER NEUTRAL INTERMEDIARIESThe Protecting Power is an organ for the implementation of the 1949 Geneva
Conventions and the 1954 Hague Cultural Property Convention.
18.15.1 Background on the Protecting Power. Under international law, a State that lacks
normal diplomatic relations with a second State may, with the consent of the second State,
designate a third State act to protect the first State’s interests as they relate to the second State. 157
This third State is often called a Protecting Power. A State could be a Protecting Power for the
purposes of more than one treaty.
18.15.1.1 Protecting Power Under the 1949 Geneva Conventions. Under the1949 Geneva Conventions, belligerents may designate neutral States as “Protecting Powers” tohelp implement the Geneva Conventions. Specifically, the 1949 Geneva Conventions providethat the Conventions shall be applied with the cooperation and under the scrutiny of theProtocol; (ii) Facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and thisProtocol.”).
155

AP I art. 90(2) (“(a) The High Contracting Parties may at the time of signing, ratifying or acceding to theProtocol, or at any other subsequent time, declare that they recognize ipso facto and without special agreement, in
relation to any other High Contracting Party accepting the same obligation, the competence of the Commission toinquire into allegations by such other Party, as authorized by this Article; … (d) In other situations, the Commission
shall institute an inquiry at the request of a Party to the conflict only with the consent of the other Party or Parties
concerned;”).
156

Charles Garraway, Fact-Finding and the International Humanitarian Fact-Finding Commission, in MORTENBERGSMO, QUALITY CONTROL IN FACT-FINDING 443 (Nov. 16, 2013) (“It is regrettable that in the two decades that
the Commission has been established, it has never been called into action. In the early days, little was known of theCommission, but in recent years, a series of promotional activities have been undertaken to raise consciousness
amongst States. In the view of the Commission, it has an important role to play in the modern world and is anxious
to fulfil this.”).
157

Vienna Convention on Diplomatic Relations, art. 45, Apr. 18, 1961, 500 UNTS 95, 122 (“If diplomatic relations
are broken off between two States, or if a mission is permanently or temporarily recalled: … (c) The sending State
may entrust the protection of its interests and those of its nationals to a third State acceptable to the receiving
State.”).

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Protecting Powers whose duty it is to safeguard the interests of the parties to the conflict. 158
The Detaining Power has an obligation to seek a Protecting Power if the wounded andsick, shipwrecked, medical personnel and chaplains, POWs, or protected persons under the GC
in its custody do not benefit from one. 159 If such protection cannot be arranged, the 1949
Geneva Conventions contemplate that States will use the ICRC or another impartial
humanitarian organization to assume the humanitarian functions performed by Protecting
Powers. 160
18.15.1.2 Protecting Power Under the 1954 Hague Cultural Property
Convention. The 1954 Hague Cultural Property Convention provides that it and the Regulations
for its execution shall be applied with the co-operation of the Protecting Powers responsible forsafeguarding the interests of the parties to the conflict. 161
18.15.2 Appointment of a Protecting Power. Within a State, the appointment of aProtecting Power is a decision made by authorities at the national level. Among States, theappointment of a Protecting Power requires the consent of the States whose relations are to betransacted through the Protecting Power. For example, during an international armed conflict,
the U.S. designation of a neutral State as its Protecting Power would require agreement of theenemy State, but the consent of States allied with the United States would not be required.
The State appointed to be a Protecting Power must be able to fulfill the Protecting
Power’s responsibilities. 162 This State should be neutral or non-belligerent with respect to theconflict in question. 163 However, the State need not be a traditionally neutral power, such as
Sweden or Switzerland. 164 In cases where a State serving as a Protecting Power enters the armed
158

GWS art. 8 (“The present Convention shall be applied with the cooperation and under the scrutiny of theProtecting Powers whose duty it is to safeguard the interests of the Parties to the conflict.”); GWS-SEA art. 8 (same);
GPW art. 8 (same); GC art. 9 (same).
159

Refer to § 18.15.2.2 (Obligation on the Detaining Power to Seek a Protecting Power if Persons Protected by the1949 Geneva Conventions Do Not Benefit From One).
160

Refer to § 18.15.2.3 (Impartial Humanitarian Organizations Assuming Humanitarian Functions Performed byProtecting Powers Under the 1949 Geneva Conventions).
161

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 21 (“The present Convention and the Regulations for its
execution shall be applied with the co-operation of the Protecting Powers responsible for safeguarding the interestsof the Parties to the conflict.”).

162

See GWS art. 10 (States and organizations fulfilling the duties of a Protecting Power “shall be required to act
with a sense of responsibility towards the Party to the conflict on which persons protected by the present Convention
depend, and shall be required to furnish sufficient assurances that it is in a position to undertake the appropriate
functions and to discharge them impartially.”); GWS-SEA art. 10 (same); GPW art. 10 (same); GC art. 11 (same).
163

See GWS art. 10 (When persons protected by the Convention do not benefit from a Protecting Power, “theDetaining Power shall request a neutral State, or such an organization, to undertake the functions performed under
the present Convention by a Protecting Power designated by the Parties to a conflict.”); GWS-SEA art. 10 (same);
GPW art. 10 (same); GC art. 11 (same). Cf. GWS art. 8 (contemplating that “Protecting Powers may appoint, apartfrom their diplomatic or consular staff, delegates from amongst their own nationals or the nationals of other neutral
Powers) (emphasis added); GWS-SEA art. 8 (same); GPW art. 8 (same); GC art. 9 (same).
164

For example, during the Franco-Prussian War (1870-71), “Great Britain was charged with the protection of theFrench in Germany; and the United States, Russia, and Switzerland acted as Protecting Powers in France for the1104

conflict, another State may assume the responsibilities of the Protecting Power. 165 A State may
serve as the Protecting Power for more than one side in an armed conflict. 166
18.15.2.1 Agreement for an Impartial and Effective Organization to Perform
Protecting Power Duties Under the 1949 Geneva Conventions. The Parties to the 1949 Geneva
Conventions may at any time agree to entrust to an organization that offers all guarantees of
impartiality and efficacy the duties incumbent on Protecting Powers by virtue of the 1949
Geneva Conventions. 167
18.15.2.2 Obligation on the Detaining Power to Seek a Protecting Power if
Persons Protected by the 1949 Geneva Conventions Do Not Benefit From One. When thewounded and sick, shipwrecked, medical personnel and chaplains, POWs, or protected persons
under the GC do not benefit or cease to benefit from the activities of a Protecting Power or an
impartial and effective organization that performs the duties of the Protecting Power, theDetaining Power shall request a neutral State or such an organization to undertake the functions
performed under the 1949 Geneva Conventions by a Protecting Power designated by the parties
to a conflict. 168
18.15.2.3 Impartial Humanitarian Organizations Assuming Humanitarian
Functions Performed by Protecting Powers Under the 1949 Geneva Conventions. If thevarious German States.” LEVIE, POWS 256. At various times during World War II, “Spain acted as the Protecting
Power for Japan in the continental United States, while Sweden acted for her in Hawaii, and Switzerland in
American Samoa.” LEVIE, POWS 257.
165

See LEVIE, POWS 259 (“The practice was adopted that when a neutral which had been acting as a Protecting
Power itself became embroiled in the conflict, a successor Protecting Power would be designated to fill thevacuum.”).
166

For example, during the “Sino-Japanese War (1894-95) each side requested the United States to act as its
Protecting Power, and so we find the same State acting as the Protecting Power for each belligerent within the
territory of the other.” LEVIE, POWS 257.
167

GWS art. 10 (“The High Contracting Parties may at any time agree to entrust to an organization which offers all
guarantees of impartiality and efficacy the duties incumbent on the Protecting Powers by virtue of the present
Convention.”); GWS-SEA art. 11 (same); GPW art. 10 (same); GC art. 11 (same).
168

GWS art. 10 (“When wounded and sick, or medical personnel and chaplains do not benefit or cease to benefit, nomatter for what reason, by the activities of a Protecting Power or of an organization provided for in the firstparagraph above, the Detaining Power shall request a neutral State, or such an organization, to undertake thefunctions performed under the present Convention by a Protecting Power designated by the Parties to a conflict.”);GWS-SEA art. 10 (“When wounded, sick and shipwrecked, or medical personnel and chaplains do not benefit orcease to benefit, no matter for what reason, by the activities of a Protecting Power or of an organization provided forin the first paragraph above, the Detaining Power shall request a neutral State, or such an organization, to undertakethe functions performed under the present Convention by a Protecting Power designated by the Parties to aconflict.”); GPW art. 10 (“When prisoners of war do not benefit or cease to benefit, no matter for what reason, by
the activities of a Protecting Power or of an organization provided for in the first paragraph above, the Detaining
Power shall request a neutral State, or such an organization, to undertake the functions performed under the present
Convention by a Protecting Power designated by the Parties to a conflict.”); GC art. 11 (“When persons protected by
the present Convention do not benefit or cease to benefit, no matter for what reason, by the activities of a Protecting
Power or of an organization provided for in the first paragraph above, the Detaining Power shall request a neutral
State, or such an organization, to undertake the functions performed under the present Convention by a Protecting
Power designated by the Parties to a conflict.”).

1105

protection of a Protecting Power or an impartial and effective organization that the performs theduties of the Protecting Power cannot be arranged, the 1949 Geneva Conventions contemplatethat States will use the ICRC or another impartial humanitarian organization to assume thehumanitarian functions performed by Protecting Powers. 169
The ICRC has often performed such a role during armed conflict. 170
18.15.3 Activities of the Protecting Power. A Protecting Power assists and verifies
compliance with the 1949 Geneva Conventions. For example, under the GPW and GC, theProtecting Power transmits information between belligerents, monitors compliance by the
Detaining Power, and takes an active role in promoting the welfare of POWs and protected
persons. 171
The Protecting Power’s activities are conducted with the consent of the State on whose
territory it serves and the State whose facilities it visits. For example, the delegates of theProtecting Power are subject to the approval of the Power with which they are to carry out theirduties. 172 In addition, a Protecting Power must ensure that its delegation does not exceed its
humanitarian responsibilities and takes into account the imperative necessities of security of theState wherein they carry out their duties. 173
18.15.4 Lending of Good Offices to Assist in Dispute Resolution. The 1949 Geneva
Conventions contemplate that Protecting Powers shall lend their good offices with a view tosettling disagreements between the parties to the conflict regarding protected persons,particularly in cases regarding the application or interpretation of the 1949 Geneva
Conventions. 174 Protecting Powers may propose to the parties to the conflict a representative ofa neutral Power or the ICRC to participate in the meeting. 175 This mechanism developed from169

See GWS art. 10 (“If protection cannot be arranged accordingly, the Detaining Power shall request or shallaccept, subject to the provisions of this Article, the offer of the services of a humanitarian organization, such as theInternational Committee of the Red Cross, to assume the humanitarian functions performed by Protecting Powers
under the present Convention.”); GWS-SEA art. 10 (same); GPW art. 10 (same); GC art. 11 (same).
170

For example, FINAL REPORT ON THE PERSIAN GULF WAR 617 (During the 1991 Persian Gulf War, “[t]heInternational Committee of the Red Cross (ICRC) was provided access to Coalition EPW facilities and reviewed
their findings with Coalition representatives in periodic meetings in Riyadh, Saudi Arabia.”).
171

Refer to § 9.32 (Role of the Protecting Power in the GPW); § 10.32 (Role of the Protecting Power in the GC).

172

Refer to § 4.25.1 (Appointment of Delegates of the Protecting Powers).

173

Refer to § 4.25.2 (Duties of the Representatives or Delegates of the Protecting Power).

174

See GWS art. 11 (“In cases where they deem it advisable in the interest of protected persons, particularly in casesof disagreement between the Parties to the conflict as to the application or interpretation of the provisions of thepresent Convention, the Protecting Powers shall lend their good offices with a view to settling the disagreement.”);GWS-SEA art. 11 (same); GPW art. 11 (same); GC art. 12 (same).
175
See GWS art. 11 (“The Protecting Powers may, if necessary, propose for approval by the Parties to the conflict a
person belonging to a neutral Power, or delegated by the International Committee of the Red Cross, who shall be
invited to take part in such a meeting.”); GWS-SEA art. 11 (same); GPW art. 11 (same); GC art. 12 (same).

1106

State practice during World War I. 176
The 1954 Hague Cultural Property Convention also contemplates that Protecting Powers
shall lend their good offices in all cases where they may deem it useful in the interests of culturalproperty, particularly if there is disagreement between the parties to the conflict as to theapplication or interpretation of the provisions of the 1954 Hague Cultural Property Convention
or the Regulations for its execution. 177 The Director-General of the United Nations Educational,
Scientific, and Cultural Organization can also have a role in this process. 178
18.16 COMPENSATION FOR VIOLATIONS OF THE LAW OF WAR
A State that is responsible for an internationally wrongful act is under an obligation to
make full reparation for the injury caused by that act. 179 This principle also applies to the law of
war in that a State that violates the law of war shall, if the case demands, be liable to pay
compensation. 180
18.16.1 Agreements Between States Settling Claims. Claims may be addressed byinternational agreements between States. 181

176

See GPW COMMENTARY 125 (“This idea of arranging a meeting of the representatives of the Parties to theconflict on neutral territory suitably chosen is very largely the result of experience gained during the First World
War, when such meetings, which were fairly frequent, led to the conclusion of special agreements on the treatmentof prisoners of war and on other problems of a humanitarian nature.”).
177

REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 22(1) (“TheProtecting Powers shall lend their good offices in all cases where they may deem it useful in the interests of culturalproperty, particularly if there is disagreement between the Parties to the conflict as to the application orinterpretation of the provisions of the present Convention or the Regulations for its execution.”).

178

REGULATIONS FOR THE EXECUTION OF THE 1954 HAGUE CULTURAL PROPERTY CONVENTION art. 22(2) (“For thispurpose, each of the Protecting Powers may, either at the invitation of one Party, of the Director-General of theUnited Nations Educational, Scientific and Cultural Organization, or on its own initiative, propose to the Parties tothe conflict a meeting of their representatives, and in particular of the authorities responsible for the protection ofcultural property, if considered appropriate on suitably chosen neutral territory. The Parties to the conflict shall bebound to give effect to the proposals for meeting made to them. The Protecting Powers shall propose for approvalby the Parties to the conflict a person belonging to a neutral Power or a person presented by the Director-General of
the United Nations Educational, Scientific and Cultural Organization, which person shall be invited to take part insuch a meeting in the capacity of Chairman.”).

179

U.N. International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful Acts,
with commentaries, art. 1 (2001) (“Every internationally wrongful act of a State entails the international
responsibility of that State.”); id. at art. 31(1) (“The responsible State is under an obligation to make full reparation
for the injury caused by the internationally wrongful act.”).
180

HAGUE IV art. 3 (“A belligerent party which violates the provisions of the said Regulations shall, if the casedemands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its
armed forces.”).
181

For example, GREENSPAN, MODERN LAW OF LAND WARFARE 405 (“A recent example of the obligation of a state
to pay compensation for war crimes for which it is responsible is the agreement on reparations signed at
Luxembourg on September 10, 1952, between the Federal Republic of Germany (West Germany) and Israel. Thisagreement, together with the appended protocols, provides for the payment by Western Germany to Israel of
3,450,000,000 marks ($822,000,000 or £287,000,000) to make good, within the limits of its capacity, the material
damage caused by the ‘unspeakable criminal acts [which] were perpetrated against the Jewish people during the1107

Peace treaties or other agreements concluded in connection with the cessation of
hostilities have sometimes addressed liability for violations of the law of war committed duringthat conflict. 182 Parties to the 1949 Geneva Conventions, however, cannot absolve one anotherof liability for grave breaches of the Geneva Conventions. 183
18.16.2 International Claims Commissions. Compensation claims have also beenaddressed by international claims commissions established by agreement by the Parties. 184 A
claims commission may also be established by the U.N. Security Council. 185

National Socialist régime of terror.’”) (amendment in original); Dean Acheson, The Secretary of State to the Swiss
Minister, Oct. 21, 1949, 64 STAT. B1097 (“I have the honor to refer to previous correspondence, and also to oral
discussions between officials of your Government and the Government of the United States concerning claims
asserted by your Government for compensation for losses and damages inflicted on persons and property in
Switzerland during World War II by units of the United States armed forces in violation of neutral rights. On behalfof the United States Government, I wish to offer to your Government in full and final settlement of the balance dueon all claims of the character referred to in the preceding paragraph the sum of 62,176,433.06 Swiss francs, which
includes interest through October 21, 1949. The offer is made with the understanding that the Swiss Government
accepts responsibility for making payment of the individual claims involved.”).
182

GREENSPAN, MODERN LAW OF LAND WARFARE 592 (“Even apart from express provision in the peace treaty for
payment of indemnities or reparations, it will be recalled that compensation is payable in a proper case for violationof the rules of warfare. In general, although this last obligation extends beyond the termination of the war, a state
may provide in the peace treaty for the extinguishment or restriction of its liability in this connection.”).
183

Refer to § 18.9.3 (Grave Breaches of the 1949 Geneva Conventions).

184

For example, Agreement Between the Government of the State of Eritrea and the Government of the Federal
Democratic Republic of Ethiopia, art. 5(1), Dec. 12, 2000, 2138 UNTS 93, 97 (“Consistent with the Framework
Agreement, in which the parties commit themselves to addressing the negative socio-economic impact of the crisison the civilian population, including the impact on those persons who have been deported, a neutral ClaimsCommission shall be established. The mandate of the Commission is to decide through binding arbitration all
claims for loss, damage or injury by one Government against the other, and by nationals (including both natural andjuridical persons) of one party against the Government of the other party or entities owned or controlled by the otherparty that are (a) related to the conflict that was the subject of the Framework Agreement, the Modalities for its
Implementation and the Cessation of Hostilities Agreement, and (b) result from violations of international
humanitarian law, including the 1949 Geneva Conventions, or other violations of international law. The
Commission shall not hear claims arising from the cost of military operations, preparing for military operations, orthe use of force, except to the extent that such claims involve violations of international humanitarian law.”); Treaty
between the United States and Great Britain, art. 1, May 8, 1871, 17 STAT. 863, 863-64 (“Whereas differences havearisen between the Government of the United States and the Government of Her Britannic Majesty, and still exist,
growing out of the Acts committed by the several vessels which have given rise to the claims generically known as
the ‘Alabama Claims.’ And whereas Her Britannic Majesty has authorized Her High Commissioners andPlenipotentiaries to express, in a friendly spirit, the regret felt by Her Majesty’s Government for the escape, underwhatever circumstances, of the Alabama and other vessels from British ports, and for the depredations committed bythose vessels: Now, in order to remove and adjust all complaints and claims on the part of the United States, and toprovide for the speedy settlement of such claims, which are not admitted by Her Britannic Majesty’s Government,
the High Contracting Parties agree that all the said claims, growing out of acts committed by the aforesaid vessels
and generically known as the ‘Alabama Claims,’ shall be referred to a Tribunal of Arbitration to be composed offive Arbitrators, … .”).
185

U.N. SECURITY COUNCIL RESOLUTION 687, U.N. Doc S/RES/687, ¶¶ 16-18 (Apr. 3, 1991) (establishing authority
for the U.N. Compensation Commission to provide a reparation mechanism for violations of international law and“any direct loss, damage, including environmental damage and the depletion of natural resources, or injury toforeign governments, national and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait.”).

1108

18.16.3 Payment or Other Compensation Ex Gratia. In some cases, States may provide
money or other compensation to other States where not legally required (or without an admissionof legal liability or fault). 186 For example, although indemnification is not required for injuries
or damage incidental to the lawful use of armed force, compensation may be provided as ahumanitarian gesture. 187 Similarly, a State may institute mechanisms to make payments toforeign persons who have suffered loss from combat operations, even when no violation of law
of war has occurred.
18.16.4 No Private Right to Compensation Under Customary International Law or the1949 Geneva Conventions. The responsibility of States for violations of the law of war
committed by their agents is owed to other States. 188 The fact that such responsibility is owed toother States reflects the predominately inter-State nature of international obligations. 189
186

For example, Communication of the United States Government, Jul. 31, 1945, reprinted in Offer of Ship to
Replace “Awa Maru,” 13 DEPARTMENT OF STATE BULLETIN 249, 249-50 (Aug. 12, 1945) (“‘The United States
Government realizes that the deplorable accidental sinking of the Awa Maru prevented the Japanese Government
from giving immediate effect to its announced intention to continue to facilitate the shipment and distribution ofrelief supplies for Allied nationals. In order, therefore, to assist in overcoming this difficulty the United States
Government makes the following offer to the Japanese Government, not as present indemnification for the Awa
Maru (the suggestion having previously been made that owing to the complex nature of the question of indemnity,that matter might be deferred until the termination of hostilities) but as a replacement for the Awa Maru in its
humanitarian service.’ ‘The United States Government is prepared immediately to transfer to the Japanese
Government a vessel described below of approximately the same size and characteristics as the Awa Maru,
conditioned upon the express agreement by the Japanese Government to use the vessel so transferred for thefollowing purposes and no others … .’”).
187

For example, Abraham Sofaer, Legal Adviser, Department of State, Compensation for Iranian Airbus Tragedy,
88 DEPARTMENT OF STATE BULLETIN 58 (Oct. 1988) (“Principles of international law that govern potential liability
for injuries and property damage arising out of military operations are generally well-established. First,
indemnification is not required for injuries or damage incidental to the lawful use of armed force. Second,
indemnification is required where the exercise of armed force is unlawful. Third, states may, nevertheless, pay
compensation ex gratia without acknowledging, and irrespective of, legal liability. … In the case of the Iran Air
incident, the damage caused in firing upon #655 was incidental to the lawful use of force. The Government of Iranshould not have allowed gunboats to attack our vessels and aircraft. That government also should not have allowed
a passenger airline to fly over a battle zone—especially not unless it was equipped and prepared to respond to our
Navy’s repeated warnings. The commander of the U.S.S. Vincennes evidently believed that his ship was underimminent threat of attack from a hostile aircraft, and he attempted repeatedly to identify or contact the aircraft before
taking defensive action. Therefore, the United States does not accept legal responsibility for this incident and is notpaying ‘reparations,’ a word which implies wrongdoing and is often associated with wartime activities. Instead, thePresident has decided to make an ex gratia payment as a humanitarian gesture to the families of the individuals who
were on #655.”).
188

See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 789 footnote 14 (1950) (“We are not holding that these prisoners
have no right which the military authorities are bound to respect. The United States, by the Geneva Convention ofJuly 27, 1929, 47 Stat. 2021, concluded with forty-six other countries, including the German Reich, an agreement
upon the treatment to be accorded captives. These prisoners claim to be and are entitled to its protection. It is,however, the obvious scheme of the Agreement that responsibility for observance and enforcement of these rights isupon political and military authorities. Rights of alien enemies are vindicated under it only through protests andintervention of protecting powers as the rights of our citizens against foreign governments are vindicated only by
Presidential intervention.”); Juragua Iron Co. v. United States, 212 U.S. 297, 308 (1909) (“It is true that the army,
under General Miles, was under a duty to observe the rules governing the conduct of independent nations whenengaged in war — a duty for the proper performance of which the United States may have been responsible in its
political capacity to the enemy government.”).
189

Refer to § 1.10.1.3 (Predominately Inter-State Nature of International Obligations).

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Customary international law and the 1949 Geneva Conventions do not provide a private right forindividuals to claim compensation directly from a State; rather, such claims are made by otherStates. 190
18.17 RETORSION
Retorsion is one of the measures that an injured party may use to seek to persuade an
adversary to cease violations of the law of war.
Retorsion may be understood to mean unfriendly conduct, (1) which is not inconsistent
with any international obligation of the State engaging in it, and (2) which is done in response to
an internationally wrongful act. 191 Retorsion is frequently contrasted with reprisal, which
involves measures that would otherwise be unlawful. 192
Because retorsion, by definition, does not involve the resort to actions that would
ordinarily be characterized as illegal, the stringent conditions that apply to reprisal do not apply
to retorsion. 193
Retorsion is a general remedy available to States under international law and is not
specific to the law of war. Retorsion might be used by States before, or in connection with,military operations (e.g., an economic embargo). Retorsion, however, could also be used to seek
to compel an adversary to adhere to the law of war.
18.18 REPRISALS
Reprisals are extreme measures of coercion used to help enforce the law of war byseeking to persuade an adversary to cease violations.
190

GC COMMENTARY 211 (“One other point should be made clear. The Convention does not give individual men
and women the right to claim compensation. The State is answerable to another contracting State and not to theindividual. On that point the recognized system was not in any way modified in 1949.”); GC COMMENTARY 603(“As regards material compensation for breaches of the Convention, it is inconceivable, at least as the law stands
today, that claimants should be able to bring a direct action for damages against the State in whose service theperson committing the breach was working. Only a State can make such claims on another State, and they form
part, in general, of what is called ‘war reparations.’”).
191

See U.N. International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful
Acts, with commentaries, 128 (2001) (“Countermeasures are to be contrasted with retorsion, i.e. ‘unfriendly’ conduct
which is not inconsistent with any international obligation of the State engaging in it even though it may be a
response to an internationally wrongful act. Acts of retorsion may include the prohibition of or limitations uponnormal diplomatic relations or other contacts, embargoes of various kinds or withdrawal of voluntary aid
programmes.”); GWS COMMENTARY 342 (“A distinction is generally made between reprisals and retortion; thelatter is also a form of retaliation, but the measures taken do not break the law, and are in reply to acts which arethemselves generally admitted to be lawful. The acts in question on both sides are matters within the competence of
the States concerned. A case of retortion would, for example, be the withdrawal by one belligerent from retained
personnel of privileges accorded over and above those accorded under the convention, where the adverse Party had
withdrawn privileges, whether in the same or in another connection, from the corresponding personnel in his
hands.”).
192

Refer to § 18.18.1.2 (Acts That Would Otherwise Be Unlawful).

193

Refer to § 18.18.2 (Conditions for Lawful Reprisals).

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States may resort to reprisals only when certain conditions are met. In addition, there arecertain treaty prohibitions on reprisal, and practical considerations may counsel against their use.
18.18.1 Definition of Reprisal. Reprisals are acts taken against a party: (1) that would
otherwise be unlawful; (2) in order to persuade that party to cease violating the law. 194
For example, during the Civil War, the United States authorized reprisals against
Confederate forces for murdering and enslaving captured Union soldiers. 195 Reprisals against
POWs are now prohibited. 196
18.18.1.1 Reprisal – Notes on Terminology. Some older sources used “reprisal”
in a narrower sense only to refer to taking possession of property of the enemy in response toviolations of the law of war. 197 Some older sources used the term “retaliation” to describe what
is now commonly understood to be “reprisal.” 198
The term “countermeasures” is sometimes used to cover that part of the subject ofreprisals not associated with armed conflict, with the term “reprisals” or “belligerent reprisals”
sometimes reserved for action taken during international armed conflict. 199

194

See GC COMMENTARY 227 (“Reprisals are measures contrary to law, but which, when taken by one State withregard to another State to ensure the cessation of certain acts or to obtain compensation for them, are considered as
lawful in the particular conditions under which they are carried out.”); United States v. Ohlendorf, et al.
(Einsatzgruppen Case), IV TRIALS OF WAR CRIMINALS BEFORE THE NMT 493 (“Reprisals in war are thecommission of acts which, although illegal in themselves, may, under the specific circumstances of the given case,become justified because the guilty adversary has himself behaved illegally, and the action is taken in last resort, inorder to prevent the adversary from behaving illegally in the future.”).
195

Abraham Lincoln, General Order No. 252, Jul. 31, 1863, reprinted in Thos. M. O’Brien & Oliver Diefendorf,
UNITED STATES WAR DEPARTMENT, II GENERAL ORDERS OF THE WAR DEPARTMENT, EMBRACING THE YEARS 1861,
1862 & 1863, 323 (1864) (“It is the duty of every government to give protection to its citizens, of whatever class,color, or condition, and especially to those who are duly organized as soldiers in the public service. The law ofnations and the usages and customs of war, as carried on by civilized powers, permit no distinction as to color in thetreatment of prisoners of war as public enemies. To sell or enslave any captured person on account of his color, andfor no offense against the laws of war, is a relapse into barbarism and a crime against the civilization of the age. The
Government of the United States will give the same protection to all its soldiers, and if the enemy shall sell or
enslave anyone because of his color the offense shall be punished by retaliation upon the enemy’s prisoners in ourpossession. It is therefore ordered, That for every soldier of the United States killed in violation of the laws of war arebel soldier shall be executed, and for every one enslaved by the enemy or sold into slavery a rebel soldier shall beplaced at hard labor on the public works and continued at such labor until the other shall be released and receive thetreatment due to a prisoner of war.”).
196

Refer to § 18.18.3.2 (Reprisals Prohibited by the 1949 Geneva Conventions).

197

See, e.g., WINTHROP, MILITARY LAW & PRECEDENTS 798 (“Reprisal. This further method, above specified,consists in the taking possession of property of the enemy or of his subjects, to be held as indemnity for injury
inflicted in violation of the laws of war, or as security till a pecuniary indemnity be duly rendered.”).

198

LIEBER CODE art. 27 (“The law of war can no more wholly dispense with retaliation than can the law of nations,of which it is a branch. Yet civilized nations acknowledge retaliation as the sternest feature of war. A recklessenemy often leaves to his opponent no other means of securing himself against the repetition of barbarous
outrage.”).

199

U.N. International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful Acts,
with commentaries, 128 (2001) (“As to terminology, traditionally the term ‘reprisals’ was used to cover otherwise1111

18.18.1.2 Acts That Would Otherwise Be Unlawful. Reprisals involve acts thatwould otherwise be unlawful. For example, responding to illegal enemy action by withdrawing
benefits extended to the enemy where such benefits are not legally required would not becharacterized as a reprisal. Rather, such action would be characterized as retorsion, i.e.,
unfriendly conduct that is not inconsistent with any international obligation of the State engaging
in it even though it may be a response to an internationally wrongful act. 200
18.18.1.3 In Order to Persuade a Party to Cease Violating the Law. Reprisals areintended to influence a party to cease committing violations at present and in the future.
Reprisals are not revenge or collective punishment.
18.18.2 Conditions for Lawful Reprisals. Customary international law permits reprisals,
subject to certain conditions.
18.18.2.1 Careful Inquiry That Reprisals Are Justified. Reprisals shall be resorted
to only after a careful inquiry into the facts to determine that the enemy has, in fact, violated thelaw. 201 In many cases, whether a law of war rule has been violated will not be apparent to the
opposing side or outside observers. For example, a bombardment that results in the death ofcivilians may be the result of good faith, reasonable, mistake or may have been justified by theimportance of destroying the military objective against which the bombardment was directed.
18.18.2.2 Exhaustion of Other Means of Securing the Adversary’s ComplianceWith the Law of War. Other means of securing compliance with the law of war should be
exhausted before resorting to reprisals. 202 For example, consideration should be given to using
protests and demands, retorsion, or reasonable notice of the threat to use reprisals before
resorting to reprisals. 203
18.18.2.3 National-Level Authorization for Reprisal. Reprisals require a varietyof conditions and implicate the rights and duties of a State under international law. 204 Thus, theunlawful action, including forcible action, taken by way of self-help in response to a breach. More recently, theterm ‘reprisals’ has been limited to action taken in time of international armed conflict; i.e. it has been taken as
equivalent to belligerent reprisals. The term ‘countermeasures’ covers that part of the subject of reprisals not
associated with armed conflict, and in accordance with modern practice and judicial decisions the term is used inthat sense in this chapter.”).
200

Refer to § 18.17 (Retorsion).

201

LIEBER CODE art. 28 (“Retaliation will therefore never be resorted to as a measure of mere revenge, but only as ameans of protective retribution, and moreover cautiously and unavoidably -- that is to say, retaliation shall only beresorted to after careful inquiry into the real occurrence and the character of the misdeeds that may demand
retribution. Unjust or inconsiderate retaliation removes the belligerents farther and farther from the mitigating rulesof regular war, and by rapid steps leads them nearer to the internecine wars of savages.”).
202

1956 FM 27-10 (Change No. 1 1976) ¶497b (“Priority of Other Remedies. Other means of securing compliancewith the law of war should normally be exhausted before resort is had to reprisals. This course should be pursued
unless the safety of the troops requires immediate drastic action and the persons who actually committed theoffenses cannot be secured.”).
203

Refer to § 18.10 (Methods for Responding to Violations of the Law of War by the Enemy).

204

See Trial of Hans Albin Rauter, Judgment, XIV U.N. LAW REPORTS 89, 132 (Netherlands Special Court ofCassation, Jan. 12, 1949) (“In the proper sense one can speak of reprisals only when a State resorts, by means of its

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authority to conduct reprisal is generally held at the national level. 205 Service members and units
are not to take reprisal action on their own initiative.
18.18.2.4 Proportionality in Reprisal. To be legal, reprisals must respond in a
proportionate manner to the preceding illegal act by the party against which they are taken. 206
Identical reprisals are the easiest to justify as proportionate, because subjective comparisons are
not involved. 207
However, the acts resorted to by way of reprisal need not be identical nor of the same
type as the violations committed by the enemy. A reprisal should not be unreasonable orexcessive compared to the adversary’s violation. 208
18.18.2.5 Public Announcement of Reprisals. In order to fulfill their purpose ofdissuading the adversary from further illegal conduct, reprisals must be made public andorgans, to measures at variance with International Law, on account of the fact that its opponent—in this case theState with which it is at war—had begun, by means of one or more of its organs, to commit acts contrary toInternational Law, quite irrespective of the question as to what organ this may have been, Government or legislator,
Commander of the Fleet, Commander of Land Forces, or of the Air Force, diplomat or colonial governor. The
measures which the appellant describes ... as ‘reprisals’ bear an entirely different character, they are indeed
retaliatory measures taken in time of war by the occupant of enemy territory as a retaliation not of unlawful acts of
the State with which he is at war, but of hostile acts of the population of the territory in question or of individual
members thereof, which, in accordance with the rights of occupation, he is not bound to suffer. Both types of‘reprisals’ have this in common, that the right to take genuine reprisals as well as the alleged competence to take socalled ‘reprisals’ may in principle belong only to the State which applies them, … .”) (first ellipsis in original).
205

For example, 2004 UK MANUAL ¶16.19.2 (“This means that reprisals taken in accordance with the statement are
permissible by and against the United Kingdom. However, commanders and commanders-in-chief are not to takereprisal action on their own initiative. Requests for authority to take reprisal action must be submitted to the
Ministry of Defence and require clearance at Cabinet level.”).
206

Refer to § 2.4 (Proportionality).

207

Larry A. Hammond, Deputy Assistant Attorney General, Possible Participation by the United States in Islamic
Republic of Iran v. Pahlavi, 4A OPINIONS OF THE OFFICE OF LEGAL COUNSEL 160, 163 (1980) (“Customaryinternational law allows reprisals, which are breaches of a treaty’s terms in response to a breach by another party.
To be legal, reprisals must respond in a proportionate manner to a preceding illegal act by the party against whomthey are taken. Identical reprisals are the easiest to justify as proportionate, because subjective comparisons are not
involved. Thus, in the current crisis, the taking of Iranian diplomats as ‘hostages’ (or a lesser restriction on theirfreedom of movement that approaches imprisonment) would clearly be a proportionate response; reducing theimmunity of Iranian diplomats from criminal prosecution would be more difficult to justify.”).
208

See Naulilaa Incident Arbitration, Portuguese-German Arbitral Tribunal, 1928, reprinted and translated in
WILLIAM W. BISHOP, INTERNATIONAL LAW: CASES AND MATERIALS 904 (1971) (“The necessity of a proportion
between the reprisals and the offense would appear to be recognized in the German answer. Even if one admitted
that international law does not require that the reprisal be approximately measured by the offense, one should
certainly consider as excessive, and thus illegal, reprisals out of all proportion with the act which motivated them.
Now in this case ... there has been evident disproportion between the incident of Naulilaa and the six acts of reprisals
which followed it. The arbiters conclude that the German aggressions of October, November and December, 1914,
on the Angola frontier, cannot be considered as lawful reprisals for the Naulilaa incident ... , in view of the lack ofsufficient occasion, of previous demand and of admissible proportion between the alleged offense and the reprisals
taken.”) (ellipses in original).

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announced as such. 209
18.18.3 Treaty Prohibitions on Reprisals. Although reprisals are generally permissible
under customary international law, certain treaties have prohibited certain types of reprisals.
18.18.3.1 Reprisals Prohibited by the CCW Amended Mines Protocol. It is
prohibited in all circumstances to direct mines, booby-traps, and other devices, either in offense,
defense, or by way of reprisals, against the civilian population as such or against individual
civilians or civilian objects. 210
18.18.3.2 Reprisals Prohibited by the 1949 Geneva Conventions. Reprisals
against the wounded, sick, or shipwrecked persons, personnel, buildings, vessels, or equipment
protected by the GWS or GWS-Sea are prohibited. 211 Such persons or property would include:•

combatant personnel who are wounded, sick, or shipwrecked; 212•

medical personnel and chaplains; 213•

medical units and facilities; 214 and•hospital ships. 215
Measures of reprisal against POWs are prohibited. 216

209

Trial of Richard Wilhem Hermann Bruns and two others, III U.N. LAW REPORTS 15, 19 (By the Eidsivating
Lagmannstrett and The Supreme Court of Norway, Mar. 20-Jul. 3, 1946) (“Reprisals were generally understood toaim at changing the adversary’s conduct and forcing him to keep the general accepted rules of lawful warfare. If
this aim were to be achieved, the reprisals must be made public and announced as such.”).
210

CCW AMENDED MINES PROTOCOL art. 3(7) (“It is prohibited in all circumstances to direct weapons to which this
Article applies, either in offence, defence or by way of reprisals, against the civilian population as such or against
individual civilians or civilian objects.”).

211

GWS art. 46 (“Reprisals against the wounded, sick, personnel, buildings or equipment protected by theConvention are prohibited.”); GWS-SEA art. 47 (“Reprisals against the wounded, sick and shipwrecked persons, thepersonnel, the vessels or the equipment protected by the Convention are prohibited.”).
212

Refer to § 7.3.1 (Definitions of Wounded, Sick, and Shipwrecked).

213

Refer to § 7.8 (Respect and Protection of Categories of Medical and Religious Personnel).

214

Refer to § 7.10 (Military Medical Units and Facilities).

215

Refer to § 7.12.1 (Types of Hospital Ships and Coastal Rescue Craft).

216

GPW art. 13 (“Measures of reprisal against prisoners of war are prohibited.”); The Dostler Case, Trial of General
Anton Dostler, I U.N. LAW REPORTS 22, 31 (U.S. Military Commission, Rome, Oct. 8-12, 1945) (“under the law ascodified by the 1929 Convention there can be no legitimate reprisals against prisoners of war. No soldier, and stillless a Commanding General, can be heard to say that he considered the summary shooting of prisoners of war
legitimate even as a reprisal.”); Winston Churchill, Prime Minster, United Kingdom, Oral Answers to Questions,Oct. 13, 1942, HANSARD, 383 HOUSE OF COMMONS DEBATES § 1501 (“The Geneva Convention upon the treatmentof prisoners of war does not attempt to regulate what happens in the actual fighting. It is confined solely to thetreatment of prisoners who have been securely captured and are in the responsible charge of the hostile Government.
Both His Majesty’s Government and the German Government are bound by this Convention. The German

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Reprisals against protected persons under the GC and their property are prohibited. 217
18.18.3.3 Reprisals Prohibited by the 1954 Hague Cultural Property Convention.
Parties to the 1954 Hague Cultural Property Convention shall refrain from any act directed by
way of reprisals against cultural property. 218 Cultural property is defined in the 1954 Hague
Cultural Property Convention. 219
18.18.3.4 AP I Provisions on Reprisals. AP I prohibits attacks by way of reprisal
against:•the civilian population or civilians; 220•

civilian objects; 221•

objects indispensable to the survival of the civilian population such as foodstuffs, crops,
livestock, drinking water installations and supplies, and irrigation works; 222•

the natural environment; 223 and•works and installations containing dangerous forces, namely dams, dykes, and nuclear
electrical generating systems. 224
The United States has expressed the view that AP I’s provisions on reprisal are counter-

Government by throwing into chains 1,370 British prisoners of war for whose proper treatment they are responsible
have violated Article 2 of the aforesaid Convention. They are thus attempting to use prisoners of war as if they were
hostages upon whom reprisals can be taken for occurrences on the field of battle with which the said prisoners canhave had nothing to do. This action of the German Government affronts the sanctity of the Geneva Convention
which His Majesty’s Government have always been anxious to observe punctiliously.”). Refer to § 9.3.2 (Persons
Entitled to POW Status).
217

GC art. 33 (“Reprisals against protected persons and their property are prohibited.”). Refer to § 10.3 (Protected
Person Status).
218

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 4(4) (“They [High Contracting Parties] shall refrain fromany act directed by way of reprisals against cultural property.”).

219

Refer to § 5.18.1 (Definition of Cultural Property).

220

AP I art. 51(6) (“Attacks against the civilian population or civilians by way of reprisals are prohibited.”).

221

AP I art. 52 (“1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects
which are not military objectives as defined in paragraph 2.”).
222

AP I art. 54 (“2. …objects indispensable to the survival of the civilian population, such as foodstuffs, agriculturalareas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation
works… 4. These objects shall not be made the object of reprisals.”).
223

AP I art. 55(2) (“Attacks against the natural environment by way of reprisals are prohibited.”).

224

AP I art. 56(1) (“Works or installations containing dangerous forces, namely dams, dykes and nuclear energy
generating stations, shall not be made the object of attack, even where these objects are military objectives, if suchattack may cause the release of dangerous forces and consequent severe losses among the civilian population.”); AP
I art. 56(4) (“It is prohibited to make any of the works, installations or military objects mentioned in paragraph 1 theobject of reprisals.”).

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productive and that they remove a significant deterrent that protects civilians and war victims on
all sides of a conflict. 225 The United Kingdom has taken a reservation to AP I’s prohibition on
certain attacks by way of reprisal. 226 Egypt, Germany, and Italy also reserved the right to react
to serious violations of AP I with any means permitted by international law to prevent further
violations. 227 France has declared that it will apply the provisions of paragraph 8 of Article 51
insofar as their interpretation does not constitute an obstacle to the use, according to internationallaw, of the means which it considers indispensable for the protection of its civilian population
against grave, clear and deliberate violations of the 1949 Geneva Conventions and of AP I by theenemy. 228
225

The Position of the United States on Current Law of War Agreements: Remarks of Judge Abraham D. Sofaer,
Legal Adviser, United States Department of State, January 22, 1987, 2 AMERICAN UNIVERSITY JOURNAL OF
INTERNATIONAL LAW AND POLICY 460, 469 (1987) (“To take another example, article 51 of Protocol I prohibits any
reprisal attacks against the civilian population, that is, attacks that would otherwise be forbidden but that are in
response to the enemy's own violations of the law and are intended to deter future violations. Historically,
reciprocity has been the major sanction underlying the laws of war. If article 51 were to come into force for theUnited States, an enemy could deliberately carry out attacks against friendly civilian populations, and the UnitedStates would be legally forbidden to reply in kind. As a practical matter, the United States might, for political or
humanitarian reasons, decide in a particular case not to carry out retaliatory or reprisal attacks involving unfriendly
civilian populations. To formally renounce even the option of such attacks, however, removes a significant deterrent
that presently protects civilians and other war victims on all sides of a conflict.”).
226

United Kingdom, Statement on Ratification of AP I, Jan. 28, 1998, 2020 UNTS 75, 77-78 (“(m) Re: Articles 5155 The obligations of Article 51 and 55 are accepted on the basis that any adverse party against which the United
Kingdom might be engaged will itself scrupulously observe those obligations. If an adverse party makes serious anddeliberate attacks, in violation of Article 51 or Article 52 against the civilian population or civilians or against
civilian objects, or, in violation of Articles 53, 54 and 55, on objects or items protected by those articles, the United
Kingdom will regard itself as entitled to take measures otherwise prohibited by the Articles in question to the extent
that it considers such measures necessary for the sole purpose of compelling the adverse party to cease committing
violations under those Articles, but only after formal warning to the adverse party requiring cessation of theviolations has been disregarded and then only after a decision taken at the highest level of government. Anymeasures thus taken by the United Kingdom will not be disproportionate to the violations giving rise thereto andwill not involve any action prohibited by the Geneva Conventions of 1949, nor will such measures be continued
after the violations have ceased. The United Kingdom will notify the Protecting Powers of any such formal warning
given to an adverse party, and if that warning has been disregarded, of any measures taken as a result.”).
227

Egypt, Statement on Ratification of AP I, Oct. 9, 1992, 1712 UNTS 435, 439 (“The Arab Republic of Egypt,while declaring its commitment to respecting all the provisions of Protocols Additional I and II, wishes toemphasize, on the basis of reciprocity, that it upholds the right to react against any violation by any party of theobligations imposed by Protocols Additional I and II with all means admissible under international law in order toprevent any further violation.”); Germany, Statement on Ratification of AP I, Feb. 14, 1991, 1607 UNTS 526, 529(“The Federal Republic of Germany will react against serious and systematic violations of the obligations imposedby Additional Protocol I and in particular its Articles 51 and 52 with all means admissible under international law inorder to prevent any further violation.”); Italy, Statement on Ratification of AP I, Feb. 27, 1986, 1425 UNTS 438,
440 (“Italy will react to serious and systematic violations by an enemy of the obligations imposed by Additional
Protocol I and in particular its Articles 51 and 52 with all means admissible under international law in order toprevent any further violation.”).
228

France, Statement on Ratification of AP I, translated in SCHINDLER & TOMAN, THE LAWS OF ARMED CONFLICTS:A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 800, 801 (2004) (“The Government of
the French Republic declares that it will apply the provisions of paragraph 8 of Article 51 insofar as theirinterpretation does not constitute an obstacle to the use, according to international law, of the means which it
considers indispensable for the protection of its civilian population against grave, clear and deliberate violations of
the Geneva Conventions and of the Protocol by the enemy.”).

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18.18.4 Practical Considerations in the Use of Reprisals. Apart from the strict legal
requirements for the resort to reprisal, it will be important to consider the potential practicalconsequences of the use of reprisals that may counsel strongly against taking such measures.
Practical considerations, including longer-term military or political consequences, may include
the following factors:•

Taking reprisals may divert valuable and scarce military resources from the military
struggle and may not be as effective militarily as steady adherence to the law.

•

Reprisals will usually have an adverse impact on the attitudes of governments notparticipating in the conflict.

•

Reprisals may only strengthen enemy morale and will to resist.

•

Reprisals frequently lead only to further unwanted escalation of the conflict by anadversary or a vicious cycle of counter-reprisals.

•

Reprisals may render resources of an adversary less able to contribute to therehabilitation of an area after the cessation of hostilities. 229

18.19 DISCIPLINE IN NATIONAL JURISDICTIONS OF INDIVIDUALS FOR VIOLATIONS OF THE LAW OF
WAR
In most cases, individuals are disciplined in national jurisdictions for violations of the lawof war. Corrective action may take the form of adverse or corrective administrative actions.
Punishment may take the form of non-judicial punishment or judicial actions in military orcivilian courts, depending on the circumstances. In some cases, prosecutions in national courts
are carried out by charging violations of domestic law, but in other cases, prosecutions arecarried out by charging violations of international law.
18.19.1 Non-Judicial Punishment and Adverse or Corrective Administrative Actions. In
some cases, it may be appropriate to administer non-judicial punishment in order to punish andrepress violations of the law of war. Non-judicial punishment of members of the armed forces is229

1976 AIR FORCE PAMPHLET 110-31 ¶10-7d (“In addition to the legal requirements which regulate resort toreprisals, there are various practical factors which governments will consider before taking reprisals. The relative
importance of these factors depends upon the degree and kind of armed conflict, the character of the adversary andits resources, and the importance of states not participating in hostilities. These considerations including thefollowing: (1) Taking reprisals may divert valuable and scarce military resources from the military struggle andmay not be as effective militarily as steady adherence to the law. (2) Reprisals will usually have an adverse impact
on the attitudes of governments not participating in the conflict. (3) Reprisals may only strengthen enemy morale
and will to resist. (4) Reprisals frequently lead only to further unwanted escalation of the conflict by an adversary.
Accordingly, an adversary’s ability to retaliate is an important factor. (5) Reprisals may render resources of an
adversary less able to contribute to the rehabilitation of an area after the cessation of hostilities. (6) The threat ofreprisals is usually more effective than their actual use. (7) Reprisals, to be effective, should be carried out speedily
and must be kept under control. They will be ineffective if random, excessive or prolonged. (8) In any event, thedecision to employ reprisals would be reached only as a matter of specific national policy. The immediateadvantage sought, which is to stop current and deter future violations of the law by an adversary, must be weighedagainst the long range military and political consequences.”).

1117

authorized under the Uniform Code of Military Justice. 230
In some cases, it may be appropriate to take adverse or corrective administrative action torepress violations of the law of war. Adverse and corrective administrative action for membersof the armed forces is authorized by military regulations. 231
18.19.2 Charging of Domestic Prosecutions as Violations of International Law orDomestic Law. In some cases, prosecutions in national courts for conduct constituting violationsof the law of war are carried out by charging violations of ordinary domestic law or military law,and in other cases, such prosecutions are carried out by charging violations of international law.
For example, the murder of a POW may be prosecuted under the ordinary criminal statutes
prohibiting murder. On the other hand, the same conduct may be prosecuted under special
criminal statutes that are framed in terms of “war crimes.” 232
The United States has no international law obligation to prosecute an offense as a “warcrime” as opposed to an ordinary criminal offense.
Prosecutions in national courts remain domestic prosecutions for violations of domestic
statutes, even when those domestic statutes were enacted pursuant to treaty obligations or are
framed in terms of violations of international law (e.g., war crimes).
In general, prosecutions of war crimes as such (i.e., characterized as international law
violations as opposed to violations of domestic law) have only been undertaken when a State
seeks to punish enemy nationals or persons serving the interests of the enemy State. When
members of a State’s armed forces or other personnel violate the law of war, that State generallyprosecutes those persons for offenses under ordinary domestic law or military law. 233

230

10 U.S.C. § 815.

231

See, e.g., MARINE CORPS ORDER P1900.16F, Change 2, Marine Corps Separation and Retirement Manual (Jun.
6, 2007) (providing general and specific bases, and procedures for involuntary administrative separations);
DEPARTMENT OF THE NAVY JUDGE ADVOCATE GENERAL INSTRUCTION 5800.7F, Manual of the Judge Advocate
General, §§ 0102-0105 (Jun. 26, 2012) (providing regulations for non-punitive administrative measures).
232

Refer to § 18.19.3.8 (War Crimes Act).

233
For example, GARY SOLIS, MARINES AND MILITARY LAW IN VIETNAM: TRIAL BY FIRE 32-33 (1989) (“NoMarine was charged with the commission of a war crime, as such, in Vietnam. Rather, any ‘violation of the law ofwar’ committed by a Marine against a Vietnamese was charged as a violation of the UCMJ. For example, themurder of a civilian noncombatant was charged as a violation of Article 118, murder, rather than as a war crime inviolation of the Geneva or Hague conventions.”); 1956 FM 27-10 (Change No. 1 1976) ¶507b (“The United Statesnormally punishes war crimes as such only if they are committed by enemy nationals or by persons serving theinterests of the enemy State. Violations of the law of war committed by persons subject to the military law of theUnited States will usually constitute violations of the Uniform Code of Military Justice and, if so, will be prosecuted
under that Code. Violations of the law of war committed within the United States by other persons will usuallyconstitute violations of federal or state criminal law and preferably will be prosecuted under such law (see pars. 505
and 506).”); The Public Commission to Examine the Maritime Incident of 31 May 2010, et. al (The Turkel
Commission), Second Report, Israel’s Mechanisms for Examining and Investigating Complaints and Claims of
Violations of the Laws of Armed Conflict According to International Law, 171 (Feb. 2013) (“As in the US, thecharging practice in Canada appears to be to prosecute violations of the law of armed conflict by members of thearmed forces as general criminal law offenses or military offenses under the Code of Service Discipline, rather than1118

18.19.3 U.S. Law That Can Be Used to Punish Violations of the Law of War. A numberof U.S. statutes may be used to punish acts that constitute violations of the law of war. Whenviolations of the law of war are committed within the United States, such acts usually constituteviolations of Federal and State law and generally may be prosecuted under ordinary criminal
statutes. However, a number of other Federal statutes may be used to prosecute conduct that
violates the law of war, even though that conduct does not occur within the United States. The
application of any particular statute depends on the terms of that statute and the facts of aparticular case.
18.19.3.1 Uniform Code of Military Justice Offenses. The principal way for theUnited States to punish members of the U.S. armed forces for violations of the law of war isthrough the Uniform Code of Military Justice.
Certain persons may be tried for violations of the Uniform Code of Military Justice,including, among others:•

members of a regular component of the U.S. armed forces;•

POWs in the custody of the U.S. armed forces;•in time of declared war or contingency operations, persons serving with or accompanying
an armed force in the field; and•individuals belonging to one of the eight categories enumerated in Article 4 of the GPW
who violate the law of war. 234

Offenses under the Uniform Code of Military Justice that may be used to punish conductthat constitutes a violation of the law of war include, among others:•

cruelty and maltreatment; 235•

murder; 236

as specific offenses relating to the law of armed conflict.”). Compare § 18.7.3 (Enforcement of Law of War
Obligations Through Military Instructions, Regulations, and Procedures).
234

10 U.S.C. § 802 (“(a) The following persons are subject to this chapter: (1) Members of a regular component of
the armed forces, including those awaiting discharge after expiration of their terms of enlistment; volunteers fromthe time of their muster or acceptance into the armed forces; inductees from the time of their actual induction into
the armed forces; and other persons lawfully called or ordered into, or to duty in or for training in, the armed forces,from the dates when they are required by the terms of the call or order to obey it. … (9) Prisoners of war in custodyof the armed forces. (10) In time of declared war or a contingency operation, persons serving with or accompanying
an armed force in the field. … (13) Individuals belonging to one of the eight categories enumerated in Article 4 of
the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316), whoviolate the law of war.”).
235

10 U.S.C. § 893 (“Any person subject to this chapter who is guilty of cruelty toward, or oppression or
maltreatment of, any person subject to his orders shall be punished as a court-martial may direct.”).
236

10 U.S.C. § 918.

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•

rape and sexual assault; 237•

failure to obey order or regulation; 238 and•conduct prejudicial to good order and discipline. 239

18.19.3.2 Incorporation of Other Non-Capital Crimes and Offenses in the
Uniform Code of Military Justice. Under the Uniform Code of Military Justice, “all disorders
and neglects to the prejudice of good order and discipline in the armed forces, all conduct of anature to bring discredit upon the armed forces, and crimes and offenses not capital,” of which
persons subject to the Uniform Code of Military Justice may be guilty, shall be taken cognizanceof by a general, special, or summary court-martial, according to the nature and degree of theoffense, and shall be punished at the discretion of that court. 240
This provision may also be used to prosecute conduct that violates the law of war.
However, the preemption doctrine prohibits application of this provision to conduct alreadycovered by specific offenses in the Uniform Code of Military Justice. 241
18.19.3.3 U.S. General Court-Martial Jurisdiction to Try and Punish Persons
Under the Law of War. Under the Uniform Code of Military Justice, general courts-martial also
have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal
and may adjudge any punishment permitted by the law of war. 242 For example, this authority
237

10 U.S.C. § 920.

238

See 10 U.S.C. § 892 (“Any person subject to this chapter who—(1) violates or fails to obey any lawful generalorder or regulation; (2) having knowledge of any other lawful order issued by a member of the armed forces, which
it is his duty to obey, fails to obey the order; or (3) is derelict in the performance of his duties; shall be punished as acourt-martial may direct.”); 10 U.S.C. § 890 (“Any person subject to this chapter who— … (2) willfully disobeys alawful command of his superior commissioned officer; shall be punished, if the offense is committed in time of war,by death or such other punishment as a court-martial may direct, and if the offense is committed at any other time,by such punishment, other than death, as a court-martial may direct.”).

239

10 U.S.C. § 934 (“Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice ofgood order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, andcrimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance ofby a general, special, or summary court-martial, according to the nature and degree of the offense, and shall bepunished at the discretion of that court.”).
240

10 U.S.C. § 934 (“Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice ofgood order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, andcrimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance ofby a general, special, or summary court-martial, according to the nature and degree of the offense, and shall bepunished at the discretion of that court.”).
241

MANUAL FOR COURTS-MARTIAL IV-102 (¶60.c.(5)(a)) (2012) (“The preemption doctrine prohibits application of
Article 134 to conduct covered by Articles 80 through 132. For example, larceny is covered in Article 121, and if anelement of that offense is lacking—for example, intent— there can be no larceny or larceny-type offense, either
under Article 121 or, because of preemption, under Article 134. Article 134 cannot be used to create a new kind oflarceny offense, one without the required intent, where Congress has already set the minimum requirements for suchan offense in Article 121.”).
242

10 U.S.C. § 818 (“General courts-martial also have jurisdiction to try any person who by the law of war is subject
to trial by a military tribunal and may adjudge any punishment permitted by the law of war.”).

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could be used to try enemy combatants for violations of the law of war, because such trials are
permitted by the law of war.
18.19.3.4 Title 18 Federal Crimes Punishing Conduct Outside the United States.
Certain Federal statutes specify that they apply to conduct outside the United States and could be
used to prosecute conduct that, in some circumstances, would constitute a violation of the law ofwar. These statutes may specify in detail the circumstances in which they authorize prosecution,
which may vary from statute to statute.
These statutes include provisions prohibiting:•torture; 243•

genocide; 244•

murder or manslaughter of foreign officials, official guests, or internationally protected
persons; 245•

piracy; 246•

acts of terrorism and material support to terrorists; 247•

certain acts involving biological weapons; 248•

certain acts involving chemical weapons; 249 and•certain acts involving nuclear weapons. 250

18.19.3.5 Extraterritorial Application of Certain Federal Offenses Through
MEJA. U.S. law makes special provision for certain conduct that is committed outside theUnited States to be prosecuted as though it were committed inside the United States.
U.S. law, under the Military Extraterritorial Jurisdiction Act (MEJA), permits the UnitedStates to prosecute individuals who committed certain offenses outside the United States (i)243

See 18 U.S.C. § 2340A(a) (“Whoever outside the United States commits or attempts to commit torture shall be
fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conductprohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.”).
244

18 U.S.C. § 1091.

245

18 U.S.C. § 1116.

246

18 U.S.C. § 1651 (“Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, andis afterwards brought into or found in the United States, shall be imprisoned for life.”).
247

18 U.S.C. §§ 2332b, 2339A, 2339B.

248

18 U.S.C. § 175.

249

18 U.S.C. § 229.

250

18 U.S.C. § 831.

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while employed by or accompanying the U.S. armed forces overseas; or (ii) while a member of
the U.S. armed forces subject to the Uniform Code of Military Justice. 251 MEJA cannot be usedagainst a member of the Armed Forces who is subject to the Uniform Code of Military Justiceunless (i) such member ceases to be subject to the Uniform Code of Military Justice; or (ii) an
indictment or information charges that the member committed the offense with one or more otherdefendants, at least one of whom is not subject to the Uniform Code of Military Justice. 252
Provisions of MEJA have been implemented through DoD regulations. 253
Among other things, MEJA provides a way for U.S. domestic law to be used to punish
conduct that violates the law of war. For example, under MEJA, a former service member could
be prosecuted for a murder committed while a member of the armed forces during armed conflictabroad, even though Uniform Code of Military Justice jurisdiction over that person has
ceased. 254
18.19.3.6 Special Maritime and Territorial Jurisdiction of the United States
Under Title 18. U.S. law provides for certain offenses to be prosecuted if they are committed in
the special maritime and territorial jurisdiction of the United States. 255 Such jurisdiction may
251

18 U.S.C. § 3261(a) (“Whoever engages in conduct outside the United States that would constitute an offense
punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime
and territorial jurisdiction of the United States—(1) while employed by or accompanying the Armed Forces outside
the United States; or (2) while a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of
Military Justice), shall be punished as provided for that offense.”).
252

18 U.S.C. § 3261(d) (“No prosecution may be commenced against a member of the Armed Forces subject tochapter 47 of title 10 (the Uniform Code of Military Justice) under this section unless—(1) such member ceases tobe subject to such chapter; or (2) an indictment or information charges that the member committed the offense with
one or more other defendants, at least one of whom is not subject to such chapter.”).
253

DOD INSTRUCTION 5525.11, Criminal Jurisdiction Over Civilians Employed By or Accompanying the Armed
Forces Outside the United States, Certain Service Members, and Former Service Members, ¶2.5 (Mar. 3, 2005)(“This Instruction: 1.1. Implements policies and procedures, and assigns responsibilities, under the “Military
Extraterritorial Jurisdiction Act of 2000,” as amended by Section 1088 of the “Ronald W. Reagan National Defense
Authorization Act for Fiscal Year 2005” (reference (a)) (hereinafter the “Act”) for exercising extraterritorial
criminal jurisdiction over certain current and former members of the U.S. Armed Forces, and over civilians
employed by or accompanying the U.S. Armed Forces outside the United States. 1.2. Implements Section 3266 of
the Act.”).
254
See, e.g., United States v. Green, 654 F.3d 637, 640-41 (6th Cir. 2011) (“Steven D. Green was convicted andsentenced to life in prison for participating in a sexual assault and multiple murders while stationed in Iraq as an
infantryman in the United States Army. Before senior Army officials became aware that Green and three fellow
servicemembers were involved in these crimes, Green was discharged due to a personality disorder. When officials
discovered Green’s involvement in the crimes, his three coconspirators were still on active duty in the Army andthus subject to the Uniform Code of Military Justice. They were tried by courts-martial and each sentenced to
between 90 and 110 years imprisonment, which rendered them eligible for parole in ten years. However, the Army
had no authority to court-martial Green because he had already been discharged. Thus, civilian prosecutors charged
Green under the Military Extraterritorial Jurisdiction Act, which extends federal criminal jurisdiction to persons who
commit criminal acts while a member of the Armed Forces but later cease to be subject to military jurisdiction. A
federal court jury convicted Green of a number of crimes, including murder and sexual assault, and the district court
sentenced him to five consecutive life sentences.”).
255
See, e.g., 18 U.S.C. § 1111 (“(b) Within the special maritime and territorial jurisdiction of the United States,
Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life; Whoever isguilty of murder in the second degree, shall be imprisoned for any term of years or for life.”).

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include, for example, offenses committed by U.S. nationals on the premises of U.S. diplomatic,
consular, military, or other U.S. Government missions or entities in foreign States. 256 Thisjurisdiction provides another method by which U.S. law may be used to punish conduct that
violates the law of war. 257
18.19.3.7 U.S. Military Commissions. U.S. statutes authorize the prosecution ofalien unprivileged enemy belligerents for certain offenses. 258 The Secretary of Defense has
promulgated additional rules of procedure and rules of evidence applicable to suchproceedings. 259
In the past, military commissions have been used by the United States and other States toprosecute enemy belligerents for violations of the law of war and for acts of unprivileged
belligerency. Military commissions have also been used for the trial of offenses under U.S. law
where local courts were not open and acting (i.e., where martial law applies), and for the trial ofviolations of occupation ordinances. These military commissions have been regarded as
instrumentalities for the more efficient execution of the war powers vested in Congress and thepower vested in the President as Commander-in-chief in war. 260 Military commissions havebeen used instead of courts-martial because U.S. courts-martial have been adapted to thecircumstances of disciplining members of the armed forces and have not been crafted with aview towards certain other offenses that are also committed during armed conflict. 261

256

18 U.S.C. § 7 (“The term ‘special maritime and territorial jurisdiction of the United States’, as used in this title,
includes: … (9) With respect to offenses committed by or against a national of the United States as that term is usedin section 101 of the Immigration and Nationality Act—(A) the premises of United States diplomatic, consular,
military or other United States Government missions or entities in foreign States, including the buildings, parts ofbuildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective ofownership;”).
257

See, e.g., United States v. Passaro, 577 F.3d 207, 210-12 (4th Cir. 2009) (“This case arises from the conviction ina United States federal court of an American citizen for the brutal assault on an Afghan national in Afghanistan. Ajury in the Eastern District of North Carolina found David A. Passaro, a Central Intelligence Agency civilian
contractor, guilty of assault on Abdul Wali. The assault occurred in 2003 at Asadabad Firebase, a United States
Army outpost in Afghanistan. … The Government predicated federal criminal jurisdiction in this case on the special
maritime and territorial jurisdiction statute.”).
258

10 U.S.C. § 948c (“Any alien unprivileged enemy belligerent is subject to trial by military commission as set
forth in this chapter.”).
259

DEPARTMENT OF DEFENSE, Manual for Military Commissions (Aug. 14, 2012); DEPARTMENT OF DEFENSE,
Manual for Military Commissions (Apr. 27, 2010).
260

WINTHROP, MILITARY LAW & PRECEDENTS 839 (“But, in general, it is those provisions of the Constitution whichempower Congress to ‘declare war’ and ‘raise armies,’ and which, in authorizing the initiation of war, authorize theemployment of all necessary and proper agencies for its due prosecution, from which this tribunal derives its
original sanction. Its authority is thus the same as the authority for the making and waging of war and for the
exercise of military government and martial law. The commission is simply an instrumentality for the more
efficient execution of the war powers vested in Congress and the power vested in the President as Commander-inchief in war.”).
261

WINTHROP, MILITARY LAW & PRECEDENTS 839 (“The occasion for the military commission arises principallyfrom the fact that the jurisdiction of the court-martial proper, in our law, is restricted by statute almost exclusively tomembers of the military force and to certain specific offences defined in a written code. It does not extend to many
criminal acts, especially of civilians, peculiar to time of war; and for the trial of these a different tribunal is required.

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Similarly, the use of military commission proceedings continues to be appropriate incertain circumstances because the rules for such proceedings are specially adapted to reflect therealities of the battlefield and conducting investigations in a war zone. 262
18.19.3.8 War Crimes Act. The War Crimes Act authorizes the prosecution ofindividuals for certain war crimes if the victim or the perpetrator is either a U.S. national or amember of the U.S. Armed Forces, whether inside or outside the United States. 263 Under thisstatute, an individual may be prosecuted for conduct:•defined as a grave breach in any of the 1949 Geneva Conventions, or any protocol tosuch convention to which the United States is a Party;•

prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV,
Respecting the Laws and Customs of War on Land, signed 18 October 1907;•

that constitutes a grave breach of common Article 3 (as defined in the statute) whencommitted in the context of and in association with an armed conflict not of aninternational character; or•of a person who, in relation to an armed conflict and contrary to the provisions of the
CCW Amended Mines Protocol, when the United States is a Party to such Protocol,
willfully kills or causes serious injury to civilians. 264

A commander indeed, where authorized to constitute a purely war-court, may designate it by any convenient name;he may style it a ‘court-martial,’ and, though not a court-martial proper, it will still be a legal body under the laws of
war. But to employ the same name for the two kinds of court could scarcely but result in confusion and in questions
as to jurisdiction and power of punishment.”).
262

Eric Holder, Attorney General, Remarks at Northwestern University School of Law, Mar. 5, 2012, 2012 DIGEST
OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 577, 579-80 (“Military commissions are also appropriate inproper circumstances, and we can use them as well to convict terrorists and disrupt their plots. … It’s important tonote that the reformed commissions draw from the same fundamental protections of a fair trial that underlie ourcivilian courts. They provide a presumption of innocence and require proof of guilt beyond a reasonable doubt.
They afford the accused the right to counsel – as well as the right to present evidence and cross-examine witnesses.
They prohibit the use of statements obtained through torture or cruel, inhuman, or degrading treatment. And they
secure the right to appeal to Article III judges – all the way to the United States Supreme Court. In addition, like ourfederal civilian courts, reformed commissions allow for the protection of sensitive sources and methods ofintelligence gathering, and for the safety and security of participants. A key difference is that, in militarycommissions, evidentiary rules reflect the realities of the battlefield and of conducting investigations in a war zone.
For example, statements may be admissible even in the absence of Miranda warnings, because we cannot expect
military personnel to administer warnings to an enemy captured in battle. But instead, a military judge must makeother findings – for instance, that the statement is reliable and that it was made voluntarily.”).
263

18 U.S.C. § 2441 (“(a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in
any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any termof years, or both, and if death results to the victim, shall also be subject to the penalty of death. (b)Circumstances.— The circumstances referred to in subsection (a) are that the person committing such war crime or
the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States(as defined in section 101 of the Immigration and Nationality Act).”).
264

18 U.S.C. § 2441(c) (“c) Definition.— As used in this section the term “war crime” means any conduct— (1)defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol1124

18.19.4 U.S. Domestic Law and Policy on Military Jurisdiction.
18.19.4.1 Limits on Military Jurisdiction Over U.S. Citizens Who Are Not
Members of the Armed Forces. As a matter of U.S. domestic law, the U.S. Constitution places
certain limits on the use of military tribunals to punish U.S. citizens who are not members of thearmed forces. 265 DoD policy addresses the use of the Uniform Code of Military Justice to try
civilians serving with or accompanying the U.S. armed forces. 266 Such law and policy may
dictate the forum for prosecution. For example, a person who has been discharged from the U.S.
armed forces and is no longer subject to the Uniform Code of Military Justice would beprosecuted under the MEJA or the War Crimes Act rather than the Uniform Code of Military
Justice.
18.19.4.2 Efforts to Maximize Court-Martial Jurisdiction Over Persons Who Are
Members of the Armed Forces. Where the United States and a foreign State both claim
jurisdiction over a service member’s conduct, DoD policy has been to make efforts to maximize
the exercise of court-martial jurisdiction over persons subject to the Uniform Code of Military
Justice to the extent possible under applicable agreements. 267
18.20 PROSECUTION IN INTERNATIONAL AND HYBRID COURTS
In some cases, the prosecution of individuals for violations of the law of war has been
undertaken in international tribunals or hybrid tribunals that mix elements of national andinternational law.
The jurisdiction and procedures of these tribunals vary from tribunal to tribunal, and may
depend on applicable treaties and customary international law. In general, the decisions of theseto such convention to which the United States is a party; (2) prohibited by Article 23, 25, 27, or 28 of the Annex to
the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907; (3) whichconstitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of andin association with an armed conflict not of an international character; or (4) of a person who, in relation to an armed
conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, BoobyTraps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the
United States is a party to such Protocol, willfully kills or causes serious injury to civilians.”).
265

See, e.g., Reid v. Covert, 354 U.S. 1 (1956); Toth v. Quarles. 350 U.S. 11 (1955); Duncan v. Kahanamoku, 327
U.S. 304 (1946); Ex parte Milligan, 71 U.S. 2 (1866).
266

See, e.g., Robert Gates, Secretary of Defense, Memorandum re: UCMJ Jurisdiction Over DoD Civilian
Employees, DoD Contractor Personnel, and Other Persons Serving With or Accompanying the Armed Forces
Overseas During Declared War and in Contingency Operations (Mar. 10, 2008 incorporating Change 1 Sept. 23,
2010).
267

For example, MANUAL FOR COURTS-MARTIAL II-10 (Discussion of R.C.M. 201(d)) (2012) (“As a matter ofpolicy, efforts should be made to maximize the exercise of court-martial jurisdiction over persons subject to the code
to the extent possible under applicable agreements.”). See also DOD DIRECTIVE 5525.1, DoD Status of Forces
Policy and Information, ¶3 (Aug. 7, 1979, Certified Current as of Nov. 21, 2003) (“It is the policy of the Departmentof Defense to protect, to the maximum extent possible, the rights of United States personnel who may be subject tocriminal trial by foreign courts and imprisonment in foreign prisons.”).

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tribunals are not binding as precedent on the United States, including U.S. courts. 268 However,in some cases, it may be appropriate to consider their decisions as persuasive authority.
18.20.1 Post-World War II International Military Tribunals. After World War II, theUnited Kingdom, France, the United States, and the Union of Soviet Socialist Republics sought
to try the major European Axis war criminals. Established by the London Agreement of August
8, 1945, the International Military Tribunal at Nuremberg conducted the landmark Trial of Major
War Criminals, with 21 defendants, in Nuremberg, Germany from November 1945 - October
1946. 269 A similar tribunal was established in Tokyo by U.S. General MacArthur in his role as
Supreme Allied Commander to try major Japanese war criminals in the Far East. 270
18.20.2 International Criminal Tribunal for the Former Yugoslavia (ICTY) andInternational Criminal Tribunal for Rwanda (ICTR). The U.N. Security Council has used its
authority under Chapter VII of the Charter of the United Nations to establish international
criminal tribunals to prosecute persons responsible for serious violations of international
humanitarian law committed in the territory of the former Yugoslavia since 1991, and in the
territory of Rwanda, as well as Rwandan citizens responsible for genocide and other such
violations committed in the territory of neighboring States, between January 1, 1994, andDecember 31, 1994. 271
The United States has, through its membership in the U.N. Security Council, supported
both the efforts of the ICTR and (also acting through NATO) the efforts of the ICTY. 272
18.20.3 The International Criminal Court (ICC) Created by the Rome Statute. The Rome
Statute of the ICC established the ICC, which sits in The Hague in the Netherlands. 273 The
268

See, e.g., 18 U.S.C. 2441 note (“No foreign or international source of law shall supply a basis for a rule ofdecision in the courts of the United States in interpreting the prohibitions enumerated in subsection (d) of suchsection 2441.”).
269

Agreement by the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of
the United States of America, the Provisional Government of the French Republic and the Government of the Unionof Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis,
art. 2, Aug. 8, 1945, 82 UNTS 280, 282 (“The constitution, jurisdiction and functions of the International Military
Tribunal shall be those set out in the Charter annexed to this agreement, which Charter shall form an integral part ofthis Agreement.”).
270

See Douglas MacArthur, Supreme Commander for the Allied Powers, Special Proclamation: Establishment ofan International Military Tribunal for the Far East, Jan. 19, 1946, 4 BEVANS 20, 21 (“Now, therefore, I, Douglas
MacArthur, as Supreme Commander for the Allied Powers, by virtue of the authority so conferred upon me, in orderto implement the Term of Surrender which requires the meting out of stern justice to war criminals, do order andprovide as follows: ARTICLE 1. There shall be established an International Military Tribunal for the Far East for thetrial of those persons charged individually, or as members of organizations, or in both capacities, with offenses
which include crimes against peace.”).
271

Refer to § 18.12.4 (Authorizing International Criminal Tribunals).

272

For example, since the mid-1990s, as part of NATO’s Operation JOINT ENDEAVOR, Operation JOINTGUARD and Operation JOINT FORGE, and as part of NATO’s support to the European Union’s Operation
ALTHEA, the United States has conducted operations to apprehend, transfer, and support the prosecution of Persons
Indicted for War Crimes (PIFWC) in the ICTY.
273

Refer to § 19.23 (Rome Statute of the International Criminal Court).

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United States is not a Party to the Rome Statute.
The Rome Statute provides that the ICC “shall have the power to exercise its jurisdiction
over persons for the most serious crimes of international concern” and “shall be complementary
to national criminal jurisdictions.” 274 The Rome Statute provides that the ICC has jurisdiction inaccordance with the Statute with respect to: 275•

the crime of genocide;•crimes against humanity;•

war crimes; and•the crime of aggression.

18.20.3.1 Attempt to Assert Jurisdiction With Respect to Nationals of Non-Party
States. The ICC may exercise jurisdiction if a situation has been referred to it by the U.N.
Security Council acting under Chapter VII of the Charter of the United Nations. 276 The Rome
Statute also provides that the ICC may exercise its jurisdiction if one or more of the following
States are Parties to the Rome Statute or have accepted the jurisdiction of the ICC on an ad hoc
basis:•

the State on the territory of which the conduct in question occurred or, if the crime wascommitted on board a vessel or aircraft, the State of registration of that vessel or aircraft;or•

the State of which the person accused of the crime is a national. 277

The first of these provisions creates the possibility that the ICC would seek to exercise
jurisdiction with respect to the actions of nationals of States that have not ratified the Rome
Statute, even if the U.N. Security Council has not referred the situation. The United States has alongstanding and continuing objection to any assertion of jurisdiction by the ICC with respect tonationals of States not Party to the Rome Statute in the absence of consent from such States or a
274

ROME STATUTE art. 1 (“An International Criminal Court (‘the Court’) is hereby established. It shall be apermanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes ofinternational concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions.
The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.”).

275

ROME STATUTE art. 5 (“The jurisdiction of the Court shall be limited to the most serious crimes of concern to theinternational community as a whole. The Court has jurisdiction in accordance with this Statute with respect to thefollowing crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime ofaggression.”).

276

Refer to § 18.12.4 (Authorizing International Criminal Tribunals).

277

ROME STATUTE art. 12 (“In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if
one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court inaccordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if thecrime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State ofwhich the person accused of the crime is a national.”).

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referral by the Security Council. 278
18.20.3.2 Article 98 Agreements. The Rome Statute provides that the ICC may
not proceed with a request for surrender or assistance that would require the requested State toact inconsistently with its obligations under international law with respect to the State or
diplomatic immunity of a person or property of a third State, unless the Court can first obtain thecooperation of that third State for the waiver of the immunity. 279 The Rome Statute also
provides that the ICC may not proceed with a request for surrender that would require therequested State to act inconsistently with its obligations under international agreements pursuant
to which the consent of a sending State is required to surrender a person of that State to the ICC,
unless the ICC can first obtain the cooperation of the sending State for the giving of consent forthe surrender. 280
The United States has entered into agreements with numerous States, including Parties to
the Rome Statute, that require U.S. consent before U.S. personnel may be surrendered by that
State to the ICC. 281

278

See, e.g., 22 U.S.C. § 7421(11) (“It is a fundamental principle of international law that a treaty is binding upon its
parties only and that it does not create obligations for nonparties without their consent to be bound. The UnitedStates is not a party to the Rome Statute and will not be bound by any of its terms. The United States will notrecognize the jurisdiction of the International Criminal Court over United States nationals.”); William J. Clinton,
Statement on the Rome Treaty on the International Criminal Court, Dec. 31, 2000, 2000-III PUBLIC PAPERS OF THE
PRESIDENTS 2816 (“In particular, we are concerned that when the court comes into existence, it will not only
exercise authority over personnel of states that have ratified the treaty, but also claim jurisdiction over personnel ofstates that have not.”). Cf. Extracts from Comments by Governments on the Draft Convention on Genocide
Prepared by the Secretary-General, reprinted in U.N. SECRETARY-GENERAL, Historical Survey of the Question ofInternational Criminal Jurisdiction, U.N. Doc. A/CN.4/7/Rev.1, 137 (1949) (1. United States of America This
article contains a broad jurisdictional provision. … A third reason for opposing the provision is that it would
apparently seek to establish a rule of law applicable to nationals of States which have not consented to it, namely,such States as may not ratify the Convention.”).
279

ROME STATUTE art. 98(1) (“The Court may not proceed with a request for surrender or assistance which would
require the requested State to act inconsistently with its obligations under international law with respect to the Stateor diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation ofthat third State for the waiver of the immunity.”).

280

ROME STATUTE art. 98(2) (“The Court may not proceed with a request for surrender which would require therequested State to act inconsistently with its obligations under international agreements pursuant to which theconsent of a sending State is required to surrender a person of that State to the Court, unless the Court can firstobtain the cooperation of the sending State for the giving of consent for the surrender.”).

281

Such agreements have been cited in certifications required under U.S. law before U.S. personnel are authorized toparticipate in certain U.N. peacekeeping and peace enforcement operations. For example, Barack Obama,
Certification Concerning U.S. Participation in the United Nations Multidimensional Integrated Stabilization
Mission in Mali Consistent with Section 2005 of the American Servicemembers’ Protection Act, Jan. 31, 2014, 79
FEDERAL REGISTER 8079 (Feb. 10, 2014) (“By the authority vested in me as President by the Constitution and thelaws of the United States of America, and consistent with section 2005 of the American Servicemembers’ Protection
Act of 2002 (22 U.S.C. 7424), concerning the participation of members of the Armed Forces of the United States incertain United Nations peacekeeping and peace enforcement operations, I hereby certify that members of the U.S.
Armed Forces participating in the United Nations Multidimensional Integrated Stabilization Mission in Mali arewithout risk of criminal prosecution or other assertion of jurisdiction by the International Criminal Court (ICC)
because the Republic of Mali has entered into an agreement in accordance with Article 98 of the Rome Statute1128

18.20.3.3 U.S. Law and Policy on Support to the ICC. U.S. law contains certain
restrictions on support to the ICC or ICC activities within the United States. 282 U.S. policy is towork with the international community to prevent and call to account those responsible for the
worst human rights abuses, including through support to the International Criminal Court,
consistent with U.S. law and our commitment to protecting our personnel. 283
18.20.3.4 ICC and the Crime of Aggression. As adopted in 1998, the Rome
Statute does not define the crime of aggression, but provides that the ICC shall exercise
jurisdiction over the crime of aggression once a provision is adopted in accordance with articles
121 and 123 of the Rome Statute defining the crime and setting out the conditions under which
the ICC shall exercise jurisdiction with respect to this crime. 284 A 2010 Review Conference in
Kampala, Uganda adopted amendments concerning the crime of aggression, but the amendments
are subject to ratification or acceptance, 285 and certain conditions must be fulfilled before the
ICC will be able to exercise jurisdiction with respect to the crime of aggression. 286 The UnitedStates has expressed the view that the definitions of “act of aggression” and “crime of

preventing the ICC from proceeding against members of the Armed Forces of the United States present in thatcountry.”).
282

See, e.g., 22 U.S.C. §§ 7421-7433; 22 U.S.C. § 7401(b).

283

Barak Obama, National Security Strategy of the United States, 22 (Feb. 2015) (“We will work with theinternational community to prevent and call to account those responsible for the worst human rights abuses,
including through support to the International Criminal Court, consistent with U.S. law and our commitment toprotecting our personnel.”); Barak Obama, National Security Strategy of the United States, 48 (May 2010)(“Although the United States is not at present a party to the Rome Statute of the International Criminal Court (ICC),
and will always protect U.S. personnel, we are engaging with State Parties to the Rome Statute on issues of concern
and are supporting the ICC’s prosecution of those cases that advance U.S. interests and values, consistent with therequirements of U.S. law.”); Harold Hongju Koh, Legal Adviser, Department of State, Remarks on international
criminal justice at the Vera Institute of Justice in New York and at Leiden University, Campus The Hague, 2012
DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 61, 67 (“So, while the United States will always
protect U.S. personnel, we are engaging with States parties to the Rome Statute on issues of concern, and we haveapplied a pragmatic, case-by-case approach towards ICC issues.”).
284

ROME STATUTE art. 5(2) (“The Court shall exercise jurisdiction over the crime of aggression once a provision isadopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the
Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant
provisions of the Charter of the United Nations.”).

285

See Resolution RC/Res.6, Review Conference of the Rome Statute of the International Criminal Court, Kampala,
Uganda, Jun. 11, 2010 (“1. Decides to adopt, in accordance with article 5, paragraph 2, of the Rome Statute of theInternational Criminal Court (hereinafter: ‘the Statute’) the amendments to the Statute contained in annex I of thepresent resolution, which are subject to ratification or acceptance and shall enter into force in accordance with article
121, paragraph 5; and notes that any State Party may lodge a declaration referred to in article 15 bis prior to
ratification or acceptance;”).
286

See, e.g., Article 15 bis, Amendments to the Rome Statute of the International Criminal Court on the Crime of
Aggression, Annex I to Resolution RC/Res.6, Review Conference of the Rome Statute of the International Criminal
Court, Kampala, Uganda, Jun. 11, 2010 (“2. The Court may exercise jurisdiction only with respect to crimes ofaggression committed one year after the ratification or acceptance of the amendments by thirty States Parties. 3.
The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to adecision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of anamendment to the Statute.”).

1129

aggression” in the Kampala amendments do not reflect customary international law. 287 The
United States has expressed a broad range of other concerns about the Kampala amendments,
including concerns regarding the possibility of the ICC exercising jurisdiction over the crime ofaggression without a prior determination by the Security Council that a State has committed an
act of aggression. 288
18.20.4 Hybrid or Mixed Tribunals. In some cases, an international tribunal may mix
elements of domestic and international law. For example, war crimes trials by national tribunals
were conducted after World War II under the military government formed by the Allies togovern occupied Germany. 289
More recently, hybrid tribunals have been established in Sierra Leone, Cambodia, andLebanon. The Special Court for Sierra Leone was established by a treaty between Sierra Leone
and the United Nations. 290 The Special Court applies both international and Sierra Leonean
law. 291 Similarly, in Cambodia, the Extraordinary Chambers in the Courts of Cambodia (ECCC)
was established under Cambodian domestic law, but regulated by an agreement between
Cambodia and the United Nations. 292 The Special Tribunal for Lebanon was established
287

Harold Hongju Koh, Legal Adviser, Department of State, Statement at the Review Conference of theInternational Criminal Court, Jun. 4, 2010 (“[T]he definition of aggression does not truly reflect customaryinternational law, i.e., widespread and consistent state practice followed out of a sense of legal obligation.”).
288

Sarah Sewall, Under Secretary for Civilian Security, Democracy, and Human Rights, Remarks at the Annual
Meeting of the American Society of International Law: The ICC Crime of Aggression and the Changing
International Security Landscape, Apr. 9, 2015 (“Many of our concerns – and many of the means of mitigating them
– are linked to the uncertainty that still surrounds crucial aspects of the amendments and how they may beinterpreted and applied. The definition of the crime itself, as adopted in Kampala, was ostensibly based on an earlier
UN resolution that gave guidance to the Security Council on identifying acts of aggression. But the definition thatthe parties adopted stripped away the critical requirement that the assessment of a use of force ‘must be consideredin light of all the circumstances of each particular case,’ and it shifted the role of applying this guidance and making
these judgments – which inevitably involve political judgments – from the Security Council to a judicial body meant
to remain above politics.”).
289

See generally DEPARTMENT OF THE ARMY PAMPHLET 27-161-2, II International Law, 224-33 (Oct. 23, 1962).

290

See Agreement between the United Nations and the Government of Sierra Leone on the Establishment of aSpecial Court for Sierra Leone, in Appendix II to Letter dated 6 March 2002 from the Secretary-General addressedto the President of the Security Council, U.N. Doc S/2002/246, 17 (Mar. 8, 2002). See also U.N. SECURITY
COUNCIL RESOLUTION 1315, U.N. Doc S/RES/1315 (Aug. 14, 2000) (“Requests the Secretary-General to negotiate
an agreement with the Government of Sierra Leone to create an independent special court consistent with thisresolution,”).
291

Statute of the Special Court for Sierra Leone, art. 1(1) Attachment to Agreement between the United Nations andthe Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, in Appendix II to Letter
dated 6 March 2002 from the Secretary-General addressed to the President of the Security Council, U.N. Doc
S/2002/246, 17 (Mar. 8, 2002) (“There is hereby established a Special Court for Sierra Leone to prosecute persons
who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law
committed in the territory of Sierra Leone since 30 November 1996.”).
292

See Harold Hongju Koh, Legal Adviser, Department of State, Remarks on international criminal justice at the
Vera Institute of Justice in New York and at Leiden University, Campus The Hague, 2012 DIGEST OF UNITEDSTATES PRACTICE IN INTERNATIONAL LAW 61, 66 (“Similarly, in Cambodia, the international community worked
long and hard with domestic authorities to pursue accountability for atrocity crimes that took place decades ago.
The Khmer Rouge Tribunal – formally, the Extraordinary Chambers in the Courts of Cambodia (ECCC) – was adifferent type of hybrid, established under domestic law but regulated by a UN-Cambodia agreement.”). See also1130

following an agreement between the United Nations and Lebanon to prosecute, inter alia,
persons responsible for the February 2005 attack resulting in the death of former Lebanese Prime
Minister Rafiq Hariri. 293
18.21 LIMITS ON THE PUNISHMENT OF INDIVIDUALS UNDER THE LAW OF WAR
International law places certain limits on the authority of States, whether acting
individually, or together with other States, to punish individuals for violations committed during
armed conflict.
18.21.1 Jurisdiction Over War Crimes. States must have jurisdiction over an alleged
offense to prosecute a person for committing war crimes or other punishable offenses committed
during armed conflict. 294
Jurisdiction over war crimes has traditionally been exercised by belligerents with respect
to offenses committed by or against their nationals. 295 In addition, belligerents have also
prosecuted war crimes committed by enemy nationals against nationals of allies and of co-

U.N. GENERAL ASSEMBLY, Report of the Secretary-General on Khmer Rouge trials, U.N. Doc A/60/565 (Nov. 25,
2005) (“On 28 April 2005 a notification was sent to the Government of Cambodia indicating that the legal
requirements on the United Nations side for the entry into force of the Agreement between the United Nations andthe Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed
during the Period of Democratic Kampuchea, done at Phnom Penh on 6 June 2003, had been complied with. The
Agreement accordingly entered into force on 29 April 2005, the day after the notification, in accordance with its
article 32. The Government of Cambodia had previously provided its notification under that article, on 16
November 2004.”).
293

Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for
Lebanon, art. 1, Annex to U.N. SECURITY COUNCIL RESOLUTION 1757, U.N. Doc S/RES/1757 (2007) (“There is
hereby established a Special Tribunal for Lebanon to prosecute persons responsible for the attack of 14 February2005 resulting in the death of former Lebanese Prime Minister Rafiq Hariri and in the death or injury of otherpersons.”).
294

See, e.g., United States v. Josef Altstoetter, et al. (Justice Case), III TRIALS OF WAR CRIMINALS BEFORE THE
NMT 969-70 (“We are empowered to determine the guilt or innocence of persons accused of acts described as ‘war
crimes’ and ‘crimes against humanity’ under rules of international law. At this point, in connection with cherisheddoctrines of national sovereignty, it is important to distinguish between the rules of common international law which
are of universal and superior authority on the one hand, and the provisions for enforcement of those rules which are
by no means universal on the other. … This universality and superiority of international law does not necessarily
imply universality of its enforcement.”).
295

United States v. Josef Altstoetter, et al. (Justice Case), III TRIALS OF WAR CRIMINALS BEFORE THE NMT 1189-90(Separate Opinion of Judge Blair) (“[D]uring hostilities and before their formal termination belligerents haveconcurrent jurisdiction over war crimes committed by the captured enemy persons in their territory or against theirnationals in time of war. … After armistice or peace agreement the matter of punishment of war crimes isdetermined by the terms thereof.”); United States v. Ohlendorf, et al. (Einsatzgruppen Case), IV TRIALS OF WAR
CRIMINALS BEFORE THE NMT 460 (rejecting the defense counsel’s argument that Russia’s could not participate in
the Tribunal instead explaining that “Russia's participation in the formulation of Control Council Law No. 10 is inaccordance with every recognized principle of international law,” because “[t]here is no authority which denies any
belligerent nation jurisdiction over individuals in its actual custody charged with violation of international law” and“no one would be so bold as to suggest that what occurred between Germany and Russia from June 1941 to May
1945 was anything but war, and, being war, that Russia would not have the right to try the alleged violators of therules of war on her territory and against her people.”).

1131

belligerents, and stateless persons. 296 Because jurisdiction over war crimes has sometimes been
exercised by belligerents against enemy nationals without regard to the territorial location of theoffense, it has sometimes been characterized as “universal” in character. 297
In the past, neutral States generally did not exercise jurisdiction with respect to allegedlaw of war violations between belligerents. 298 For example, States have declined to exercise
jurisdiction with respect to offenses committed by enemy nationals before those States became
involved in an armed conflict with that State. 299
296

1956 FM 27-10 (Change No. 1 1976) ¶507a (“The jurisdiction of United States military tribunals in connection
with war crimes is not limited to offenses committed against nationals of the United States but extends also to all
offenses of this nature committed against nationals of allies and of cobelligerents and stateless persons.”).
297

See, e.g., TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 155 footnote 12 (“It is generally agreed that post
World War II practice has firmly established the so-called principle of ‘universality of jurisdiction over war crimes,’
thereby permitting belligerents to exercise jurisdiction over individuals accused of war crimes without regard to theplace where an offense was committed or to the nationality of the victims. In its most general form this principle
might well be interpreted to permit neutral states to try and punish war criminals who fall under their control. But
there is no record of neutral states making such an attempt, and the right of neutrals to do so remains doubtful.”); G.
Brand, The War Crimes Trials and the Laws of War, 28 BRITISH YEAR BOOK OF INTERNATIONAL LAW 414, 416(1951) (“Thus the doctrine of universality of war crimes is now generally accepted. Account has been taken of thecrime itself rather than of (a) the nationality of the victim, provided that he has been, from the point of view of thecourt, an Allied national or could be treated as such; (b) the nationality of the accused, provided that he can be
regarded as having identified himself with the enemy; or (c) the place of the offence.”); Willard B. Cowles,
Universality of Jurisdiction over War Crimes, 33 CALIFORNIA LAW REVIEW 177, 178 (1945) (describing thequestion of “whether the jurisdiction principle of universality is applicable to the punishment of war crimes” as “thequestion whether, under international law, a belligerent State has jurisdiction to punish an enemy war criminal in its
custody when the victim of the war crime was a national of another State and the offense took place outside ofterritory under control of the punishing State.”).
298

La Amistad De Rues, 18 U.S. 385, 390 (1820) (“consider[ing] it no part of the duty of a neutral nation tointerpose, upon the mere footing of the law of nations, to settle all the rights and wrongs which may grow out of acapture between belligerents” and noting that alleged law of war violations between belligerents “have never been
held within the cognizance of the prize tribunals of neutral nations.”); Juando v. Taylor, 13 F. Cas. 1179, 1189
(S.D.N.Y. 1818) (No. 7558) (explaining that “no suit or proceeding of any sort can be maintained in the courts of aneutral nation, by the subjects of one belligerent against the subjects of the other, for acts growing out of the war”).
299

See James Brown Scott and Robert Lansing, Memorandum of Reservations Presented by the Representatives of
the United States to the Report of the Commission on Responsibilities, Annex II to the Report Presented to thePreliminary Peace Conference, Mar. 29, 1919, by the Commission on the Responsibility of the Authors of the War
and on Enforcement of Penalties, reprinted in 14 AJIL 95, 147 (1920) (“It seemed elementary to the American
representatives that a country could not take part in the trial and punishment of a violation of the laws and customsof war committed by Germany and her Allies before the particular country in question had become a party to thewar against Germany and her Allies; that consequently the United States could not institute a military tribunal within
its own jurisdiction to pass upon violations of the laws and customs of war, unless such violations were committed
upon American persons or American property, and that the United States could not properly take part in the trial andpunishment of persons accused of violations of the laws and customs of war committed by the military or civil
authorities of Bulgaria or Turkey.”). Cf. United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR
WAR CRIMINALS BEFORE THE IMT 254 (“To constitute Crimes against Humanity, the acts relied on before theoutbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the
Tribunal. The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not beensatisfactorily proved that they were done in execution of, or in connection with, any such crime. The Tribunal
therefore cannot make a general declaration that the acts before 1939 were Crimes against Humanity within themeaning of the Charter, but from the beginning of the war in 1939 War Crimes were committed on a vast scale,
which were also Crimes against Humanity; and insofar as the inhumane acts charged in the Indictment, and1132

Some have argued that States may exercise purely universal jurisdiction over war crimes,
i.e., jurisdiction to define and prescribe punishment based simply on the character of the offense
as a war crime. 300 Until the 1990s, no such attempts were made by States to exercise jurisdiction
on this basis. 301 Congress declined to authorize prosecutions for war crimes based on thisprinciple. 302 Efforts by certain States to undertake prosecutions on the basis of this principle
have been controversial. 303 Such prosecutions have generally not been successful unless theState concerned has consented. 304

committed after the beginning of the war, did not constitute War Crimes, they were all committed in execution of, orin connection with, the aggressive war, and therefore constituted Crimes against Humanity.”).
300

I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 254 (§404, Reporters’ Note 1)(1987) (“A state has jurisdiction to define and prescribe punishment for certain offenses recognized by thecommunity of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft,
genocide, war crimes, and perhaps certain acts of terrorism, even where none of the bases of jurisdiction indicated in§ 402 is present.”); but see I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 257-58(§404, Reporters’ Note 3) (1987) (“The previous Restatement cited only piracy as an offense subject to universal
jurisdiction. See § 34. Reporters’ Note 2 of that section listed other crimes of universal interest but indicated they
were not yet subject to universal jurisdiction as a matter of international law.”).
301

I RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES 256 (1987) (“apparently no state
has exercised such jurisdiction [over war crimes and genocide] in circumstances where no other basis forjurisdiction under § 402 was present.”); Committee on the Judiciary, House of Representatives Report No. 104-698,
8 (Jul. 24, 1996) (“The Committee has been informed that there has never been a single case of a signatory country
to the Geneva conventions exercising its own criminal jurisdiction over an alleged war criminal on the basis ofuniversal jurisdiction.”).
302

See Committee on the Judiciary, House of Representatives Report No. 104-698, 8 (Jul. 24, 1996) (“TheCommittee decided that the expansion of H.R. 3680 to include universal jurisdiction would be an unwise [sic] atpresent. Domestic prosecution based on universal jurisdiction could draw the United States into conflicts in which
this country has no place and where our national interests are slight. In addition, problems involving witnesses andevidence would likely be daunting. This does not mean that war criminals should go unpunished. There are ample
alternative venues available which are more appropriate. Prosecutions can be handled by the nations involved or byinternational tribunal. If a war criminal is discovered in the United States, the federal government can extradite theindividual upon request in order to facilitate prosecution overseas. The Committee is not presently aware that thesealternative venues are inadequate to meet the task.”).
303

See, e.g., Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, 2002
I.C.J. 35, 43 (¶15) (Separate Opinion of President Guillaume) (“International criminal law has itself undergone
considerable development and constitutes today an impressive legal corpus. It recognizes in many situations thepossibility, or indeed the obligation, for a State other than that on whose territory the offence was committed toconfer jurisdiction on its courts to prosecute the authors of certain crimes where they are present on its territory.
International criminal courts have been created. But at no time has it been envisaged that jurisdiction should beconferred upon the courts of every State in the world to prosecute such crimes, whoever their authors and victims
and irrespective of the place where the offender is to be found. To do this would, moreover, risk creating total
judicial chaos. It would also be to encourage the arbitrary, for the benefit of the powerful, purportedly acting as
agent for an ill-defined ‘international community.’ Contrary to what is advocated by certain publicists, such adevelopment would represent not an advance in the law but a step backward.”).
304

Roman Anatolevich Kolodkin, Special Rapporteur, U.N. International Law Commission, Second report on
immunity of State officials from foreign criminal jurisdiction, U.N. Doc A/CN.4/631, ¶16 (Jun. 10, 2010) (“It isnoted that until now attempts to exercise universal jurisdiction that have been successful have just taken place incases where the State concerned consented. In other cases, States usually react negatively to attempts to exercise
foreign criminal jurisdiction even over their former Heads of State and Government, as they also do, however, inrespect of other high-ranking officials. In the absence of cooperation with the State whose official a case concerns,1133

18.21.2 Tu Quoque. The international law doctrine tu quoque may be understood as anargument that a State does not have standing to complain about a practice in which it itself
engages. 305
For example, it would seem unfair for a State to punish members of opposing militaryforces for committing acts that it considered lawful for members of its armed forces toperform. 306 On the other hand, as a general matter, the fact that criminal acts have beencommitted by opposing armed forces does not constitute a defense to criminal liability. In
addition, as a general matter, the fact that members of its armed forces have committed aviolation does not preclude a State from punishing captured members of opposing armed forces
for such violations. 307 Similarly, the authority of a State to punish its own citizens, inaccordance with municipal criminal law, for violations of international law is not affected by thisrule. 308
18.21.3 Fundamental Fairness Requirements.
18.21.3.1 Fair Trial Requirements. Any person charged with a crime under

the proper and legally correct criminal prosecution of such a person is practically impossible. On the whole,
therefore, such attempts end up merely complicating relations between States.”).
305

Department of Defense, Office of the General Counsel, An Assessment of International Legal Issues inInformation Operations 46 (May 1999) (“The lack of strong international legal sanctions for peacetime espionage
may also constitute an implicit application of the international law doctrine called “tu quoque” (roughly, a nation has
no standing to complain about a practice in which it itself engages). Whatever the reasons, the international legal
system generally imposes no sanctions upon nations for acts of espionage except for the political costs of public
denunciation, which don’t seem very onerous.”). See also FRITS KALSHOVEN, BELLIGERENT REPRISALS 364 (“Thereis, however, another possible view of tu quoque, according to which this does not so much constitute a substantive
justificatory ground as an argument of a procedural order, to the effect that a belligerent cannot charge his enemy
with a particular form of illegal warfare if he has himself violated the same rule or rules, without this being justified
as a reprisal. For this argument, it is not important whether the belligerent was the first to commit that violation, noreven whether he was aware that the enemy was guilty of the same illegal conduct: the contention is that the merefact of his having infringed the identical norm precludes him from charging that particular illegality against theenemy.”).
306

United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT 313(“In view of all of the facts proved, and in particular of an order of the British Admiralty announced on 8 May 1940,
according to which all vessels should be sunk at night in the Skagerrak, and the answer to interrogatories by Admiral
Nimitz that unrestricted submarine warfare was carried on in the Pacific Ocean by the United States from the firstday that nation entered the war, the sentence of Donitz is not assessed on the ground of his breaches of theinternational law of submarine warfare.”).
307

See United States v. von Leeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE
NMT 482 (“Under general principles of law, an accused does not exculpate himself from a crime by showing that
another committed a similar crime, either before or after the alleged commission of the crime by the accused.”).
308

Sentence of the Bundesgerichtshof of Sept. 30, 1960, reprinted in FRITS KALSHOVEN, BELLIGERENT REPRISALS
365 footnote 15 (2005) (citing 32 International Law Reports 564) (“The rule of ‘tu quoque’ merely means that noState may accuse another State of violations of international law and exercise criminal jurisdiction over the latter’s
citizens in respect of such violations if it is itself guilty of similar violations against the other State or its allies. The
right and duty of a State to hold its own citizens responsible, in accordance with municipal criminal law, forviolations of international law is not affected by this rule.”).

1134

international law has the right to a fair trial on the facts and law. 309
In all circumstances, persons who are accused of grave breaches of the 1949 Geneva
Conventions shall benefit from safeguards of proper trial and defense, which shall not be lessfavorable than those provided by Article 105 and those following of the GPW. 310 In addition,other fundamental fair trial guarantees should be afforded. 311
18.21.3.2 Punishment of Violations of the Law of War. The punishment of war
crimes may vary according to the particular forum in which the prosecution is brought. For
example, what punishments are authorized may depend on a State’s domestic law or the statuteof an international criminal tribunal. In addition, special rules address the punishment of POWs
and protected persons. However, the following principles apply, as a matter of international law,to the punishment of violations of the law of war:•

The punishment imposed for a violation of the law of war must be proportionate to thegravity of the offense.

•

The death penalty may be imposed for grave breaches of the law.

•

Corporal punishment is excluded.

•

Punishments should be deterrent, and in imposing a sentence of imprisonment it is notnecessary to take into consideration the end of the war, which does not of itself limit theimprisonment to be imposed. 312
18.21.4 Limitations on the Trial and Punishment of Certain Classes of Persons.
18.21.4.1 Limitations on the Trial and Punishment of POWs. The trial and

309

U.N. International Law Commission, Principles of International Law Recognized in the Charter of the Nürnberg
Tribunal and in the Judgment of the Tribunal, in Report of the International Law Commission on its Second Session,
5 June to 29 July 1950, (Document A/1316), reprinted in II YEARBOOK OF INTERNATIONAL LAW COMMISSION 1950,
374, 375 U.N. Doc. A/CN. 4/SER.A/1950/Add. 1 (Jun. 6, 1957) (“PRINCIPLE V Any person charged with a crime
under international law has the right to a fair trial on the facts and law.”).
310

GWS art. 49 (“In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence,
which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention
relative to the Treatment of Prisoners of War of August 12, 1949.”); GWS-SEA art. 50 (same); GC art. 146 (same);
GPW art. 129 (“In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence,
which shall not be less favourable than those provided by Article 105 and those following of the present
Convention.”). Refer to § 9.28.4 (Rights of Defense and Trial Procedure).
311

Refer to § 8.16 (Criminal Procedure and Punishment).

312

1956 FM 27-10 (Change No. 1 1976) ¶508 (“The punishment imposed for a violation of the law of war must be
proportionate to the gravity of the offense. The death penalty may be imposed for grave breaches of the law.
Corporal punishment is excluded. Punishments should be deterrent, and in imposing a sentence of imprisonment it
is not necessary to take into consideration the end of the war, which does not of itself limit the imprisonment to be
imposed.”).

1135

punishment of POWs must comport with the rules prescribed by the GPW. 313
18.21.4.2 Limitations on the Trial and Punishment of Protected Persons. The
trial and punishment of protected persons must comport with the rules prescribed by the GC. 314
18.21.4.3 Limitations on the Trial and Punishment of Persons Entitled to thePrivileges of Combatant Status. As a matter of international law, persons who are entitled to theprivileges of combatant status have a certain legal immunity from the domestic law of foreign
States. 315
18.22 PRINCIPLES OF INDIVIDUAL CRIMINAL RESPONSIBILITY FOR CRIMES UNDER INTERNATIONAL
LAW
Individual criminal responsibility exists for certain violations of the international law.
18.22.1 Individual Criminal Responsibility for Acts Constituting Crimes Under
International Law. Any person who commits an act that constitutes a crime under internationallaw is responsible therefor and liable to punishment. 316 International law imposes duties andliabilities on individuals as well as States, and individuals may be punished for violations ofinternational law. 317
18.22.2 Absence of Penalty Under Domestic Law Does Not Relieve a Person of
Responsibility. The fact that internal law does not impose a penalty for an act that constitutes acrime under international law does not relieve the person who committed the act from
responsibility under international law. 318

313

Refer to § 9.26 (General Principles Applicable to POW Discipline); § 9.28 (Judicial Proceedings andPunishment).
314

Refer to § 10.27 (General Provisions Applicable to Both Judicial and Disciplinary Sanctions Regarding
Internees); § 10.29 (Judicial Proceedings Regarding Protected Persons in Occupied Territory or Internees in a
Belligerent’s Home Territory).
315

Refer to § 4.4.3 (Combatants - Legal Immunity From a Foreign State’s Domestic Law).

316

See U.N. International Law Commission, Principles of International Law Recognized in the Charter of the
Nürnberg Tribunal and in the Judgment of the Tribunal, in Report of the International Law Commission on its
Second Session, 5 June to 29 July 1950, (Document A/1316), reprinted in II YEARBOOK OF INTERNATIONAL LAWCOMMISSION 1950, 374 U.N. Doc. A/CN. 4/SER.A/1950/Add. 1 (Jun. 6, 1957) (“PRINCIPLE I Any person who
commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.”).
317

United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT 223(“That international law imposes duties and liabilities upon individuals as well as upon States has long beenrecognized. … Many other authorities could be cited, but enough has been said to show that individuals can bepunished for violations of international law. Crimes against international law are committed by men, not by abstract
entities, and only by punishing individuals who commit such crimes can the provisions of international law be
enforced.”) (citing Ex parte Quirin, 317 U.S. 1 (1942)). Compare § 10.3.5 (State Responsibility for Its Agents’
Treatment of Protected Persons).
318

U.N. International Law Commission, Principles of International Law Recognized in the Charter of the Nürnberg
Tribunal and in the Judgment of the Tribunal, in Report of the International Law Commission on its Second Session,
5 June to 29 July 1950, (Document A/1316), reprinted in II YEARBOOK OF INTERNATIONAL LAW COMMISSION 1950,
374 U.N. Doc. A/CN. 4/SER.A/1950/Add. 1 (Jun. 6, 1957) (“PRINCIPLE II The fact that internal law does not impose

1136

For example, a State may lack domestic legislation that imposes any penalty for an act
that violates international law. Nonetheless, just as a State’s municipal law cannot excuse its
failure to comply with its international legal obligations, a person is not relieved of responsibility
for an act constituting a crime under international law because his or her State’s municipal law
does not impose any penalty for the offense. 319
18.22.3 Official Position Does Not Relieve a Person of Responsibility. The fact that aperson who committed an act which constitutes a crime under international law acted as Head ofState or responsible Government official does not relieve him or her of responsibility underinternational law. 320
This principle has been reflected in the statutes of international criminal tribunals. 321
18.22.4 Acting Pursuant to Orders Does Not Relieve a Person of Responsibility. The factthat a person acted pursuant to orders of his or her Government or of a superior does not relievethat person from responsibility under international law, provided it was possible in fact for that
person to make a moral choice. 322 This principle has been reflected in the statutes ofinternational criminal tribunals. 323 It may also be understood as part of a broader principle thata penalty for an act which constitutes a crime under international law does not relieve the person who committed theact from responsibility under international law.”).
319

Refer to § 1.10.1.4 (Force of International Law Notwithstanding a State’s Domestic Law).

320

U.N. International Law Commission, Principles of International Law Recognized in the Charter of the Nürnberg
Tribunal and in the Judgment of the Tribunal, in Report of the International Law Commission on its Second Session,
5 June to 29 July 1950, (Document A/1316), reprinted in II YEARBOOK OF INTERNATIONAL LAW COMMISSION 1950,
374, 375 U.N. Doc. A/CN. 4/SER.A/1950/Add. 1 (Jun. 6, 1957) (“PRINCIPLE III The fact that a person who
committed an act which constitutes a crime under international law acted as Head of State or responsible
Government official does not relieve him from responsibility under international law.”).
321

Charter of the International Military Tribunal, art. 7, annexed to Agreement by the Government of the United
Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional
Government of the French Republic and the Government of the Union of Soviet Socialist Republics for theProsecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 UNTS 280, 288(“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.”); ICTY STATUTE art. 7(2)(“The official position of any accused person, whether as Head of State or Government or as a responsible
Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.”).
322

See U.N. International Law Commission, Principles of International Law Recognized in the Charter of the
Nürnberg Tribunal and in the Judgment of the Tribunal, in Report of the International Law Commission on its
Second Session, 5 June to 29 July 1950, (Document A/1316), reprinted in II YEARBOOK OF INTERNATIONAL LAWCOMMISSION 1950, 374, 375 U.N. Doc. A/CN. 4/SER.A/1950/Add. 1 (Jun. 6, 1957) (“PRINCIPLE IV The fact that aperson acted pursuant to order of his Government or of a superior does not relieve him from responsibility underinternational law, provided a moral choice was in fact possible to him.”).
323

Charter of the International Military Tribunal, art. 8, annexed to Agreement by the Government of the United
Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional
Government of the French Republic and the Government of the Union of Soviet Socialist Republics for theProsecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 UNTS 280, 288(“The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from
responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice sorequires.”); ICTY STATUTE art. 7(4) (“The fact that an accused person acted pursuant to an order of a Government orof a superior shall not relieve him of criminal responsibility, … .”); ICTR STATUTE art. 6(4) (“The fact that an

1137

military personnel cannot justify committing unlawful acts by producing the order of theirsuperior. 324
Although it is clear that merely the fact that the act at issue was committed pursuant tosuperior orders does not constitute a defense to criminal responsibility under international law,
the precise extent to which superior orders may constitute a defense or excuse may vary
according to the forum in which a violation is tried. 325
In cases in which the illegality of the order is not apparent, the subordinate might lack thewrongful intent necessary to the commission of the crime. 326 Subordinates, absent specificknowledge to the contrary, may presume orders to be lawful. 327 The acts of a subordinate donein compliance with an unlawful order given by a superior are generally excused unless thesuperior’s order is one that a person of ordinary sense and understanding would, under thecircumstances, know to be unlawful (e.g., to torture or murder a detainee), or if the order inquestion is actually known to the accused to be unlawful. 328
On the other hand, subordinates must refuse to comply with clearly illegal orders toaccused person acted pursuant to an order of a Government or of a superior shall not relieve him [or her] of criminal
responsibility … .”).
324

See Mitchell v. Harmony, 54 U.S. 115, 137 (1851) (“Consequently the order given was an order to do an illegal
act; to commit a trespass upon the property of another; and can afford no justification to the person by whom it was
executed. . . . And upon principle, independent of the weight of judicial decision, it can never be maintained that a
military officer can justify himself for doing an unlawful act, by producing the order of his superior. The order may
palliate, but it cannot justify.”).
325

LEVIE, POWS 389 (“The Commission of Experts convened by the ICRC in December 1948 in connection withthe grave-breaches provisions which had been approved and the Resolution which had been adopted by the 1948
Stockholm Conference, drafted a proposed article relating solely to the defense of superior orders. The 1949
Diplomatic Conference did not include such a provision in the Convention as finally approved. Accordingly, thisproblem will once again have to be resolved on a national basis. Efforts to solve it on an international basis inrelated areas have been undertaken by various organs of the United Nations, but those efforts have complicated,rather than clarified, the problem. It is obvious that there is no clear and well-defined rule which will be applied tothe defense of superior orders when it is advanced, as it undoubtedly will be, in future trials for violations of thegrave breaches and other provisions of the 1949 Convention. However, it is believed that it may be safely stated
that, as after World War II, the mere fact that the act complained of was committed pursuant to superior orders will
not suffice as a defense.”).

326

United States v. List, et al. (The Hostage Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 1236 (“We areof the view, however, that if the illegality of the order was not known to the inferior, and he could not reasonably
have been expected to know of its illegality, no wrongful intent necessary to the commission of a crime exists andthe interior [sic] will be protected. But the general rule is that members of the armed forces are bound to obey only
the lawful orders of their commanding officers and they cannot escape criminal liability by obeying a command
which violates international law and outrages fundamental concepts of justice.”).
327

Refer to § 18.3.2.1 (Clearly Illegal Orders to Commit Law of War Violations).

328

United States v. Calley, 22 U.S.C.M.A. 534, 542 (C.M.A. 1973) (“The acts of a subordinate done in compliancewith an unlawful order given him by his superior are excused and impose no criminal liability upon him unless thesuperior’s order is one which a man of ordinary sense and understanding would, under the circumstances, know to
be unlawful, or if the order in question is actually know to the accused to be unlawful.”).

1138

commit violations of the law of war. 329
That an offense was committed pursuant to superior orders may be considered in
mitigation of punishment. 330 The degree to which superior orders should mitigate punishment
would depend on the specific circumstances of the case. 331
18.23 THEORIES OF INDIVIDUAL CRIMINAL LIABILITY
Individuals may be held liable for violations of the law of war whether they havecommitted them directly or are complicit in the commission of such crimes. 332
The theories of liability that apply to a law of war violation may vary depending on theparticular forum (e.g., U.S. Federal court, U.S. military commission, International Criminal
Tribunal for the Former Yugoslavia) in which the violation is being adjudicated. Modes of
liability for law of war offenses may include ordering, instigating or directly inciting, command
responsibility, aiding and abetting, conspiracy, and joint criminal enterprise.
In some cases, these theories of liability may be viewed as ways of attributing an offensethat is committed by one person to another person. In other cases, these theories of liability may
be viewed as distinct offenses; for example, a first offense is committed by one person and asecond offense is committed by another person that is somehow related to the first offense.
18.23.1 Ordering. A person who orders another person to commit an offense is generally
punishable as though that person had committed the offense directly.

329

Refer to § 18.3.2 (Refuse to Comply With Clearly Illegal Orders to Commit Law of War Violations).

330

See, e.g., 1956 FM 27-10 (Change No. 1 1976) ¶509a (“In all cases where the order is held not to constitute a
defense to an allegation of war crime, the fact that the individual was acting pursuant to orders may be considered in
mitigation of punishment.”); ICTY STATUTE art. 7(4) (“The fact that an accused person acted pursuant to an order ofa Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigationof punishment if the International Tribunal determines that justice so requires.”); ICTR STATUTE art. 6(4).
331

For example, Trial of Lieutenant-General Shigeru Sawada and Three Others, V U.N. LAW REPORTS 1, 7 (U.S.
Military Commission, Shanghai, Feb. 27-Apr. 15, 1946) (“The offences of each of the accused resulted largely fromobedience to the laws and instructions of their Government and their Military Superiors. They exercised no
initiative to any marked degree. The preponderance of evidence shows beyond reasonable doubt that other officers,
including high governmental and military officials, were responsible for the enactment of the Ex Post Facto ‘Enemy
Airmen’s Law’ and the issuance of special instructions as to how these American prisoners were to be treated, tried,sentenced and punished. The circumstances set forth above do not entirely absolve the accused from guilt.
However, they do compel unusually strong mitigating consideration, applicable to each accused in various
degrees.”).

332

U.N. International Law Commission, Principles of International Law Recognized in the Charter of the Nürnberg
Tribunal and in the Judgment of the Tribunal, in Report of the International Law Commission on its Second Session,
5 June to 29 July 1950, (Document A/1316), reprinted in II YEARBOOK OF INTERNATIONAL LAW COMMISSION 1950,
374, 377 U.N. Doc. A/CN. 4/SER.A/1950/Add. 1 (Jun. 6, 1957) (“PRINCIPLE VII Complicity in the commission of acrime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime underinternational law.”).

1139

This principle is reflected in the Uniform Code of Military Justice. 333 Statutes ofinternational criminal tribunals have also reflected this mode of liability. 334
18.23.2 Instigating or Directly Inciting. Instigating or direct incitement of an offense ispunishable. 335 Statutes of international criminal tribunals have also reflected this mode ofliability. 336
18.23.3 Command Responsibility. Commanders have duties to take necessary andreasonable measures to ensure that their subordinates do not commit violations of the law ofwar. 337 Failures by commanders of their duties to take necessary and reasonable measures toensure that their subordinates do not commit violations of the law of war can result in criminal
responsibility. 338
18.23.3.1 Command Responsibility as a Distinct Offense. Commanders may bepunished directly for their failure to take necessary and reasonable measures to ensure that theirsubordinates do not commit violations of the law of war. For example, such failures may bepunished under the Uniform Code of Military Justice as dereliction of duty or violation of orders

333

10 U.S.C. § 877 (“Any person punishable under this chapter who— (1) commits an offense punishable by thischapter, or aids, abets, counsels, commands, or procures its commission; or (2) causes an act to be done which if
directly performed by him would be punishable by this chapter; is a principal.”).
334

See ICTY STATUTE art. 7(1) (“A person who planned, instigated, ordered, committed or otherwise aided andabetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shallbe individually responsible for the crime.”); ICTR STATUTE art. 6(1) (“A person who planned, instigated, ordered,committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles
2 to 4 of the present Statute, shall be individually responsible for the crime.”).

335

1956 FM 27-10 (Change No. 1 1976) ¶500 (“Conspiracy, direct incitement, and attempts to commit, as well ascomplicity in the commission of, crimes against peace, crimes against humanity, and war crimes are punishable.”).
336

See ICTY STATUTE art. 7(1) (“A person who planned, instigated, ordered, committed or otherwise aided andabetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shallbe individually responsible for the crime.”); ICTR STATUTE art. 6(1) (“A person who planned, instigated, ordered,committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles
2 to 4 of the present Statute, shall be individually responsible for the crime.”).

337

Refer to § 18.4 (Commanders’ Duty to Implement and Enforce the Law of War).

338

See also 1956 FM 27-10 (Change No. 1 1976) ¶501 (“In some cases, military commanders may be responsible
for war crimes committed by subordinate members of the armed forces, or other persons subject to their control.
Thus, for instance, when troops commit massacres and atrocities against the civilian population of occupied territory
or against prisoners of war, the responsibility may rest not only with the actual perpetrators but also with thecommander. Such a responsibility arises directly when the acts in question have been committed in pursuance of anorder of the commander concerned. The commander is also responsible if he has actual knowledge, or should haveknowledge, through reports received by him or through other means, that troops or other persons subject to his
control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps toinsure compliance with the law of war or to punish violators thereof.”). Consider AP I art. 86(2) (“The fact that abreach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors frompenal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled
them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach andif they did not take all feasible measures within their power to prevent or repress the breach.”).

1140

to take such measures. 339
18.23.3.2 Command Responsibility as a Mode of Liability for an Offense. In
some cases, the failure by commanders to fulfill their duties to take necessary and reasonablemeasures to ensure that their subordinates do not commit violations of the law of war are notpunished directly as breaches of those duties, but instead by imputing responsibility for theoffense committed by the subordinates to the commander.
Command responsibility as a mode of liability for an offense is reflected in U.S. statutes
governing military commissions. 340 The statutes of international tribunals have also reflectedcommand responsibility as a mode of liability. 341 In some cases, this theory of superior
responsibility has been applied to civilian superiors. 342
Command responsibility, as a mode of liability, is not a form of strict liability. 343 The
commander’s personal dereliction must have contributed to or failed to prevent the offense; there
must be a personal neglect amounting to a wanton, immoral disregard of the action of his or her
subordinates amounting to acquiescence in the crimes. 344

339

Refer to § 18.19.3.1 (Uniform Code of Military Justice Offenses).

340

10 U.S.C. § 950q (“Any person is punishable under this chapter who— … (3) is a superior commander who, withregard to acts punishable under this chapter, knew, had reason to know, or should have known, that a subordinate
was about to commit such acts or had done so and who failed to take the necessary and reasonable measures toprevent such acts or to punish the perpetrators thereof, is a principal.”).
341

See ICTY STATUTE art. 7(3) (“The fact that any of the acts referred to in articles 2 to 5 of the present Statute wascommitted by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to knowthat the subordinate was about to commit such acts or had done so and the superior failed to take the necessary andreasonable measures to prevent such acts or to punish the perpetrators thereof.”); ICTR STATUTE art. 6(3) (same);
ROME STATUTE art. 28.

342

See Prosecutor v. Musema, ICTR Trial Chamber I, ICTR-96-13-A, Judgment and Sentence, ¶132 (Jan. 27, 2000)(“As to whether the form of individual criminal responsibility referred to under Article 6(3) of the Statute also
applies to persons in both military and civilian authority, it is important to note that during the Tokyo Trials, civilian
authorities were convicted of war crimes under this principle.”).
343

See also Prosecutor v. Kordic and Cerkez, ICTY Trial Chamber, IT-95-14/2-T, Judgment, ¶369 (Feb. 26, 2001)(“It should be emphasised that the doctrine of command responsibility does not hold a superior responsible merely
because he is in a position of authority as, for a superior to be held liable, it is necessary to prove that he ‘knew or
had reason to know’ of the offences and failed to act to prevent or punish their occurrence. Superior responsibility,
which is a type of imputed responsibility, is therefore not a form of strict liability.”).
344

United States v. von Leeb, et al. (High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 543(“A high commander cannot keep completely informed of the details of military operations of subordinates and mostassuredly not of every administrative measure. He has the right to assume that details entrusted to responsible
subordinates will be legally executed. The President of the United States is Commander in Chief of its militaryforces. Criminal acts committed by those forces cannot in themselves be charged to him on the theory ofsubordination. The same is true of other high commanders in the chain of command. Criminality does not attach to
every individual in this chain of command from that fact alone. There must be a personal dereliction. That canoccur only 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 ofinternational law would go far beyond the basic principles of criminal law as known to civilized nations.”).

1141

18.23.4 Aiding and Abetting. The theory of aiding and abetting holds an individual liable
for an offense committed by another based on certain assistance that the individual gave in
relation to the crime. Aiding and abetting liability for a crime can be usefully analyzed asconsisting of three elements: (1) knowledge of the illegal activity that is being aided and abetted;(2) a desire to help the activity succeed; and (3) some act of helping. 345
This theory of liability is applicable in prosecutions in Federal court under title 18, 346
prosecutions under the Uniform Code of Military Justice, 347 and prosecutions by U.S. militarycommission. 348 This theory of liability has also been reflected in the statutes of international
criminal tribunals. 349
18.23.4.1 Aiding and Abetting as a Principle of State Responsibility. The
principle of aiding and abetting is also reflected in principles of State responsibility. 350 As withthe principle of aiding and abetting when applied to individuals, the aid or assistance must be
given with a view to facilitating the commission of the wrongful act, and must actually do so, inorder for the State giving the aid to incur liability. 351
345

Walter Dellinger, Assistant Attorney General, United States Assistance to Countries that Shoot Down Civil
Aircraft Involved in Drug Trafficking, Jul. 14, 1994, 18 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 148, 156(“Aiding and abetting liability for a crime can be usefully analyzed as consisting of three elements: ‘[1] knowledgeof the illegal activity that is being aided and abetted, [2] a desire to help the activity succeed, and [3] some act ofhelping.’ All three elements must be present for aiding and abetting liability to attach.”) (changes in original)(citation omitted).
346

18 U.S.C. § 2 (“(a) Whoever commits an offense against the United States or aids, abets, counsels, commands,
induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done
which if directly performed by him or another would be an offense against the United States, is punishable as aprincipal.”).
347

10 U.S.C. § 877 (“Principals. Any person punishable under this chapter who- (1) commits an offense punishable
by this chapter, or aids, abets, counsels, commands, or procures its commission; or (2) causes an act to be done
which if directly performed by him would be punishable by this chapter; is a principal.”).
348

10 U.S.C § 950q (“Any person punishable under this chapter who—(1) commits an offense punishable by thischapter, or aids, abets, counsels, commands, or procures its commission; (2) causes an act to be done which if
directly performed by him would be punishable by this chapter;”).
349

ICTY STATUTE art. 7(1) (“A person who planned, instigated, ordered, committed or otherwise aided and abetted
in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be
individually responsible for the crime.”); ICTR STATUTE art. 6(1) (“A person who planned, instigated, ordered,committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles
2 to 4 of the present Statute, shall be individually responsible for the crime.”); ROME STATUTE art. 25 (“Inaccordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within
the jurisdiction of the Court if that person: … [¶3(c)] For the purpose of facilitating the commission of such a crime,
aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its
commission;”).
350

U.N. International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful Acts,
with commentaries, art. 16 (2001) (“A State which aids or assists another State in the commission of aninternationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so withknowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationallywrongful if committed by that State.”).
351

U.N. International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful Acts,
with commentaries, 66 (2001) (“The second requirement is that the aid or assistance must be given with a view to1142

18.23.4.2 Aiding and Abetting Certain Conduct as a Distinct Offense Instead of aMode of Liability for an Offense. In some cases, aiding certain conduct is a distinct offense as
opposed to a mode of liability for an offense. These cases reflect circumstances in which (or ajudgment that) there is a duty to refrain from aiding that conduct. 352
18.23.5 Conspiracy. The essence of conspiracy is the combination of minds in an
unlawful purpose. 353
The United States has taken the position that conspiracy to violate the law of war ispunishable. 354 The United States has used military tribunals to punish unprivileged belligerents
for the offense of conspiracy to violate the law of war. 355
facilitating the commission of the wrongful act, and must actually do so. This limits the application of article 16 to
those cases where the aid or assistance given is clearly linked to the subsequent wrongful conduct. A State is not
responsible for aid or assistance under article 16 unless the relevant State organ intended, by the aid or assistancegiven, to facilitate the occurrence of the wrongful conduct and the internationally wrongful conduct is actuallycommitted by the aided or assisted State. There is no requirement that the aid or assistance should have been
essential to the performance of the internationally wrongful act; it is sufficient if it contributed significantly to thatact.”).
352

See, e.g.,10 U.S.C. § 904 (making punishable “aiding the enemy”); 10 U.S.C. § 950t(25) (making punishable bymilitary commission “providing material support to terrorism”); 10 U.S.C. § 950t(26) (making punishable bymilitary commission “wrongfully aiding the enemy”); 18 U.S.C. § 2339A (making punishable “[p]roviding material
support to terrorists”); 18 U.S.C. § 2339B (making punishable “[p]roviding material support or resources todesignated foreign terrorist organizations”).
353

Smith v. United States, 133 S. Ct. 714, 719 (2013) (“The essence of conspiracy is ‘the combination of minds inan unlawful purpose.’”) (quoting United States v. Hirsch, 100 U.S. 33, 34 (1879)).
354

See, e.g., 1956 FM 27-10 (Change No. 1 1976) ¶500 (“Conspiracy, direct incitement, and attempts to commit, as
well as complicity in the commission of, crimes against peace, crimes against humanity, and war crimes arepunishable.”); Memorandum of Law from Tom C. Clark, Assistant Attorney General, to Major General Myron C.
Kramer, Judge Advocate General, 6 (Mar. 12, 1945) (“In view of the statements of the authorities on military law set
forth above, and the precedents established in the proceedings referred to above, it may be said to be wellestablished that a conspiracy to commit an offense against the laws of war is itself an offense cognizable by acommission administering military judgment.”).
355

See, e.g., Hamdan v. Rumsfeld, 548 U.S. 1, 23 (2006) (Thomas, J., dissenting) (“The Civil War experience
provides further support for the President’s conclusion that conspiracy to violate the laws of war is an offense
cognizable before law-of-war military commissions. Indeed, in the highest profile case to be tried before a militarycommission relating to that war, namely, the trial of the men involved in the assassination of President Lincoln, thecharge provided that those men had ‘combin[ed], confederat[ed], and conspir[ed]…to kill and murder’ President
Lincoln.”); Colepaugh v. Looney, 235 F.2d 429, 431 (10th Cir. 1956) (“January 11, 1945, by executive order, thePresident charged the petitioner with violation of the law of war and…to convene a military commission for trial ofsuch offenses. The first charge specified: (1) … the petitioner and one Gimpel, acting for the German Reich,secretly passed through, in civilian dress, contrary to the law of war, the military and naval lines of the United States
for the purpose of committing espionage, sabotage and other hostile acts; and (2) that the accused … appeared andremained in civil dress, contrary to the law of war behind the military lines of the United States for the purpose ofcommitting espionage, sabotage and other hostile acts. The second charge alleged … the petitioner and one Gimpel,
acting for the German Reich, were, in time of war, found lurking and acting as spies in and about the fortifications,posts and encampments … of the United States …, for the purpose of obtaining intelligence and communicating it to
the German Reich. The third charge alleged a conspiracy to commit the above substantive offenses.”); Ex Parte
Quirin, 317 U.S. 1, 23 (1942) (“On July 3, 1942, the Judge Advocate General’s Department of the Army prepared
and lodged with the Commission the following charges against petitioners, supported by specifications: 1. Violationof the law of war. 2. Violation of Article 81 of the Articles of War, defining the offense of relieving or attempting to1143

Conspiracy is an offense under the Uniform Code of Military Justice. 356 Conspiracy is anoffense under the Military Commissions Act of 2009. 357 Conspiracy to commit an offense is anoffense under Title 18. 358
The use of conspiracy may vary according the forum in which charges are brought.
However, as a general matter, charges of conspiracy for violations of the law of war by persons
belonging to the enemy should be restricted to cases of offenses in which an overt act has beencommitted because non-punitive measures, such as security detention, may be available toaddress threats. 359
18.23.5.1 Conspiracy to Commit Genocide. The Genocide Convention provides
that conspiracy to commit genocide shall be punishable. 360 Thus, mere agreement byperpetrators to commit genocide may be punishable even if no preparatory act has taken place. 361

relieve, or corresponding with or giving intelligence to, the enemy. 3. Violation of Article 82, defining the offense of
spying. 4. Conspiracy to commit the offenses alleged in charges 1, 2 and 3.”); but see Hamdan v. Rumsfeld, 548
U.S., 40-41 (2006) (Stevens, J., plurality) (“The crime of ‘conspiracy’ has rarely if ever been tried as such in thiscountry by any law-of-war military commission not exercising some other form of jurisdiction, and does not appear
in either the Geneva Conventions or the Hague Conventions—the major treaties on the law of war.”).
356

See 10 U.S.C. § 881 (“(a) Any person subject to this chapter who conspires with any other person to commit anoffense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy,
be punished as a court-martial may direct. (b) Any person subject to this chapter who conspires with any otherperson to commit an offense under the law of war, and who knowingly does an overt act to effect the object of theconspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as acourt-martial or military commission may direct, and, if death does not result to any of the victims, by suchpunishment, other than death, as a court-martial or military commission may direct.”).
357

10 U.S.C. § 950t(29) (“Any person subject to this chapter who conspires to commit one or more substantive
offenses triable by military commission under this subchapter, and who knowingly does any overt act to effect theobject of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such otherpunishment as a military commission under this chapter may direct, and, if death does not result to any of thevictims, by such punishment, other than death, as a military commission under this chapter may direct.”).
358

See, e.g., 18 U.S.C. § 371 (“If two or more persons conspire either to commit any offense against the UnitedStates, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more ofsuch persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not
more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is amisdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided forsuch misdemeanor.”); 18 U.S.C. § 2441 (including the act of conspiring to commit certain acts as punishable); 18
U.S.C. § 2442 (b) (“Whoever violates, or attempts or conspires to violate, subsection (a) shall be fined under thistitle or imprisoned not more than 20 years, or both and, if death of any person results, shall be fined under this title
and imprisoned for any term of years or for life.”).
359

WINTHROP, MILITARY LAW & PRECEDENTS 841 (“It may be added that the jurisdiction of the militarycommission should be restricted to cases of offence consisting in overt acts, i.e. in unlawful commissions or actual
attempts to commit, and not in intentions merely. Thus what would justify in war a precautionary arrest might notalways justify a trial as for a specific offence.”).
360

Convention on the Prevention and Punishment of the Crime of Genocide, art. 3, Dec. 9, 1948, 78 UNTS 277, 280(“The following acts shall be punishable: … (b) Conspiracy to commit genocide;…”).
361

See Prosecutor v. Musema, ICTR Trial Chamber I, ICTR-96-13-A, Judgment and Sentence, ¶185 (Jan. 27, 2000)(“The Chamber notes that the crime of conspiracy to commit genocide covered in the Statute is taken from the
Genocide Convention. The ‘Travaux Préparatoires’ of the Genocide Convention suggest that the rationale for1144

18.23.5.2 Conspiracy to Commit Aggressive War. The International Military
Tribunal at Nuremberg tried defendants for participation in a common plan or conspiracy towage a war of aggression. 362 However, the International Military Tribunal declined to interpret
its Charter to authorize prosecutions for conspiracy to commit war crimes and crimes against
humanity. 363
18.23.6 Other Group Criminality Theories – Joint Criminal Enterprise. In addition toconspiracy, analogous theories of group criminality have been applied to violations of the law of
war and other violations of international law. 364 Under recognized principles common to themajor legal systems of the world, persons who are connected with plans or enterprises involvedin the commission of a crime, or who belong to an organization or group engaged in thecommission of crime, may also be guilty of that crime. 365 Joining a criminal group may be
including such an offence was to ensure, in view of the serious nature of the crime of genocide, that the mere
agreement to commit genocide should be punishable even if no preparatory act has taken place.”); Ferdinand
Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze v. The Prosecutor, ICTR Appeals Chamber, ICTR-99-52-A,
Judgment, ¶894 (Nov. 28, 2007) (“Conspiracy to commit genocide under Article 2(3)(b) of the Statute has been
defined as ‘an agreement between two or more persons to commit the crime of genocide’. The existence of such an
agreement between individuals to commit genocide (or ‘concerted agreement to act’) is its material element (actusreus); furthermore, the individuals involved in the agreement must have the intent to destroy in whole or in part anational, ethnical, racial or religious group as such (mens rea).”).
362

Charter of the International Military Tribunal, art. 6, annexed to Agreement by the Government of the United
Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional
Government of the French Republic and the Government of the Union of Soviet Socialist Republics for theProsecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 UNTS 280, 288(“The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shallbe individual responsibility:– (a) Crimes against peace: namely, planning, preparation, initiation or waging of awar of aggression, or a war in violation of international treaties, agreements or assurances, or participation in acommon plan or conspiracy for the accomplishment of any of the foregoing;”).
363

United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT 226(“Count One, however, charges not only the conspiracy to commit aggressive war, but also to commit War Crimes
and Crimes against Humanity. But the Charter does not define as a separate crime any conspiracy except the one tocommit acts of aggressive war.”).
364

See, e.g., United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE
IMT 256 (“If satisfied of the criminal guilt of any organisation or group, this Tribunal should not hesitate to declareit to be criminal because the theory of ‘group criminality’ is new, or because it might be unjustly applied by somesubsequent tribunals. On the other hand, the Tribunal should make such declaration of criminality so far as possible
in a manner to insure that innocent persons will not be punished. A criminal organisation is analogous to a criminal
conspiracy in that the essence of both is cooperation for criminal purposes. There must be a group bound together
and organized for a common purpose. The group must be formed or used in connection with the commission ofcrimes denounced by the Charter. Since the declaration with respect to the organisations and groups will, as has
been pointed out, fix the criminality of its members, that definition should exclude persons who had no knowledgeof the criminal purposes or acts of the organisation and those who were drafted by the State for membership, unlessthey were personally implicated in the commission of acts declared criminal by Article 6 of the Charter as membersof the organisation. Membership alone is not enough to come within the scope of these declarations.”).
365

See, e.g., United States v. Ohlendorf, et al. (Einsatzgruppen Case), IV TRIALS OF WAR CRIMINALS BEFORE THE
NMT 372 (“In line with recognized principles common to all civilized legal systems, ¶ 2 of Article II of Control
Council Law No. 10 specifies a number of types of connection with crime which are sufficient to establish guilt.
Thus, not only are principals guilty but also accessories, those who take a consenting part in the commission ofcrime or are connected with plans or enterprises involved in its commission, those who order or abet crime, andthose who belong to an organization or group engaged in the commission of crime.”).

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punishable as a distinct offense separate from the atrocities committed by that criminal group. 366
Three categories of group criminality or “joint criminal enterprise” may be identified,
which vary according to the mental element (mens rea) of the defendant with respect to the crimethat is committed: 367•

cases of co-perpetration where all participants in the common design possess the same
criminal intent to commit a crime (and one or more of them actually perpetrate the crime,with intent); 368•

cases where the requisite mens rea comprises knowledge of the nature of the system of
ill-treatment (e.g., a German concentration camp) and intent to further the common
design of ill-treatment (such intent may be proved either directly or as a matter ofinference from the nature of the accused’s authority within the camp or organizational
hierarchy); 369 and•cases in which a “common purpose” exists because the following requirements

366James Speed, Attorney General, Military Commissions, July 1865, 11 OPINIONS OF THE ATTORNEY GENERAL
297, 312, 314 (1869) (noting that “to unite with banditti, jayhawkers, guerillas, or any other unauthorized marauders
is a high offence against the laws of war; the offence is complete when the band is organized or joined. The
atrocities committed by such a band do not constitute the offence, but make the reasons, and sufficient reasons they
are, why such banditti are denounced by the laws of war.”).

Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-A, Judgment, ¶195 (Jul. 15, 1999) (“Many post-WorldWar II cases concerning war crimes proceed upon the principle that when two or more persons act together tofurther a common criminal purpose, offences perpetrated by any of them may entail the criminal liability of all themembers of the group. Close scrutiny of the relevant case law shows that broadly speaking, the notion of common
purpose encompasses three distinct categories of collective criminality.”).
367

Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-A, Judgment, ¶220 (Jul. 15, 1999) (“In sum, the Appeals
Chamber holds … that the notion of common design as a form of accomplice liability is firmly established incustomary international law and in addition is upheld, albeit implicitly, in the Statute of the International Tribunal.
As for the objective and subjective elements of the crime, the case law shows that the notion has been applied tothree distinct categories of cases. First, in cases of co-perpetration, where all participants in the common design
possess the same criminal intent to commit a crime (and one or more of them actually perpetrate the crime, withintent).”).
368

Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-A, Judgment, ¶220 (Jul. 15, 1999) (“Secondly, in the socalled ‘concentration camp’ cases, where the requisite mens rea comprises knowledge of the nature of the system of
ill-treatment and intent to further the common design of ill-treatment. Such intent may be proved either directly or
as a matter of inference from the nature of the accused’s authority within the camp or organisational hierarchy.”).
See also Prosecutor v. Krnojelac, ICTY Appeals Chamber, IT-97-25-A, Judgment, ¶96 (Sept. 17, 2003) (“TheAppeals Chamber notes that, with regard to the crimes considered within a systemic form of joint criminal
enterprise, the intent of the participants other than the principal offenders presupposes personal knowledge of thesystem of ill-treatment (whether proven by express testimony or a matter of reasonable inference from the accused’s
position of authority) and the intent to further the concerted system of ill-treatment. Using these criteria, it is lessimportant to prove that there was a more or less formal agreement between all the participants than to prove theirinvolvement in the system. As the Appeals Chamber recalled in the Tadic Appeals Judgement, in his summary of
the Belsen case the Judge Advocate summed up and approved the Prosecution’s legal submissions in the following
terms: ‘The case for the Prosecution is that all the accused employed on the staff at Auschwitz knew that a system
and a course of conduct was in force, and that, in one way or another, in furtherance of a common agreement to run
the camp in a brutal way, all those people were taking part in that course of conduct.’”).
369

1146

concerning mens rea are fulfilled: (i) the intention to take part in a joint criminal
enterprise and to further – individually and jointly – the criminal purposes of thatenterprise; and (ii) the foreseeability of the possible commission by other members of thegroup of offenses that do not constitute the object of the common criminal purpose. 370

Prosecutor v. Tadić, ICTY Appeals Chamber, IT-94-1-A, Judgment, ¶220 (Jul. 15, 1999) (“With regard to thethird category of cases, it is appropriate to apply the notion of ‘common purpose’ only where the following
requirements concerning mens rea are fulfilled: (i) the intention to take part in a joint criminal enterprise and tofurther – individually and jointly – the criminal purposes of that enterprise; and (ii) the foreseeability of the possible
commission by other members of the group of offences that do not constitute the object of the common criminal
purpose. Hence, the participants must have had in mind the intent, for instance, to ill-treat prisoners of war (even if
such a plan arose extemporaneously) and one or some members of the group must have actually killed them. In
order for responsibility for the deaths to be imputable to the others, however, everyone in the group must have beenable to predict this result. It should be noted that more than negligence is required. What is required is a state ofmind in which a person, although he did not intend to bring about a certain result, was aware that the actions of thegroup were most likely to lead to that result but nevertheless willingly took that risk. In other words, the so-called
dolus eventualis is required (also called ‘advertent recklessness’ in some national legal systems).”). Cf. Pinkerton v.
United States, 328 U.S. 640, 647 (1946) (“A scheme to use the mails to defraud, which is joined in by more than one
person, is a conspiracy. Yet all members are responsible, though only one did the mailing. The governing principle
is the same when the substantive offense is committed by one of the conspirators in furtherance of the unlawfulproject. The criminal intent to do the act is established by the formation of the conspiracy. Each conspirator
instigated the commission of the crime. The unlawful agreement contemplated precisely what was done. It wasformed for the purpose. The act done was in execution of the enterprise. The rule which holds responsible one who
counsels, procures, or commands another to commit a crime is founded on the same principle. That principle isrecognized in the law of conspiracy when the overt act of one partner in crime is attributable to all.”).
370

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XIX Documentary Appendix – Notes on Treaties and Other Relevant Documents
Chapter Contents
19.1 Introduction
19.2 Lists of Treaties and Other Documents
19.3 Lieber Code19.4 1856 Paris Declaration Respecting Maritime Law
19.5 1864 GWS
19.6 1868 St. Petersburg Declaration
19.7 1899 and 1907 Hague Declarations on Weapons
19.8 1899 Hague II and 1907 Hague IV Conventions and Annexed Regulations
Regarding Land Warfare
19.9 1907 Hague X
19.10 1922 Washington Treaty on Submarines and Noxious Gases
19.11 1923 Hague Air and Radio Rules
19.12 1925 Geneva Gas and Bacteriological Protocol
19.13 1929 Geneva Conventions
19.14 1930 London Treaty for the Limitation and Reduction of Naval Armamentand 1936 London Protocol
19.15 1935 Roerich Pact
19.16 1949 Geneva Conventions
19.17 1954 Hague Cultural Property Convention
19.18 Vienna Convention on the Law of Treaties
19.19 Biological Weapons Convention
19.20 1977 Additional Protocols to the 1949 Geneva Conventions
19.21 CCW, CCW Amended Article 1, and CCW Protocols
19.22 Chemical Weapons Convention
19.23 Rome Statute of the International Criminal Court
19.24 1999 U.N. Secretary General’s Bulletin for U.N. Forces
19.25 2005 ICRC Study on Customary International Humanitarian Law
19.26 AP III
19.1 INTRODUCTION
This appendix provides background information about certain treaties and otherdocuments.
This appendix is intended to describe DoD views and practice relating to those
documents as of the date of publication of this manual.
19.2 LISTS OF TREATIES AND OTHER DOCUMENTS
This section lists: (1) law of war treaties to which the United States is a Party; (2) arms
control agreements to which the United States is a Party that are of direct relevance to the law ofwar; (3) examples of treaties signed but not ratified by the United States; (4) examples of treaties

1148

that the United States has neither signed nor ratified; and (5) examples of treaties or documentsof mainly historical value.
The categorization of a treaty as a “law of war” treaty or an “arms control” treaty isintended to help practitioners understand the context in which the treaty was concluded and its
purposes. For example, a law of war treaty generally focuses on restrictions on the use of
weapons during armed conflict, while an arms control treaty generally focuses on restricting
development and acquisition of weapons. 1 Some treaties that are characterized below as law of
war treaties have elements of arms control, and some treaties that are characterized below asarms control treaties have elements of the law of war.
Bold type within this section indicates an abbreviation used in this manual; a full list of
abbreviations is provided at the beginning of the manual. 2
19.2.1 Law of War Treaties to Which the United States Is a Party. Law of war treaties towhich the United States is a Party include:•

Washington Convention Regarding the Rights of Neutrals at Sea of October 31, 1854. 3•

Hague Convention for the Exemption of Hospital Ships, in Time of War, from the
Payment of all Dues and Taxes Imposed for the Benefit of the State of December 21,
1904. 4•

Hague Convention III of October 18, 1907, Relative to the Opening of Hostilities. 5•

Hague Convention IV of October 18, 1907, Respecting the Laws and Customs of War on
Land (Hague IV), and the Annex thereto, entitled Regulations Respecting the Laws andCustoms of War on Land (Hague IV Regulations). 6•

Hague Convention V of October 18, 1907, Respecting the Rights and Duties of Neutral
Powers and Persons in Case of War on Land (Hague V). 7•

Hague Convention VIII of October 18, 1907, Relative to the Laying of Automatic
Submarine Contact Mines (Hague VIII). 8

1

Refer to § 1.6.2 (Arms Control).

2

Refer to List of Abbreviations.

3

Convention with Russia, Jul. 22, 1854, 10 STAT. 1105.

4

Refer to § 7.12.4.3 (Relief From Taxation in Time of War).

5

Convention Relative to the Opening of Hostilities, Oct. 18, 1907, 36 STAT. 2259.

6

Refer to § 19.8.2 (Hague IV).

7

Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, Oct. 18,
1907, 36 STAT. 2310.

8

Refer to § 13.11 (Naval Mines); § 13.12 (Torpedoes).

1149

•

Hague Convention IX of October 18, 1907, Concerning Bombardment by Naval Forcesin Time of War (Hague IX). 9•

Hague Convention XI of October 18, 1907, Relative to Certain Restrictions with Regard
to the Exercise of the Right of Capture in Naval War (Hague XI). 10•

Hague Convention XIII of October 18, 1907, Concerning the Rights and Duties of
Neutral Powers in Naval War (Hague XIII). 11•

1928 Pan American Maritime Neutrality Convention. 12•1930 London Treaty for the Limitation and Reduction of Naval Armament. 13•

Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments ofApril 15, 1935 (Roerich Pact). 14•

Charter of the United Nations (U.N. Charter). 15•

1949 Geneva Conventions, 16 including theo Geneva Convention for the Amelioration of the Condition of the Wounded andSick in Armed Forces in the Field of August 12, 1949 (GWS); 17
o Geneva Convention for the Amelioration of the Condition of Wounded, Sick andShipwrecked Members of Armed Forces at Sea of August 12, 1949 (GWS-Sea); 18
o Geneva Convention Relative to the Treatment of Prisoners of War of August 12,1949 (GPW); 19 ando Geneva Convention Relative to the Protection of Civilian Persons in Time of War

9Convention Concerning Bombardment by Naval Forces in Time of War, Oct. 18, 1907, 36 STAT. 2351.

10

Convention Relative to Certain Restrictions With Regard to the Exercise of the Right of Capture in Naval War,
Oct. 18, 1907, 36 STAT. 2396.
11

Convention Concerning the Rights and Duties of Neutral Powers in Naval War, Oct. 18, 1907, 36 STAT. 2415.

12

Pan American Maritime Neutrality Convention, Feb. 20, 1928, 47 STAT. 1989.

13

Refer to § 19.14 (1930 London Treaty for the Limitation and Reduction of Naval Armament and 1936 London
Protocol).
14

Refer to § 19.15 (1935 Roerich Pact).

15

Refer to § 1.11.2 (U.N. Charter Framework and the U.N. Security Council).

16

Refer to § 19.16 (1949 Geneva Conventions).

17

Refer to § 19.16.2 (GWS).

18

Refer to § 19.16.3 (GWS-Sea).

19

Refer to § 19.16.4 (GPW).

1150

of August 12, 1949 (GC). 20•

Hague Convention for the Protection of Cultural Property in the Event of Armed Conflictof May 14, 1954 (1954 Hague Cultural Property Convention). 21•

Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons
Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects ofOctober 10, 1980, its Protocols I, II, III, IV, and V, its Amended Protocol II, and its
Amended Article 1 (CCW); 22o CCW Amended Article 1; 23
o Protocol on Non-Detectable Fragments (Protocol I). Geneva, October 10, 1980
(CCW Protocol I); 24
o Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps andOther Devices as amended on May 3, 1996 (Protocol II to the 1980 CCW
Convention as amended on May 3, 1996) (CCW Amended Mines Protocol); 25
o Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons(Protocol III). Geneva, October 10, 1980 (CCW Protocol III on Incendiary
Weapons); 26
o Protocol on Blinding Laser Weapons (Protocol IV to the 1980 Convention),
October 13, 1995 (CCW Protocol IV on Blinding Laser Weapons); 27 ando Protocol on Explosives Remnants of War (Protocol V to the 1980 Convention),
November 28, 2004 (CCW Protocol V on Explosive Remnants of War). 28•

Optional Protocol to the Convention on the Rights of the Child on the involvement ofChildren in Armed Conflict, May 25, 2000 (Child Soldiers Protocol). 29•

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Adoption of an Additional Distinctive Emblem (Protocol III), December 8, 2005 (AP20

Refer to § 19.16.5 (GC).

21

Refer to § 19.17 (1954 Hague Cultural Property Convention).

22

Refer to § 19.21 (CCW, CCW Amended Article 1, and CCW Protocols).

23

Refer to § 19.21.1.1 (CCW Amended Scope of Application).

24

Refer to § 19.21.2 (CCW Protocol I).

25

Refer to § 19.21.3 (CCW Amended Mines Protocol).

26

Refer to § 19.21.4 (CCW Protocol III on Incendiary Weapons).

27

Refer to § 19.21.5 (CCW Protocol IV on Blinding Laser Weapons).

28

Refer to § 19.21.6 (CCW Protocol V on Explosive Remnants of War).

29

Refer to § 4.20.5.2 (Child Soldiers Protocol).

1151

III). 30
19.2.2 Arms Control Agreements to Which the United States Is a Party That Are of
Direct Relevance to the Law of War. The United States is a Party to the following treaties that
contain restrictions on the use of weapons during armed conflict:•

Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or
Other Gases, and of Bacteriological Methods of Warfare of June 17, 1925 (1925 Geneva
Gas and Bacteriological Protocol). 31•

Convention on the Prohibition of Development, Production and Stockpiling ofBacteriological (Biological) and Toxin Weapons and on Their Destruction of April 10,1972 (Biological Weapons Convention). 32•

Convention on the Prohibition of Military or Any Other Hostile Use of Environmental
Modification Techniques of May 18, 1977 (ENMOD Convention). 33•

Convention on the Prohibition of the Development, Production, Stockpiling and Use ofChemical Weapons and on Their Destruction of January 13, 1993 (Chemical Weapons
Convention). 34

19.2.3 Examples of Treaties Signed but Not Ratified by the United States. This section is
not comprehensive. It lists examples of treaties that the United States has signed, but not
ratified.
A State that has signed a treaty is obliged to refrain from acts that would defeat the object
and purpose of a treaty, until it shall have made its intention clear not to become a Party to thetreaty. 35•

Procès-Verbal Relating to the Rules of Submarine Warfare set forth in Part IV of the30

Refer to § 19.26 (AP III).

31

Refer to § 19.12 (1925 Geneva Gas and Bacteriological Protocol).

32

Refer to § 19.19 (Biological Weapons Convention).

33

Refer to § 6.10 (Certain Environmental Modification Techniques).

34

Refer to § 19.22 (Chemical Weapons Convention).

35

Consider VCLT art. 18 (“A State is obliged to refrain from acts which would defeat the object and purpose of atreaty when: (a) It has signed the treaty or has exchanged instruments constituting the treaty subject to ratification,
acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) It has
expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that suchentry into force is not unduly delayed.”). See also William P. Rogers, Letter of Submittal, Oct. 18, 1971, MESSAGE
FROM THE PRESIDENT TRANSMITTING THE VCLT 2 (“Article 18 sets forth rules governing the obligation of States not
to defeat the object and purpose of a treaty prior to its entry into force. That obligation is limited to (a) States thathave signed a treaty or exchanged ad referendum instruments constituting a treaty, until such time as they makeclear their intention not to become a party, and (b) States that have expressed consent to be bound, pending entry
into force and provided such entry into force is not unduly delayed. This rule is widely recognized in customaryinternational law.”).

1152

Treaty of London of April 22, 1930 (1936 London Protocol). 36•

Vienna Convention on the Law of Treaties (VCLT). 37•

Protocol (I) Additional to the Geneva Conventions of August 12, 1949, and Relating to
the Protection of Victims of International Armed Conflicts of June 8, 1977 (AP I). 38•

Protocol (II) Additional to the Geneva Conventions of August 12, 1949, and Relating to
the Protection of Victims of Non-International Armed Conflicts of June 8, 1977 (APII). 39•

U.N. Convention on the Law of the Sea (LOS Convention). 40•

Rome Statute of the International Criminal Court of July 17, 1998 (Rome Statute). 41

19.2.4 Examples of Treaties That the United States Has Neither Signed Nor Ratified.
This section is not comprehensive. It lists examples of law of war and arms control treaties that
the United States has neither signed nor ratified:•

Declaration respecting maritime law signed by the Plenipotentiaries of Great Britain,
Austria, France, Prussia, Russia, Sardinia, and Turkey, assembled in Congress at Paris,
April 16, 1856. 42•

Hague Declaration on Expanding Bullets of July 29, 1899. 43•

Hague Convention VI Relating to the Status of Enemy Merchant Ships at the Outbreak of
Hostilities of October 18, 1907.

•

Hague Convention VII Relating to the Conversion of Merchant Ships into Warships ofOctober 18, 1907.

•

First Protocol to the Hague Convention of 1954 for the Protection of Cultural Property inthe Event of Armed Conflict of May 14, 1954.

•

Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer

36

Refer to § 19.14 (1930 London Treaty for the Limitation and Reduction of Naval Armament and 1936 London
Protocol).
37

Refer to § 19.18 (Vienna Convention on the Law of Treaties).

38

Refer to § 19.20.1 (AP I).

39

Refer to § 19.20.2 (AP II).

40

Refer to § 13.1.2 (The United States and the LOS Convention).

41

Refer to § 19.23 (Rome Statute of the International Criminal Court).

42

Refer to § 19.4 (1856 Paris Declaration Respecting Maritime Law).

43

Refer to § 19.7.1 (1899 Declaration on Expanding Bullets).

1153

of Anti-Personnel Mines and on Their Destruction of September 18, 1997. 44•

Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property
in the Event of Armed Conflict of March 26, 1999.

•

Convention on Cluster Munitions of May 30, 2008. 45

19.2.5 Examples of Treaties or Documents of Mainly Historical Value. This section is
not comprehensive. It lists examples of treaties and documents that are regarded as having
mainly historical value:•

General Order No. 100, Instructions for the Government of Armies of the United Statesin the Field, 1863 (Lieber Code). 46•

Geneva Convention for the Amelioration of the Wounded in Armies in the Field ofAugust 22, 1864 (1864 GWS). 47•

St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles
under 400 Grams Weight of December 11, 1868 (1868 St. Petersburg Declaration). 48•

Hague Declaration (IV, 1) to Prohibit for the Term of Five Years the Launching ofProjectiles and Explosives from Balloons, and Other Methods of a Similar Nature of July29, 1899. 49•

Hague Declaration on Asphyxiating Gases of July 29, 1899. 50•

Hague Convention II with Respect to the Laws and Customs of War on Land, with
Annex of Regulations of July 29, 1899 (1899 Hague II). 51•

Hague Convention X for the Adaptation to Maritime Warfare of the Principles of the
Geneva Convention of October 18, 1907 (Hague X). 52•

Hague Declaration XIV Prohibiting the Discharge of Projectiles and Explosives from

44

Refer to § 6.12.14 (Ottawa Convention on Anti-Personnel Landmines).

45

Refer to § 6.13.4 (Convention on Cluster Munitions).

46

Refer to § 19.3 (Lieber Code).

47

Refer to § 19.5 (1864 GWS).

48

Refer to § 19.6 (1868 St. Petersburg Declaration).

49

Refer to § 19.7.3 (1899 and 1907 Declarations on the Discharge of Projectiles and Explosives From Balloons).

50

Refer to § 19.7.2 (1899 Declaration on Asphyxiating Gases).

51

Refer to § 19.8.1 (1899 Hague II).

52

Refer to § 19.9 (1907 Hague X).

1154

Balloons of October 18, 1907. 53•

Washington Treaty Relating to the Use of Submarines and Noxious Gases in Warfare of
February 6, 1922. 54•

General Report of the Commission of Jurists to Consider and Report upon the Revisionof the Rules of Warfare, Feb. 19, 1923 (1923 Hague Air and Radio Rules). 55•

Geneva Convention Amelioration of the Condition of the Wounded and Sick of Armies
in the Field of July 27, 1929 (1929 GWS). 56•

Geneva Convention Relative to the Treatment of Prisoners of War of July 27, 1929 (1929
GPW). 57

19.3 LIEBER CODE
General Order No. 100, Instructions for the Government of Armies of the United Statesin the Field, 1863, issued on April 24, 1863, is often called the “Lieber Code” because it was
prepared by Francis Lieber. 58 It is an early example of the law of war being implemented
through military instructions or regulations. 59
The Lieber Code was the first comprehensive publication on the law of war for U.S.
armed forces and is regarded as an important work of historical significance in the law of war. 60

53

Refer to § 19.7.3 (1899 and 1907 Declarations on the Discharge of Projectiles and Explosives From Balloons).

54

Refer to § 19.10 (1922 Washington Treaty on Submarines and Noxious Gases).

55

Refer to § 19.11 (1923 Hague Air and Radio Rules).

56

Refer to § 19.13.1 (1929 GWS).

57

Refer to § 19.13.2 (1929 GPW).

58

E. D. Townsend, Assistant Adjutant General, General Orders No. 100, Instructions for the Government of Armiesof the United States in the Field, Apr. 24, 1863, reprinted in INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF
THE UNITED STATES IN THE FIELD, 2 (Government Printing Office, 1898) (“The following ‘Instructions for theGovernment of Armies of the United States in the Field,’ prepared by Francis Lieber, L.L.D., and revised by a Boardof Officers, of which Major General E.A. Hitchcock is president, having been approved by the President of theUnited States, he commands that they be published for the information of all concerned.”).
59

Refer to § 18.7 (Instructions, Regulations, and Procedures to Implement and Enforce the Law of War).

60

See, e.g., Kononov v. Latvia, European Court of Human Rights, App. No. 36376/04, ¶63 (May 17, 2010) (“TheLieber Code 1863 is regarded as the first attempt to codify the laws and customs of war. Although only applicableto American forces, it represented a summary of the laws and customs of war existing at the time and was influential
in later codifications.”); Elihu Root, Francis Lieber, 7 AJIL 453, 457 (1913) (“In the Brussels Conference of 1874,
convened at the instance of the Emperor of Russia for the purpose of codifying the laws and customs of war, theRussian delegate, Baron Jomini, as president of the conference, declared that the project of an international
convention then presented had its origin in the rules of President Lincoln. The convention agreed upon at Brussels
was not ratified, but in 1880 the Institute of International Law made the work of the Brussels Conference and thework of Lieber, which so far as it was of general application was incorporated in that convention, the basis of amanual of the laws of war upon land; and finally, in The Hague Conferences of 1899 and 1907, the conventions withrespect to the laws and customs of war on land gave the adherence of the whole civilized world in substance and

1155

The Lieber Code established rules governing martial law, military jurisdiction, thetreatment of spies and deserters, and the treatment of POWs. Many key law of war principles,such as the principle of military necessity, were codified in the Lieber Code. 61 However, parts of
the Lieber Code reflect 19th century understandings of the law of war that have been modified
by treaties that the United States has ratified or by subsequent customary international law. For
example, the Lieber Code permitted the denial of quarter in certain circumstances. 62 However,denying quarter in those circumstances is no longer acceptable. 63
The Lieber Code was prepared during the Civil War. The Confederate forces agreed withsome provisions of the Lieber Code, but disagreed with others. 64
The Lieber Code reflected rules for “regular war” or what today would be classified asinternational armed conflict. Such rules were applied to the Confederate forces for humanitarianreasons, even though the United States did not recognize the Confederacy as a legitimate
government or State. 65 In this way, the Lieber Code is an example of the application of thedoctrine of recognition of belligerency. 66
19.4 1856 PARIS DECLARATION RESPECTING MARITIME LAW
The 1856 Paris Declaration respecting Maritime Law is an early multilateral law of war
treaty that was intended to be open to accession by all States, including States that did notparticipate in its negotiation. 67 This treaty illustrates how law of war treaties may be writtenwith a view towards being able to be accepted and applied by all States.

effect to those international rules which President Lincoln made binding upon the American armies fifty years
ago.”).
61

Refer to § 2.2 (Military Necessity).

62

LIEBER CODE art. 61 (“All troops of the enemy known or discovered to give no quarter in general, or to any
portion of the army, receive none.”).

63

Refer to § 5.4.7 (Prohibition Against Declaring That No Quarter Be Given).

64

James A. Seddon, Letter to Robert Ould, Jun. 24, 1863, reprinted in FRED C. AINSWORTH & JOSEPH W. KIRKLEY,
VI THE WAR OF THE REBELLION: A COMPILATION OF THE OFFICIAL RECORDS OF THE UNION AND CONFEDERATEARMIES, SERIES II, 41 (1899) (“Order No. 100 is a confused, unassorted, and undiscriminating compilation from theopinion of the publicists of the last two centuries, some of which are obsolete, others repudiated; and a militarycommander under this code may pursue a line of conduct in accordance with principles of justice, faith, and honor,
or he may justify conduct correspondent with the warfare of the barbarous hordes who overran the Roman Empire,or who, in the Middle Ages, devastated the continent of Asia and menaced the civilization of Europe.”).
65

Refer to § 17.2.3 (Application of Humanitarian Rules and the Legal Status of the Parties to the Conflict).

66

Refer to § 3.3.3.2 (Assertion of War Powers by a State Engaged in Hostilities Against a Non-State Armed Group).

67

Declaration respecting maritime law signed by the Plenipotentiaries of Great Britain, Austria, France, Prussia,
Russia, Sardinia, and Turkey, assembled in Congress at Paris, Apr. 16, 1856, reprinted in 1 AJIL SUPPLEMENT:OFFICIAL DOCUMENTS 89 (1907) (“The Governments of the undersigned Plenipotentiaries engage to bring thepresent Declaration to the knowledge of the states which have not taken part in the Congress of Paris, and to invite
them to accede to it. Convinced that the maxims which they now proclaim cannot but be received with gratitude by
the whole world, the undersigned Plenipotentiaries doubt not that the efforts of their governments to obtain thegeneral adoption thereof will be crowned with full success.”).

1156

The United States is not a Party to the 1856 Paris Declaration. The 1856 Paris
Declaration’s provision that blockades must be effective in order to be binding reflects
customary international law. 68
19.5 1864 GWS
The Geneva Convention for the Amelioration of the Wounded in Armies in the Field ofAugust 22, 1864 (1864 GWS) was one of the earliest multilateral law of war treaties. 69
The 1864 GWS provided for the use of the red cross as a distinctive emblem to help
identify medical personnel. 70 It also provided for wounded and sick combatants to be collected
and cared for regardless of the nation of their armed forces. 71
The United States acceded to the 1864 GWS on March 1, 1882. 72 The 1864 GWS was
replaced by the GWS in relations between the Parties to the GWS. 73
19.6 1868 ST. PETERSBURG DECLARATIONThe Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Weighing
Under 400 Grams Weight (1868 St. Petersburg Declaration) was promulgated by an international
conference held in St. Petersburg, Russia on December 11, 1868. The 1868 St. Petersburg
Declaration prohibits Parties from, “in case of war among themselves, the employment, by theirmilitary or naval forces, of any projectile of less weight than four hundred grammes, which is
explosive, or is charged with fulminating or inflammable substances.” 74
The United States is not a Party to the 1868 St. Petersburg Declaration.
68

Refer to § 13.10.2.3 (Effectiveness of the Blockade).

69

Convention for the Amelioration of the Wounded in Armies in the Field, Aug. 22, 1864, 22 STAT. 940.

70

Refer to § 7.15.1.1 (Red Cross).

71

Refer to § 7.5.2.2 (Affirmative Obligation to Provide Adequate Care).

72

Chester A. Arthur, Proclamation Regarding the 1864 GWS, Jul. 26, 1882, 22 STAT. 940, 950-51 (“And whereas
the President of the United States of America, by and with the advice and consent of the Senate, did, on the first dayof March, one thousand eight hundred and eighty-two, declare that the United States accede to the said Conventionof the 22d of August, 1864, and also accede to the said Convention of October 20, 1868; And whereas on the ninth
day of June, one thousand eight hundred and eighty-two, the Federal Council of the Swiss Confederation, in virtueof the final provision of a certain minute of the exchange of the ratifications of the said Convention at Berne,
December 22, 1864, did, by a formal declaration, accept the said adhesion of the United States of America, as wellin the name of the Swiss Confederation as in that of the other contracting States; And whereas, furthermore, thegovernment of the Swiss Confederation has informed the Government of the United States that the exchange of theratifications of the aforesaid additional articles of 20th October, 1868, to which the United States of America have inlike manner adhered as aforesaid, has not yet taken place between the contracting parties, and that these articles
cannot be regarded as a treaty in full force and effect:”).
73

Refer to § 19.16.2.1 (Relationship Between the GWS and Earlier Conventions).

74

The Declaration of St. Petersburg, 1868, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 95, 96 (1907)(“The contracting parties engage, mutually, to renounce, in case of war among themselves, the employment, by theirmilitary or naval forces, of any projectile of less weight than four hundred grammes, which is explosive, or ischarged with fulminating or inflammable substances.”).

1157

The language in the Preamble of the 1868 St. Petersburg Declaration that notes that the“employment of arms which uselessly aggravate the sufferings of disabled men” would “becontrary to the laws of humanity” is an early statement of the prohibition against weapons
calculated to cause unnecessary suffering, which is a principle that is found in treaties to which
the United States is a Party and in customary international law. 75
The prohibition in the Declaration against “any projectile of less weight than four
hundred grammes, which is explosive, or is charged with fulminating or inflammable
substances” does not reflect customary international law. 76 For example, for many decades
without legal controversy, States have used, and continue to use, tracer ammunition, grenades,
explosive bullets, or other projectiles of less weight than four hundred grams with a burning or
explosive capability. 77
19.7 1899 AND 1907 HAGUE DECLARATIONS ON WEAPONS
19.7.1 1899 Declaration on Expanding Bullets. The 1899 Declaration on Expanding
Bullets prohibits Parties from using “bullets which expand or flatten easily in the human body,such as bullets with a hard envelope which does not entirely cover the core or is pierced withincisions.” 78 The Declaration only creates obligations for Parties to the Declaration ininternational armed conflicts in which all the parties to the conflict are also Parties to the
Declaration. 79
The United States is not a Party to the 1899 Declaration on Expanding Bullets and does
not regard the 1899 Declaration on Expanding Bullets as customary international law applicable
75

Refer to § 6.6 (Weapons Calculated to Cause Superfluous Injury).

76

U.S. RESPONSE TO ICRC CIHL STUDY 524 (“Since the St. Petersburg Declaration, there has been considerable
State practice involving the anti-personnel use of exploding bullets, despite the ICRC’s statement that governments
have ‘adhered’ to the Declaration. Two participants in the ICRC-hosted 1974 Lucerne Meeting of Experts on
certain weapons conventional weapons concluded: ‘At present it is widely held that in view of the development inweapons technology and state practice the St. Petersburg Declaration cannot be interpreted literally, or in any casethat it has not as such become declaratory of customary international law.... [T]he prohibition contained in it serves
to illustrate the principle prohibiting the causing of unnecessary suffering, at least as it was contemplated in 1868.’
U.S. legal reviews have detailed State practice contrary to the ICRC’s statement and consistent with the conclusion
contained in the above quotation.”) (amendments to internal quote shown in U.S. Response to ICRC CIHL Study).
77

Consider Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General
Report, Part II: Rules of Aërial Warfare, art. 18, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIALDOCUMENTS 12, 21 (1938) (“The use of tracer, incendiary or explosive projectiles by or against an aircraft is notprohibited. This provision applies equally to states which are parties to the Declaration of St. Petersburg, 1868, andto those which are not.”). Refer to § 6.5.4.3 (Exploding Bullets).
78

Declaration to Abstain From the Use of Bullets Which Expand or Flatten Easily in the Human Body, Jul. 29,
1899, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 155, 155-56 (1907) (“The Contracting Parties agree
to abstain from the use of bullets which expand or flatten easily in the human body, such as bullets with a hardenvelope which does not entirely cover the core, or is pierced with incisions.”).
79

Declaration to Abstain From the Use of Bullets Which Expand or Flatten Easily in the Human Body, Jul. 29,
1899, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 155, 156 (1907) (“The present Declaration is onlybinding for the Contracting Powers in the case of a war between two or more of them. It shall cease to be binding
from the time when, in a war between the Contracting Powers, one of the belligerents is joined by a non-Contracting
Power.”).

1158

in either international or non-international armed conflicts. 80
19.7.2 1899 Declaration on Asphyxiating Gases. The 1899 Declaration on Asphyxiating
Gases was concluded at The Hague on July 29, 1899. 81 This 1899 Declaration prohibits the useof projectiles the object of which is the diffusion of asphyxiating or deleterious gases. 82
The United States did not ratify this declaration.
This declaration was followed by the 1922 Washington Treaty on Submarines andNoxious Gases, and the 1925 Geneva Gas and Bacteriological Protocol. 83 The United States is a
Party to the 1925 Geneva Gas and Bacteriological Protocol and applies the broader prohibition in
it on the use of asphyxiating, poisonous, or other gases, and all analogous liquids, materials, or
devices. 84
19.7.3 1899 and 1907 Declarations on the Discharge of Projectiles and Explosives From
Balloons. In the 1899 Hague (IV, 1), Parties agreed to prohibit, for a term of five years, thelaunching of projectiles and explosives from balloons, or by other new methods of similar
nature. 85 The United States deposited its instrument of ratification to the 1899 Hague
Declaration (IV, 1) on September 4, 1900. 86
The 1907 Hague Declaration (XIV) Prohibiting the Discharge of Projectiles andExplosives from Balloons sought to renew the expired 1899 Hague Declaration (IV, 1). 87 The
80

Refer to § 6.5.4.4 (Expanding Bullets).

81

Declaration to Abstain From the Use of Projectiles the Object of Which Is the Diffusion of Asphyxiating orDeleterious Gases, Jul. 29, 1899, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 157, 158 (1907).
82

Declaration to Abstain From the Use of Projectiles the Object of Which Is the Diffusion of Asphyxiating orDeleterious Gases, Jul. 29, 1899, reprinted in 1 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 157 (1907) (“TheContracting Powers agree to abstain from the use of projectiles the object of which is the diffusion of asphyxiating
or deleterious gases.”).
83

Refer to § 19.10 (1922 Washington Treaty on Submarines and Noxious Gases); § 19.12 (1925 Geneva Gas andBacteriological Protocol).
84

Refer to § 6.8.2 (Asphyxiating, Poisonous, or Other Gases, and All Analogous Liquids, Materials, or Devices).

85
Declaration Prohibiting for a Term of Five Years the Launching of Projectiles or Explosives from Balloons, or By
Any Other New Methods of Similar Nature, Jul. 29, 1899, 32 STAT. 1839 (“The Contracting Powers agree toprohibit, for a term of five years, the launching of projectiles and explosives from balloons, or by other new methodsof similar nature.”).
86

Theodore Roosevelt, Proclamation Regarding the 1899 Declaration Prohibiting the Launching of Projectiles or
Explosives from Balloons, Nov. 1, 1901, 32 STAT. 1839, 1842 (“And Whereas, the said Declaration was duly ratified
by the Government of the United States of America, by and with the advice and consent of the Senate thereof, andby the Governments of the other Powers aforesaid, with the exception of those of China and Turkey; And Whereas,in pursuance of a stipulation of the said Declaration, the ratifications thereof were deposited at the Hague on the 4th
day of September, 1900, by the Plenipotentiaries of the Governments of the United States of America, AustriaHungary, Belgium, Denmark, Spain, France, Italy, the Netherlands, Persia, Portugal, Roumania, Russia, Siam,
Sweden and Norway, and Bulgaria … .”).
87

Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons, Oct. 18, 1907, 36 STAT.
2439 (“The Undersigned, Plenipotentiaries of the Powers invited to the Second International Peace Conference at
The Hague, duly authorized to that effect by their Governments, inspired by the sentiments which found expression

1159

United States deposited its instrument of ratification to the 1907 Hague Declaration (XIV) on
November 27, 1909. 88 This treaty was intended to have effect until the end of the Third Hague
Peace Conference. 89 The Third Hague Peace Conference never met due to the outbreak ofWorld War I. 90 The application of the 1907 Hague Declaration (XIV) is limited, inter alia, due
to its general participation clause providing that it only applies if all the parties to the conflict arealso Parties to the Declaration. 91 During World War II, the War Department took the position
that the 1907 Hague Declaration (XIV) is not binding and will not be observed. 92
19.8 1899 HAGUE II AND 1907 HAGUE IV CONVENTIONS AND ANNEXED REGULATIONSREGARDING LAND WARFARE
19.8.1 1899 Hague II. The Hague Convention II with Respect to the Laws and Customsof War on Land of July 29, 1899 (1899 Hague II), with its annexed Regulations, was an early
multilateral law of war treaty that contains provisions that were incorporated into later law of
war treaties.
Article 1 of the 1899 Hague II Regulations addressed the criteria for militia and volunteer
corps to qualify as lawful belligerents and for their members to be entitled to POW status if
captured; these criteria are repeated in Article 4 of the GPW. 93 In addition, Articles 4-20 of the1899 Hague II Regulations provide basic rules for the care and protection of POWs.
The United States deposited its instrument of ratification to the 1899 Hague II on April 5,in the Declaration of St. Petersburg of the 29th November (11th December), 1868, and being desirous of renewing
the declaration of The Hague of the 29th July, 1899, which was now expired,”).
88

William H. Taft, Proclamation Regarding the 1907 Declaration Prohibiting the Discharge of Projectiles andExplosives from Balloons, Feb. 28, 1910, 36 STAT. 2439, 2442-43 (“And whereas the said Declaration has been duly
ratified by the Government of the United States of America, by and with the advice and consent of the Senate
thereof, and by the Governments of China, Great Britain, the Netherlands, Bolivia, and Salvador, and theratifications of the said Governments were, as provided for by the said Declaration, deposited by their respective
plenipotentiaries with the Netherlands Government on November 27, 1909.”).
89

Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons, Oct. 18, 1907, 36 STAT.
2439 (“The Contracting Powers agree to prohibit, for a period extending to the close of the Third Peace Conference,the discharge of projectiles and explosives from balloons or by other new methods of a similar nature.”).
90

SCHINDLER & TOMAN, THE LAWS OF ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND
OTHER DOCUMENTS 309 (2004) (“The Declaration of 1907 was to remain in force until the projected Third Peace
Conference. This Conference never having met, the Declaration of 1907 is still formally in force today.”).
91

Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons, Oct. 18, 1907, 36 STAT.
2439, 2440 (“The present Declaration is only binding on the Contracting Powers in a case of war between two or
more of them. It shall cease to be binding from the time when, in a war between the Contracting Powers, one of thebelligerents is joined by a non-Contracting Power.”).
92

WAR DEPARTMENT CIRCULAR NO. 136, § 1 (May 7, 1942) (“The Hague Declaration Number XIV, October 18,
1907, prohibiting the discharge of projectiles and explosives from balloons (H.D. XIV), is not binding and will not
be observed.”).

93

Refer to § 4.6.1 (GPW 4A(2) Conditions in General).

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1902. 94
The 1899 Hague II was followed by Hague IV, which replaces the 1899 Hague II as
between Parties to Hague IV. 95 Not all the States that ratified the 1899 Hague II have also
ratified Hague IV. 96
19.8.2 Hague IV. States sought to expand upon and clarify provisions of 1899 Hague II
and the 1899 Hague II Regulations through the Hague Convention IV Respecting the Laws andCustoms of War on Land of October 18, 1907 (Hague IV), and annexed Regulations (Hague IV
Regulations). 97
The United States deposited its instrument of ratification to Hague IV on November 27,
1909. 98
19.8.2.1 Hague IV and Customary International Law. Provisions of Hague IV
and Hague IV Regulations have been found to reflect customary international law. 99

94

Theodore Roosevelt, Proclamation Regarding the 1899 Hague II, Apr. 11, 1902, 32 STAT. 1803, 1825 (“Andwhereas the said Convention was duly ratified by the Government of the United States of America, by and with theadvice and consent of the Senate thereof, and by the Governments of the other Powers aforesaid with the exceptionof Sweden and Norway and Turkey; And whereas, in pursuance of the stipulations of Article III of the said
Convention the ratifications of the said Convention were deposited at the Hague … on the 5th Day of April, 1902,
by the Plenipotentiary of the Government of the United States of America:”).

95

Refer to § 19.8.2.2 (Relationship Between the 1907 Hague IV and the 1899 Hague II).

96

ADAM ROBERTS & RICHARD GUELFF, DOCUMENTS ON THE LAWS OF WAR 68-70 (3rd ed., 2000) (“[The 1907
Hague Convention] was intended to replace 1899 Hague Convention II as between states parties to both agreements.
However, of the forty-six states which had become parties to the 1899 Convention, eighteen did not become parties
to the 1907 Convention … . They or their successor states … remained formally bound by the 1899 Convention.”).
97

Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 STAT. 2277, 2279 (TheContracting Parties “[h]ave deemed it necessary to complete and explain in certain particulars the work of the First
Peace Conference, which, following on the Brussels Conference of 1874, and inspired by the ideas dictated by awise and generous forethought, adopted provisions intended to define and govern the usages of war on land.”).
98

William H. Taft, Proclamation Regarding the Hague IV, Feb. 28, 1907, 36 STAT. 2277, 2309 (“And whereas thesaid Convention has been duly ratified by the Government of the United States of America, by and with the advice
and consent of the Senate thereof, and by the Governments of Austria-Hungary, Bolivia, Denmark, Germany, GreatBritain, Mexico, the Netherlands, Russia, Salvador, and Sweden, and the ratifications of the said Governments were,
under the provisions of Article 5 of the said Convention, deposited by their respective plenipotentiaries with the
Netherlands Government on November 27, 1909;”).
99

See, e.g., United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE
IMT 253-54 (concluding that “by 1939 these rules laid down in [Hague IV] were recognized by all civilized nations,and were regarded as being declaratory of the laws and customs of war”); United States v. Krupp et al., IX TRIALSOF WAR CRIMINALS BEFORE THE NMT 1340 (concurring in judgment “that the Hague Convention No. IV of 1907 towhich Germany was a party had, by 1939, become customary law and was, therefore, binding on Germany not only
as treaty law but also as customary law.”); United States v. von Leeb, et al. (The High Command Case), XI TRIALSOF WAR CRIMINALS BEFORE THE NMT 535-38 (concluding that provisions of Hague IV Reg. and 1929 GPW
reflected customary international law relating to the treatment of prisoners of war); United States, et al. v. Araki, etal., Majority Judgment, International Military Tribunal for the Far East, 48,491, reprinted in NEIL BOISTER &ROBERT CRYER, DOCUMENTS ON THE TOKYO INTERNATIONAL MILITARY TRIBUNAL: CHARTER, INDICTMENT AND
JUDGMENTS 102 (2008) (explaining that although certain treaties, such as Hague IV and Hague V, might not be1161

For example, Article 42 of the Hague IV Regulations, which provides a standard forwhen the law of belligerent occupation applies, is regarded as customary international law. 100
19.8.2.2 Relationship Between the 1907 Hague IV and the 1899 Hague II. The
Hague IV, duly ratified, shall as between its Parties be substituted for the 1899 Hague II. The
1899 Hague II remains in force as between its Parties that do not also ratify Hague IV. 101
19.8.3 Martens Clause. The Preamble to the 1899 Hague II contains a clause known as
the Martens Clause because of its association with a delegate to the Hague Peace Conference,
F.F. de Martens: 102
Until a more complete code of the laws of war is issued, the High Contracting
Parties think it right to declare that in cases not included in the Regulations
adopted by them, populations and belligerents remain under the protection andempire of the principles of international law, as they result from the usages
established between civilized nations, from the laws of humanity, and therequirements of the public conscience. 103
A similar formulation was included in subsequent treaties, such as the Hague IV, the 1949
Geneva Conventions, and the CCW. 104
applicable by their terms, “the Convention remains as good evidence of the customary law of nations, to beconsidered by the Tribunal along with all other available evidence in determining the customary law to be applied inany given situation.”).
100

Refer to § 11.2.2 (Standard for Determining When Territory Is Considered Occupied).

101

HAGUE IV art. 4 (“The present Convention, duly ratified, shall as between the Contracting Powers, be substituted
for the Convention of the 29th July, 1899, respecting the Laws and Customs of War on Land. The Convention of1899 remains in force as between the Powers which signed it, and which do not also ratify the present
Convention.”).
102

Theodor Meron, The Martens Clause, Principles of Humanity, and Dictates of Public Conscience, 94 AJIL 78,
79 (2000) (“Proposed by the Russian delegate to the Hague Peace Conference, the eminent jurist F.F. de Martens,
the clause has ancient antecedents rooted in natural law and chivalry.”).
103

1899 HAGUE II preamble (“Until a more complete code of the laws of war is issued, the High Contracting Parties
think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents
remain under the protection and empire of the principles of international law, as they result from the usages
established between civilized nations, from the laws of humanity, and the requirements of the public conscience”).

104

See, e.g., HAGUE IV preamble (“Until a more complete code of the laws of war has been issued, the HighContracting Parties deem it expedient to declare that in cases not included in the Regulations adopted by them, theinhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as
they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the
public conscience.”); GWS art. 63 (providing that denunciation of the Convention “shall in no way impair the
obligations which Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations,as they result from the usages established among civilized peoples, from the laws of humanity and the dictates ofpublic conscience.”); GWS-SEA art. 62 (same); GPW art. 142 (same); GC art. 158 (same); CCW preamble (“incases not covered by this Convention and its annexed Protocols or by other international agreements, the civilian
population and the combatants shall at all times remain under the protection and authority of the principles ofinternational law derived from established custom, from the principles of humanity and from the dictates of public
conscience,”). Consider AP I art. 1(2) (“In cases not covered by this Protocol or by other international agreements,
civilians and combatants remain under the protection and authority of the principles of international law derived

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The Martens Clause was a compromise following difficult and unresolved debates at the1899 Hague Peace Conference about the status of resistance fighters in occupied territory. 105
However, the language of the clause is not limited to that specific context, and the Martens
Clause has been cited in many other contexts. 106
The Martens clause reflects the idea that when no specific rule applies, the principles ofthe law of war form the general guide for conduct during war. 107
19.9 1907 HAGUE X
On November 27, 1909, the United States deposited its instrument of ratification to the1907 Hague Convention (X) for the Adaption to Maritime Warfare of the Principles of the
Geneva Convention of October 18, 1907. 108
This treaty was followed by the GWS-Sea, which replaced it in relations between Parties
to the GWS-Sea. 109

from established custom, from the principles of humanity and from the dictates of public conscience.”); AP II
preamble (“Recalling that, in cases not covered by the law in force, the human person remains under the protectionof the principles of humanity and the dictates of the public conscience,”).
105

See ADAM ROBERTS & RICHARD GUELFF, DOCUMENTS ON THE LAWS OF WAR 9 (3rd ed., 2000) (“The wording of
the Martens Clause was agreed at the 1899 Hague Peace Conference for a specific reason: it was a compromise
following difficult and unresolved debates about whether or not the inhabitants of occupied territory had a right ofresistance.”); United States v. Krupp, et al., IX TRIALS OF WAR CRIMINALS BEFORE THE NMT 1340-41 (“It mustalso be pointed out that in the preamble to the Hague Convention No. IV, it is made abundantly clear that in cases
not included in the Regulations, the inhabitants and the belligerents remain under the protection and the rule of theprinciples of the law of nations, as they result from the usages established among civilized peoples, from the laws ofhumanity and dictates of the public conscience. As the records of the Hague Peace Conferences of 1899 which
enacted the Hague Regulations show, great emphasis was placed by the participants on the protection of invaded
territories and the preamble just cited, also known as the “Mertens Clause,” was inserted at the request of theBelgian delegate, Mertens, who was, as were others, not satisfied with the protection specifically guaranteed tobelligerently occupied territory. Hence, not only the wording (which specifically mentions the ‘inhabitants’ before it
mentions the ‘belligerents’) but also the discussions which took place at the time make it clear that it refers
specifically to belligerently occupied country.”).
106

See, e.g., Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 257 (¶78) (“TheCourt would likewise refer, in relation to these principles, to the Martens Clause, which was first included in theHague Convention II with Respect to the Laws and Customs of War on Land of 1899 and which has proved to be aneffective means of addressing the rapid evolution of military technology.”).
107

Refer to § 2.1.2.2 (Law of War Principles as a General Guide).

108

William H. Taft, Proclamation Regarding the Hague X, Feb. 28, 1910, 36 STAT. 2371, 2395 (“And whereas thesaid Convention has been duly ratified by the Government of the United States of America, by and with the advice
and consent of the Senate thereof, and by the Governments of Germany, Austria-Hungary, China, Denmark,Mexico, the Netherlands, Russia, Bolivia, and Salvador, and the ratifications of the said Governments were, under
the provisions of Article 23 of the said Convention, deposited by their respective plenipotentiaries with the
Netherlands Government on November 27, 1909.”).

109

Refer to § 19.16.3.1 (Relationship Between the 1907 Hague X and the GWS-Sea).

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19.10 1922 WASHINGTON TREATY ON SUBMARINES AND NOXIOUS GASESThe United States signed the Treaty Relating to the Use of Submarines and Noxious
Gases in Warfare on February 6, 1922. 110 Article 6 of the treaty provided that the treaty shalltake effect on the deposit of all the ratifications. 111 France did not ratify the treaty, and it did notenter into force. 112
The language of Article 5 of the 1922 Washington Treaty dealing with gas warfare
corresponds to language in the 1925 Protocol for the Prohibition of the Use in War of
Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare signed at
Geneva, June 17, 1925. 113 The 1925 Geneva Gas and Bacteriological Protocol, however, also
prohibits bacteriological methods of warfare. 114
19.11 1923 HAGUE AIR AND RADIO RULES
In 1922, the Conference on the Limitation of Armament at Washington adopted aresolution for the appointment of a Commission representing the United States of America, theBritish Empire, France, Italy, and Japan, and later, the Netherlands, to consider the application of
the existing law of war rules to new agencies of warfare and whether changes should be
adopted. 115 It was agreed that the program of the Commission would be limited to the
preparation of rules relating to aerial warfare, and to rules relating to the use of radio in time ofwar. 116 With John Bassett Moore as a U.S. Delegate and the President of the Commission, the110Treaty in Relation to the Use of Submarines and Noxious Gases in Warfare, Feb. 6, 1922, reprinted in 16 AJIL
SUPPLEMENT: OFFICIAL DOCUMENTS 57, 60 (1922).

111

Treaty in Relation to the Use of Submarines and Noxious Gases in Warfare, art. 6, Feb. 6, 1922, reprinted in 16
AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 57, 59 (1922) (“The present Treaty shall be ratified as soon as possiblein accordance with the constitutional methods of the Signatory Powers and shall take effect on the deposit of all theratifications, which shall take place at Washington.”).
112

SCHINDER & TOMAN, THE LAWS OF ARMED CONFLICTS 877 (1988) (“The Washington Conference of 1922 on the
Limitation of Armaments, in which five of the victorious Powers of World War I took part, adopted the present
Treaty, which due to the failure of France to ratify it, did not enter into force.”).

113

Refer to § 6.8.2 (Asphyxiating, Poisonous, or Other Gases, and All Analogous Liquids, Materials, or Devices).

114

Refer to § 19.12 (1925 Geneva Gas and Bacteriological Protocol).

115

Commission of Jurists to Consider and Report upon the Revision of the Rules of Warfare, General Report, Feb.
19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 1 (1938) (“The Conference on the Limitationof Armament at Washington adopted at its sixth plenary session on the 4th February, 1922, a resolution for theappointment of a Commission representing the United States of America, the British Empire, France, Italy and Japan
to consider the following questions: (a) Do existing rules of international law adequately cover new methods ofattack or defence resulting from the introduction or development, since The Hague Conference of 1907, of newagencies of warfare? (b) If not so, what changes in the existing rules ought to be adopted in consequence thereof asa part of the law of nations? … With the unanimous concurrence of the Powers mentioned in the first of the above
resolutions an invitation to participate in the work of the Commission was extended to and accepted by the
Netherlands Government.”).
116

Commission of Jurists to Consider and Report upon the Revision of the Rules of Warfare, General Report, Feb.
19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 1 (1938) (“It was also agreed that the
programme of the Commission should be limited to the preparation of rules relating to aerial warfare, and to rules
relating to the use of radio in time of war.”).

1164

Commission prepared a set of rules for the control of radio in time of war, as well as a set ofrules for aerial warfare. 117
The 1923 Hague Air Rules were not, however, subsequently adopted as a treaty by theUnited States.
Some provisions in the 1923 Hague Air Rules may reflect customary international law.
For example, the 1923 Hague Air Rules recognize the permissibility of using tracer, incendiary,or explosive projectiles by or against aircraft, including by States that are Parties to the 1868
Declaration of St. Petersburg. 118
Many of the other provisions in the 1923 Hague Air Rules, however, do not reflect
customary international law. For example, the 1923 Hague Air Rules provide that the crew ofmilitary aircraft must be exclusively military. 119 The 1949 Geneva Conventions, however,contemplate that crews of military aircraft may include civilian members. 120 As anotherexample, certain efforts in the 1923 Hague Air Rules to limit the effects of attacks also do notreflect customary international law. 121
19.12 1925 GENEVA GAS AND BACTERIOLOGICAL PROTOCOLThe Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or
Other Gases, and of Bacteriological Methods of Warfare, of June 17, 1925, prohibits the use of
asphyxiating, poisonous, or other gases, and all analogous liquids, materials, or devices, and the117

Commission of Jurists to Consider and Report upon the Revision of the Rules of Warfare, General Report, Feb.
19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 1-2 (1938) (“The United States Government
proposed that the Commission should meet on the 11th December, 1922, at The Hague, and the representatives ofthe six Powers mentioned above assembled on that date in the Palace of Peace. At the second meeting of theCommission the Honorable John Bassett Moore, First Delegate of the United States, was elected President of theCommission. The Commission has prepared a set of rules for the control of radio in time of war, which arecontained in Part I of this report, and a set of rules for aërial warfare, which are contained in Part II of this report.”).
118

Refer to § 6.5.4.3 (Exploding Bullets); § 19.6 (1868 St. Petersburg Declaration).

119

Commission of Jurists to Consider and Report Upon the Revision of the Rules of Warfare, General Report, Part
II: Rules of Aërial Warfare, art. 14, Feb. 19, 1923, reprinted in 32 AJIL SUPPLEMENT: OFFICIAL DOCUMENTS 12,
18 (1938) (“A military aircraft shall be under the command of a person duly commissioned or enlisted in the
military service of the state; the crew must be exclusively military.”).
120

Refer to § 14.3.3.3 (Military Aircraft – Command and Crew).

121

J. Fred Buzhardt, DoD General Counsel, Letter to Senator Edward Kennedy, Sept. 22, 1972, reprinted in 67 AJIL
122, 123 (1973) (“In the application of the laws of war, it is important that there be a general understanding in theworld community as to what shall be legitimate military objectives which may be attacked by air bombardment
under the limitations imposed by treaty or by customary international law. Attempts to limit the effects of attacks in
an unrealistic manner, by definition or otherwise, solely to the essential war making potential of enemy States havenot been successful. For example, such attempts as the 1923 Hague Rules of Air Warfare, proposed by an
International Commission of Jurists, and the 1956 ICRC Draft Rules for the Limitation of the Dangers Incurred by
the Civilian Population in Time of War were not accepted by States and therefore do not reflect the laws of war
either as customary international law or as adopted by treaty.”).

1165

use of bacteriological methods of warfare. 122
This treaty followed the 1899 Declaration on Asphyxiating Gases and the 1922
Washington Treaty on Submarines and Noxious Gases. 123 This treaty also followed widespreaduse of chemical weapons in World War I.
On November 25, 1969, President Nixon announced the intention of the administration toseek Senate advice and consent to ratification of the 1925 Geneva Gas and BacteriologicalProtocol as part of U.S. policies relating to chemical and biological weapons. 124 The UnitedStates deposited its instrument of ratification to the 1925 Geneva Gas and BacteriologicalProtocol on April 10, 1975. 125
The United States took a reservation that the “Protocol shall cease to be binding on thegovernment of the United States with respect to the use in war of asphyxiating, poisonous orother gases, and of all analogous liquids, materials, or devices, in regard to an enemy state if
such state or any of its allies fails to respect the prohibitions laid down in this Protocol.” 126 This
reservation would permit use by the United States of chemical weapons and agents in response,
but would not limit in any way the Protocol’s prohibition with respect to biological weapons. 127
Other States, including France, Belgium, Canada, the USSR (now Russia), and the United
Kingdom issued similar statements upon ratification. 128

122

Refer to § 6.8.2 (Asphyxiating, Poisonous, or Other Gases, and All Analogous Liquids, Materials, or Devices);§ 6.9.1 (Biological Weapons – Prohibition on Use as a Method of Warfare).
123

Refer to § 19.7.2 (1899 Declaration on Asphyxiating Gases); § 19.10 (1922 Washington Treaty on Submarines
and Noxious Gases).
124

Richard Nixon, Statement on Chemical and Biological Defense Policies and Programs, Nov. 25, 1969, 1969
PUBLIC PAPERS OF THE PRESIDENTS 968 (“As to our chemical warfare program, the United States: —Reaffirms its
oft-repeated renunciation of the first use of lethal chemical weapons. –Extends this renunciation to the first use ofincapacitating chemicals. Consonant with these decisions, the administration will submit to the Senate, for its
advice and consent to ratification, the Geneva Protocol of 1925 which prohibits the first use in war of ‘asphyxiating,poisonous or other Gases and of Bacteriological Methods of Warfare.’ The United States has long supported theprinciples and objectives of this Protocol. We take this step toward formal ratification to reinforce our continuing
advocacy of international constraints on the use of these weapons.”).
125

1925 Geneva Gas and Bacteriological Protocol, Apr. 10, 1975, 1541 UNTS 484 (“RATIFICATIONS Instruments
deposited with the Government of France on: 10 April 1975 UNITED STATES OF AMERICA (With effect from
10 April 1975.)”).
126

United States, Statement on Ratification of the 1925 Geneva Gas and Bacteriological Protocol, Apr. 10, 1975,
1541 UNTS 484 (“That the said Protocol shall cease to be binding on the Government of the United States withrespect to the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials, or
devices, in regard to an enemy State if such State or any of its allies fails to respect the prohibitions laid down in the
Protocol.”).
127

William P. Rogers, Letter of Submittal, Aug. 11, 1970, MESSAGE FROM THE PRESIDENT TRANSMITTING THE 1925
GENEVA GAS AND BACTERIOLOGICAL PROTOCOL VI (“This reservation would permit the retaliatory use by theUnited States of chemical weapons and agents, but would not limit in any way the Protocol’s prohibition withrespect to biological weapons.”).
128

France, Statement on Ratification of the 1925 Geneva Gas and Bacteriological Protocol, May 9, 1926, 94 LNTS
67 (“The said Protocol shall ipso facto cease to be binding on the Government of the French Republic in regard toany enemy State whose armed forces or whose Allies fail to respect the prohibitions laid down in the Protocol.”);1166

This treaty was followed by the Chemical Weapons Convention and Biological Weapons
Convention, which, inter alia, place restrictions on the use, development, production, andpossession of weapons addressed by the 1925 Geneva Gas and Bacteriological Protocol. 129
19.13 1929 GENEVA CONVENTIONS
19.13.1 1929 GWS. The United States deposited its instrument of ratification to the 1929
GWS on February 4, 1932. 130
The 1929 GWS was replaced by the GWS in relations between Parties to the GWS. 131
All the Parties to the 1929 GWS have become Parties to the GWS.
19.13.2 1929 GPW. The United States deposited its instrument of ratification to the 1929
GPW on February 4, 1932. 132
The 1929 GPW was replaced by the GPW in relations between Parties to the GPW. 133
All the Parties to the 1929 GPW have become Parties to the GPW.
Provisions of the 1929 GPW were found to reflect customary international law by war
crimes tribunals after World War II. 134 The 1929 GPW may be relevant to understanding
provisions of the 1949 GPW because some provisions of the 1949 GPW were drawn from theBelgium, Statement on Ratification of the 1925 Geneva Gas and Bacteriological Protocol, Dec. 4, 1928, 94 LNTS
67 (“(2) The said Protocol shall ipso facto cease to be binding on the Belgian Government in regard to any enemy
State whose armed forces or whose Allies fail to respect the prohibitions laid down in the Protocol.”); Canada,
Statement on Ratification of the 1925 Geneva Gas and Bacteriological Protocol, May 6, 1930, 94 LNTS 71 (“Thesaid Protocol shall cease to be binding on His Britannic Majesty towards any State at enmity with Him whose armed
forces, or whose allies de jure or in fact fail to respect the prohibitions laid down in the Protocol.”); Union of Soviet
Socialist Republics, Statement on Accession to the 1925 Geneva Gas and Bacteriological Protocol, Apr. 5, 1928, 94
LNTS 71 (“(2) The said Protocol shall cease to be binding on the Government of the Union of Soviet Socialist
Republics in regard to all enemy States whose armed forces or whose Allies de jure or in fact do not respect the
restrictions which are the object of this Protocol.”); British Empire, Statement on Ratification of the 1925 Geneva
Gas and Bacteriological Protocol, Apr. 9, 1930, 94 LNTS 69 (“The said Protocol shall cease to be binding on His
Britannic Majesty towards any Power at enmity with Him whose armed forces, or the armed forces of whose allies,
fail to respect the prohibitions laid down in the Protocol.”).
129

Refer to § 19.22 (Chemical Weapons Convention); § 19.19 (Biological Weapons Convention).

130

Herbert Hoover, Proclamation Regarding the 1929 GPW, Aug. 4, 1932, 47 STAT. 2021, 2073 (“And whereas, thesaid Convention has been duly ratified on the part of the United States of America and the instrument of ratificationof the United States of America was deposited with the Government of Switzerland on February 4, 1932; And
whereas, in accordance with Article 92 thereof, the said Convention became effective in respect of the United Statesof America six months after the deposit of its instrument of ratification, namely, on August 4, 1932;”).

131

Refer to § 19.16.2.1 (Relationship Between the GWS and Earlier Conventions).

132

Herbert Hoover, Proclamation Regarding the 1929 GWS, Aug. 4, 1932, 47 STAT. 2074, 2101 (“And whereas, thesaid Convention has been duly ratified on the part of the United States of America and the instrument of ratificationof the United States of America was deposited with the Government of Switzerland on February 4, 1932: And
whereas, in accordance with Article 33 thereof, the said Convention became effective in respect of the United Statesof America six months after the deposit of its instrument of ratification, namely, on August 4, 1932;”).
133

Refer to § 19.16.4.1 (Relationship Between the GPW and the 1929 GPW).

134

Refer to § 9.1.1 (Brief History of POW Law).

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1929 GPW or reflect an effort to improve upon the 1929 GPW.
19.14 1930 LONDON TREATY FOR THE LIMITATION AND REDUCTION OF NAVAL ARMAMENT AND
1936 LONDON PROTOCOL
Article 22 of the 1930 London Treaty for the Limitation and Reduction of Naval
Armament (1930 London Treaty) and the 1936 London Protocol set forth identical rules
regarding submarine warfare, and the obligations of surface warships and submarines withrespect to the sinking of merchant vessels, including the obligation to put merchant vessels’
passengers and crew in a place of safety. 135
The United States deposited its instrument of ratification to the 1930 London Treaty on
October 27, 1930. 136 Although other aspects of the treaty expired on December 31, 1936, Article
22 remains in force. 137 Signatories to the 1930 London Treaty desired that as many States as
possible accept the rules in Article 22; thus, they concluded the 1936 London Protocol with thesame language as that in Article 22 and invited other States to accede to the 1936 London
Protocol. 138 The United States signed the 1936 Protocol on November 6, 1936. 139
19.15 1935 ROERICH PACTThe 1935 Roerich Pact was concluded in Washington on April 15, 1935. 140 It provides
for the respect and protection of “historic monuments, museums, scientific, artistic, educationaland cultural institutions” and their personnel in time of peace as well as in war. 141 Such
135

Refer to § 13.7.1 (General Principle – Same Rules Applicable to Both Submarine and Surface Warships);§ 13.5.2 (Attack of Enemy Merchant Vessels); § 15.15.3 (Destruction of Neutral Prizes).
136

Herbert Hoover, Proclamation Regarding the 1930 Treaty for the Limitation and Reduction of Naval Armament,
Jan. 1, 1931, 46 STAT. 2858, 2885 (“AND WHEREAS the ratification by the United States of America, subject tothe understandings, set forth therein, … deposited at London on the 27th day of October, one thousand nine hundred
and thirty,”).
137

Treaty for the Limitation and Reduction of Naval Armament art. 23, Apr. 22, 1930, 46 STAT. 2858, 2882 (“Thepresent Treaty shall remain in force until the 31st December, 1936, subject to the following exceptions: (1) Part IV
shall remain in force without limit of time; (2) the provisions of Articles 3, 4 and 5, and of Article 11 and Annex II
to Part II so far as they relate to aircraft carriers, shall remain in force for the same period as the Washington
Treaty.”).

138

Procès-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of London of April
22, 1930, preamble, Nov. 6, 1936, 173 LNTS 353, 355 (“And whereas all the signatories of the said Treaty desirethat as great a number of Powers as possible should accept the rules contained in the said Part IV as established rulesof international law; The undersigned, representatives of their respective Governments, bearing in mind the said
Article 22 of the Treaty, hereby request the Government of the United Kingdom of Great Britain and Northern
Ireland forthwith to communicate the said rules, as annexed hereto, to the Governments of all Powers which are notsignatories of the said Treaty, with an invitation to accede thereto definitely and without limit of time.”).
139

Procès-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of London of April
22, 1930, Nov. 6, 1936, 173 LNTS 353, 357 (“Signed in London, the 6th day of November, nineteen hundred andthirty-six. For the Government of the United States of America: Robert Worth BINGHAM.”).
140

Pan American Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments, Apr. 15,
1935, 49 STAT. 3267.
141

ROERICH PACT art. 1 (“The historic monuments, museums, scientific, artistic, educational and cultural institutions
shall be considered as neutral and as such respected and protected by belligerents. The same respect and protection1168

institutions and personnel receive protection as cultural property under the 1954 Hague Cultural
Property or the general protection afforded civilian objects and persons. 142
The United States deposited its instrument of ratification to the 1935 Roerich Pact on July
13, 1935. 143
This treaty was followed by the 1954 Hague Cultural Property Convention. 144 All Parties
to the Roerich Pact are Parties to the 1954 Hague Cultural Property Convention.
The 1954 Hague Cultural Property Convention is supplementary to the Roerich Pact, but
the distinctive emblem of the 1954 Hague Cultural Property Convention is to be used instead ofthe distinguishing flag described in Article III of the 1935 Roerich Pact, in situations where the1954 Hague Cultural Property Convention and the Regulations for its execution provide for theuse of this distinctive emblem. 145
19.16 1949 GENEVA CONVENTIONS
The four 1949 Geneva Conventions were adopted at a Diplomatic Conference at Geneva
on August 12, 1949. More than 193 States have ratified the 1949 Geneva Conventions. 146
The United States signed each of the 1949 Geneva Conventions on August 12, 1949. The
United States deposited its instrument of ratification to each convention on August 2, 1955. 147
The United States has viewed many of the protections embodied in the 1949 Geneva
Conventions as reflecting appropriate U.S. practice in armed conflict regardless of formal treaty

shall be due to the personnel of the institutions mentioned above. The same respect and protection shall be accorded
to the historic monuments, museums, scientific, artistic, educational and cultural institutions in time of peace as wellas in war.”). Refer to § 5.18.1.1 (Definition of Cultural Property – Notes on Terminology).
142

Refer to § 5.18 (Protection of Cultural Property During Hostilities); § 5.5 (Discrimination in Conducting
Attacks).
143

Franklin D. Roosevelt, Proclamation Regarding the Roerich Pact, Oct. 25, 1935, 49 STAT. 3267, 3274 (“ANDWHEREAS the said Treaty has been duly ratified by the United States of America, whose instrument of ratification
was deposited with the Pan American Union on July 13, 1935;”).
144

Refer to § 19.17 (1954 Hague Cultural Property Convention).

145

Refer to § 19.17.1.2 (Relationship Between the 1935 Roerich Pact and the 1954 Hague Cultural Property
Convention).
146

See DEPARTMENT OF STATE, Treaties in Force: A List of Treaties and Other International Agreements of theUnited States in Force on January 1, 2013, 465-66 (2013).
147

213 UNTS 378 (GWS Ratification, “Instrument deposited with the Swiss Federal Council on: 2 August 1955
UNITED STATES OF AMERICA (To take effect on 2 February 1956.)”); 213 UNTS 382 (GWS-Sea Ratification,“Instrument deposited with the Swiss Federal Council on: 2 August 1955 UNITED STATES OF AMERICA (To takeeffect on 2 February 1956.)”); 213 UNTS 383 (GPW Ratification, “Instrument deposited with the Swiss Federal
Council on: 2 August 1955 UNITED STATES OF AMERICA (To take effect on 2 February 1956.)”); 213 UNTS 384(GC Ratification, “Instrument deposited with the Swiss Federal Council on: 2 August 1955 UNITED STATES OF
AMERICA (To take effect on 2 February 1956.)”).

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obligations. 148
The 1949 Geneva Conventions followed earlier multilateral treaties that addressed thesame subjects, including the 1864 GWS, the 1907 Hague X, the 1899 and 1907 Hague
Conventions on the Law of Land Warfare, and the 1929 Geneva Conventions. 149
The Commentaries to the 1949 Geneva Conventions, published by the International
Committee of the Red Cross, under the general editorship of Jean S. Pictet, have often been
helpful in understanding the provisions of the 1949 Geneva Conventions and have often been
cited in this manual. As noted by the International Committee of the Red Cross, however, these
Commentaries are not an official interpretation of the 1949 Geneva Conventions, which only
participant States would be qualified to give. 150
19.16.1 Common Provisions in the 1949 Geneva Conventions. The four 1949 Geneva
Conventions contain a number of common provisions, i.e., provisions that are substantively thesame (if not identical in text) among the conventions.
The four Geneva Conventions have this duplication, in part, because each convention isdesigned to be effective, even if a State only ratifies that particular convention. 151 For example,
the list of persons entitled to receive POW status in Article 4 of the GPW is repeated in the GWS
and GWS-Sea. 152
19.16.1.1 Common Terms in the 1949 Geneva Conventions – Notes on
148

See SENATE EXECUTIVE REPORT 84-9, Geneva Conventions for the Protection of War Victims: Report of theCommittee on Foreign Relations on Executives D, E, F, and G, 82nd Congress, First Session, 32 (Jun. 27, 1955)(“Our Nation has everything to gain and nothing to lose by being a party to the conventions now before the Senate,
and by encouraging their most widespread adoption. As emphasized in this report, the requirements of the fourconventions to a very great degree reflect the actual policies of the United States in World War II. The practices
which they bind nations to follow impose no burden upon us that we would not voluntarily assume in a future
conflict without the injunctions of formal treaty obligations.”).
149

Refer to § 19.5 (1864 GWS); § 19.9 (1907 Hague X); § 19.8 (1899 Hague II and 1907 Hague IV Conventions
and Annexed Regulations Regarding Land Warfare); § 19.13 (1929 Geneva Conventions).
150

See, e.g., GWS COMMENTARY Foreword (“Although published by the International Committee, the Commentary
is the personal work of its authors. The Committee, moreoever, whenever called upon for an opinion on a provisionof an international Convention, always takes care to emphasize that only the participant States are qualified, throughconsultation between themselves, to give an oficial and, as it were, authentic interpretation of an intergovernmental
treaty.”).
151

See, e.g., II-B FINAL RECORD OF THE DIPLOMATIC CONFERENCE OF GENEVA OF 1949 257 (“Mr. NAJAR (Israel): ...
We have a number of Conventions here, with different signatories, which constitute distinct legal instruments. It is
not at all surprising that one more of them should contain Articles of a more or less similar character; but one
Convention is distinguished from another by being a self-contained legal instrument, and by its signatories.”); id. at
283 (“Mr. FILIPPOV (Union of Soviet Socialist Republics): ... In the amendment submitted to us an allusion is madeto Article 20 of the Wounded and Sick Convention. This reference seems to us inadmissible, as the Prisoners of
War Convention is an entirely independent document and the allusions in its Articles to other Conventions, inparticular the Wounded and Sick, might involve difficulties if the Parties to the conflict were not signatories to both
Conventions.”).
152

Refer to § 7.3.2 (Persons Entitled to Protection as Wounded, Sick, or Shipwrecked Under the GWS and GWSSea).

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Terminology. In the 1949 Geneva Conventions, “Power” generally refers to a State. 153
In the 1949 Geneva Conventions, the Detaining Power refers to the State that holds thePOW or internee. 154
In the 1949 Geneva Conventions, the Protecting Power refers to a neutral State that helps
implement the Conventions. 155
19.16.1.2 Common Article 2 of the 1949 Geneva Conventions. Common Article 2of the four 1949 Geneva Conventions declares that the provisions of each convention apply “toall cases of declared war or of any other armed conflict which may arise between two or more of
the High Contracting Parties, even if the state of war is not recognized by one of them.” 156 This
language is used to help explain when the law of war applies. 157
Common Article 2 also provides that each convention “shall also apply to all cases ofpartial or total occupation of the territory of a High Contracting Party, even if the said occupation
meets with no armed resistance.” 158 Common Article 2, thus, helps explain that the law ofbelligerent occupation is applicable, even if the occupying forces are not opposed by force. 159
The 1954 Hague Cultural Property Convention repeats language used in Common Article
2, and the CCW incorporates language from Common Article 2 by reference.
19.16.1.3 Common Article 3 of the 1949 Geneva Conventions. Common Article 3
to the 1949 Geneva Conventions has been described as a “Convention in miniature” that
addresses non-international armed conflict. 160 It was the first provision in a multilateral law of153

Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under the
Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 39 (“Finally, al
Qaeda is not a ‘Power[] in conflict’ that can ‘accept[] and appl[y]’ GC4 within the meaning of article 2(3). See, e.g.,
G.I.A.D. Draper, The Red Cross Conventions 16 (1958) (arguing that ‘in the context of Article 2, para. 3, ‘Powers’
means States capable then and there of becoming Contracting Parties to these Conventions either by ratification or
by accession’); 2B Final Record of the Diplomatic Conference of Geneva of 1949, at 108 (explaining that article
2(3) would impose an ‘obligation to recognize that the Convention be applied to the non-Contracting adverse State,
in so far as the latter accepted and applied the provisions thereof’) (emphasis added) (‘Final Record’); supra note 4,
at 23 (using ‘non-Contracting State’ interchangeably with ‘non-Contracting Power’ and ‘non-Contracting Party’).”).
154

Refer to § 9.1.2.1 (GPW – Notes on Terminology); § 10.1.1.1 (GC – Notes on Terminology).

155

Refer to § 18.15.1.1 (Protecting Power Under the 1949 Geneva Conventions).

156

GWS art. 2 (“In addition to the provisions which shall be implemented in peacetime, the present Convention shallapply to all cases of declared war or of any other armed conflict which may arise between two or more of the HighContracting Parties, even if the state of war is not recognized by one of them.”); GWS-SEA art. 2 (same); GPW art. 2(same); GC art. 2 (same).
157

Refer to § 3.4 (When Jus in Bello Rules Apply).

158

GWS art. 2 (“The Convention shall also apply to all cases of partial or total occupation of the territory of a HighContracting Party, even if the said occupation meets with no armed resistance.”); GWS-SEA art. 2 (same); GPW art.
2 (same); GC art. 2 (same).
159

Refer to § 11.2.2.3 (“Of the Hostile Army” – Belligerent Occupation Applies to Enemy Territory).

160

GPW COMMENTARY 34 (“To borrow the phrase of one of the delegates, Article 3 is like a ‘Convention inminiature’. It applies to non-international conflicts only, and will be the only Article applicable to them until such

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war treaty that addressed humane treatment during non-international armed conflict to gainwidespread ratification by States. 161
Although Common Article 3 only applies by its terms to non-international armed
conflicts, Common Article 3 reflects a minimum yardstick of humane treatment protections that
apply more broadly, including during international armed conflict. 162
19.16.1.4 POW Status and the 1949 Geneva Conventions. Article 4 of the GPW
explains which persons are entitled to receive POW status under the GPW. 163 This provision is
mirrored in the GWS and GWS-Sea, as those conventions are intended to protect persons whoare entitled to POW status under the GPW. 164
The GC excludes from its protection those persons who are entitled to POW status under
the GPW. 165
19.16.1.5 Retained Personnel and the 1949 Geneva Conventions. Retained
personnel are addressed by both the GPW and the GWS. 166
19.16.2 GWS. The GWS is often called the first Geneva Convention. 167 The GWS
addresses the following subjects on land: (1) the protection of the wounded, sick, and dead; (2)the rights, duties, and liabilities of military medical and religious personnel; and (3) the
protection of military medical units, facilities, and transports. 168
19.16.2.1 Relationship Between the GWS and Earlier Conventions. The GWS
replaces the Conventions of August 22, 1864, July 6, 1906, and July 27, 1929, in relations
between the Parties to the GWS. 169
19.16.3 GWS-Sea. The GWS-Sea is often called the second Geneva Convention. 170 The
time as a special agreement between the Parties has brought into force between them all or part of the otherprovisions of the Convention.”).
161

Refer to § 17.2.1.1 (Treaties That Have Provisions That Explicitly Apply to NIAC).

162

Refer to § 8.1.4.1 (Common Article 3 of the 1949 Geneva Conventions).

163

Refer to § 9.3.2 (Persons Entitled to POW Status).

164

Refer to § 7.3.2 (Persons Entitled to Protection as Wounded, Sick, or Shipwrecked Under the GWS and GWSSea).
165

Refer to § 10.3.2.3 (Not Protected by the GWS, GWS-Sea, or the GPW).

166

Refer to § 7.9.1.2 (Medical and Religious Personnel Who May Be Retained).

167

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field
of August 12, 1949, 75 UNTS 31.
168

Refer to § 7.1.1 (Interpretation and Application of Provisions Relating to Medical Issues in the GWS, GWS-Sea,
GPW, and GC).
169

GWS art. 59 (“The present Convention replaces the Conventions of 22 August 1864, 6 July 1906, and 27 July
1929, in relations between the High Contracting Parties.”).
170

Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of
Armed Forces at Sea of August 12, 1949, 75 UNTS 85.

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GWS-Sea addresses the following subjects at sea: (1) the protection of the wounded, sick,shipwrecked, and dead; (2) the rights, duties, and liabilities of military medical and religious
personnel; and (3) the protection of military medical units, facilities, and transports. 171
19.16.3.1 Relationship Between the 1907 Hague X and the GWS-Sea. The GWSSea replaces the Hague X in relations between the Parties to the GWS-Sea. 172
19.16.4 GPW. The GPW is often called the third Geneva Convention. 173 The GPW
addresses the protection of POWs. 174
19.16.4.1 Relationship Between the GPW and the 1929 GPW. The GPW replaces
the 1929 GPW in relations between the Parties to the GPW. 175
19.16.4.2 Relationship Between the GPW and the 1899 Hague II or 1907 Hague
IV. In the relations between States that are bound by the 1899 Hague II or the 1907 Hague IV,
and that are Parties to the GPW, the GPW shall be complementary to Chapter II of theRegulations annexed to the 1899 Hague II or the 1907 Hague IV. 176
19.16.5 GC. The GC is often called the fourth Geneva Convention. 177 The GC addresses
the protection of civilians in the hands of a party a conflict, including civilian internees. 178 The
GC also addresses belligerent occupation.
19.16.5.1 Application of Different Parts of the GC. Different parts of the GC
apply to different situations.
In general, the GC uses the concept of protected person to define the individuals who areentitled to receive its protections. 179 The provisions of Part II of the GC (articles 13-26) are
wider in application; they do not only apply to those persons who are protected persons under the171

Refer to § 7.1.1 (Interpretation and Application of Provisions Relating to Medical Issues in the GWS, GWS-Sea,
GPW, and GC).
172
GWS-SEA art. 58 (“The present Convention replaces the Xth Hague Convention of October 18, 1907, for theadaptation to Maritime Warfare of the principles of the Geneva Convention of 1906, in relations between the HighContracting Parties.”).
173

Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, 75 UNTS 135.

174

Refer to § 9.1.2 (Interpretation and Application of the GPW).

175

GPW art. 134 (“The present Convention replaces the Convention of July 27, 1929, in relations between the HighContracting Parties.”).
176

GPW art. 135 (“In the relations between the Powers which are bound by the Hague Convention respecting theLaws and Customs of War on Land, whether that of July 29, 1899, or that of October 18, 1907, and which areparties to the present Convention, this last Convention shall be complementary to Chapter II of the Regulations
annexed to the above-mentioned Conventions of the Hague.”).
177

Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, 75 UNTS
287.
178

Refer to § 10.1.1 (Interpretation and Application of the GC).

179

Refer to § 10.3 (Protected Person Status).

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GC. 180 These provisions cover the whole of the populations of the countries in conflict. 181
Section I (articles 27-34) of Part III of the GC includes provisions that are common to thehome territories of the parties to the conflict and to occupied territories.
Section II (articles 35-46) of Part III of the GC addresses aliens in the home territory of aparty to the conflict.
Section III (articles 47-78) of Part III of the GC addresses occupied territories.
Section IV (articles 79-135) of Part III of the GC provides regulations for the treatment ofinternees.
19.16.5.2 Relationship Between the GC and the 1899 Hague II and the 1907
Hague IV Conventions. In the relations between States that are bound by the 1899 Hague II, or
the 1907 Hague IV, and that are Parties to the GC, the GC shall be supplementary to Sections II(Articles 22-41 – Hostilities) and III (Articles 42-56 – Military Authority Over the Territory of
the Hostile State) of the Regulations annexed to the 1899 Hague II or the 1907 Hague IV. 182
19.17 1954 HAGUE CULTURAL PROPERTY CONVENTION
The 1954 Hague Cultural Property Convention addresses the protection of culturalproperty during international armed conflict. 183 It addresses personnel who are engaged in duties
related to the protection of cultural property. 184 It also has provisions that apply during
occupation. 185 Some provisions of the 1954 Hague Cultural Property Convention apply to noninternational armed conflict. 186
The 1954 Hague Cultural Property Convention was adopted at a diplomatic conference
on May 14, 1954. 187 The United States deposited its instrument of ratification to the Hague

180

Refer to § 10.3.3 (Categories of Nationals Specifically Excluded From the Definition of Protected Person Under
the GC).
181

GC art. 13 (“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 toalleviate the sufferings caused by war.”).
182

GC art. 154 (“In the relations between the Powers who are bound by The Hague Conventions respecting theLaws and Customs of War on Land, whether that of July 29, 1899, or that of October 18, 1907, and who are parties
to the present Convention, this last Convention shall be supplementary to Sections II and III of the Regulations
annexed to the above mentioned Conventions of The Hague.”).
183

Refer to § 5.18 (Protection of Cultural Property).

184

Refer to § 4.14 (Personnel Engaged in Duties Related to the Protection of Cultural Property).

185

Refer to § 11.19 (Protection of Cultural Property During Occupation).

186

Refer to § 17.2.1.1 (Treaties That Have Provisions That Explicitly Apply to NIAC); § 17.11 (Protection ofCultural Property in NIAC).
187

Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 UNTS
240.

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Cultural Property Convention on March 13, 2009, and stated four understandings. 188
Two Protocols to the 1954 Hague Cultural Property Convention have been adopted. 189
The United States has neither signed nor ratified either one.
19.17.1 Relationship Between the 1954 Hague Cultural Property Convention and Earlier
Treaties.
19.17.1.1 Relationship Between the 1954 Hague Cultural Property Convention
and Certain 1899 and 1907 Hague Conventions. In the relations between States that are boundby the Conventions of The Hague concerning the Laws and Customs of War on Land (IV)
(Hague IV) and Concerning Naval Bombardment in Time of War (Hague IX), whether those of
July 29, 1899, or those of October 18, 1907, and that are Parties to the 1954 Hague Cultural
Property Convention, the 1954 Hague Cultural Property Convention shall be supplementary to
the Hague IX Convention and to the Regulations annexed to the Hague IV Convention. 190
19.17.1.2 Relationship Between the 1935 Roerich Pact and the 1954 Hague
Cultural Property Convention. In the relations between States that are bound by the 1935
Roerich Pact and that are Parties to the 1954 Hague Cultural Property Convention, the 1954
Hague Cultural Property Convention shall be supplementary to the Roerich Pact and shallsubstitute for the distinguishing flag described in Article III of the Roerich Pact the emblem
defined in Article 16 of the 1954 Hague Cultural Property Convention—in cases in which the1954 Hague Cultural Property Convention and the Regulations for its execution provide for theuse of this distinctive emblem. 191
19.18 VIENNA CONVENTION ON THE LAW OF TREATIESThe Vienna Convention on the Law of Treaties (VCLT) was adopted on May 23, 1969,
by the U.N. Conference on the Law of Treaties.
188

2575 UNTS 7 (“RATIFICATION (WITH DECLARATIONS) United States of America Deposit of instrument with the
Director-General of the United Nations Educational, Scientific and Cultural Organization: 13 March 2009”).
189

Protocol for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 UNTS 358;
Second Protocol to The Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed
Conflict, Mar. 26, 1999, 2253 UNTS 172.
190

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 36(1) (“In the relations between Powers which are boundby the Conventions of The Hague concerning the Laws and Customs of War on Land (IV) and concerning Naval
Bombardment in Time of War (IX), whether those of 29 July, 1899 or those of 18 October, 1907, and which are
Parties to the present Convention, this last Convention shall be supplementary to the aforementioned Convention(IX) and to the Regulations annexed to the aforementioned Convention (IV) and shall substitute for the emblem
described in Article 5 of the aforementioned Convention (IX) the emblem described in Article 16 of the present
Convention, in cases in which the present Convention and the Regulations for its execution provide for the use ofthis distinctive emblem.”).

191

1954 HAGUE CULTURAL PROPERTY CONVENTION art. 36(2) (“In the relations between Powers which are boundby the Washington Pact of l 5 April 1935 for the Protection of Artistic and Scientific Institutions and of Historic
Monuments (Roerich Pact) and which are Parties to the present Convention, the latter Convention shall be
supplementary to the Roerich Pact and shall substitute for the distinguishing flag described in Article III of the Pact
the emblem defined in Article 16 of the present Convention, in cases in which the present Convention and theRegulations for its execution provide for the use of this distinctive emblem.”).

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The United States signed the VCLT on April 24, 1970. President Nixon transmitted the
VCLT to the Senate for its advice and consent to ratification on November 22, 1971. 192
The United States is not a Party to the VCLT but has viewed many of its provisions as
reflecting customary international law.
19.19 BIOLOGICAL WEAPONS CONVENTION
After negotiations at the Conference of the Committee on Disarmament at Geneva and at
the United Nations, the Biological Weapons Convention was opened for signature on April 10,
1972. 193
The United States deposited its instrument of ratification on March 26, 1975. 194
The Biological Weapons Convention followed the 1925 Geneva Gas and BacteriologicalProtocol. 195
In implementation of the Biological Weapons Convention, Congress enacted legislationprohibiting development, production, transfer, acquisition, or possession of a biological agent,
toxin, or delivery system for use as a weapon. 196
19.20 1977 ADDITIONAL PROTOCOLS TO THE 1949 GENEVA CONVENTIONS
A diplomatic conference between 1974 and 1977 negotiated two protocols to the 1949
Geneva Conventions that addressed international armed conflict (AP I) and non-internationalarmed conflict (AP II).
Because these treaties were negotiated at the same time, they may provide information on
States’ views on differences between the rules applicable in international armed conflict and the192

Richard Nixon, Letter of Transmittal, Nov. 22, 1971, MESSAGE FROM THE PRESIDENT TRANSMITTING THE VCLT

III.
193

Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological)
and Toxin Weapons and on Their Destruction, 1015 UNTS 164.
194

1015 UNTS 165.

195

Refer to § 19.12 (1925 Geneva Gas and Bacteriological Protocol).

196

18 U.S.C. § 175 (“Prohibitions with respect to biological weapons. (a) In general. -- Whoever knowingly
develops, produces, stockpiles, transfers, acquires, retains, or possesses any biological agent, toxin, or delivery
system for use as a weapon, or knowingly assists a foreign state or any organization to do so, or attempts, threatens,
or conspires to do the same, shall be fined under this title or imprisoned for life or any term of years, or both. Thereis extraterritorial Federal jurisdiction over an offense under this section committed by or against a national of theUnited States. (b) Additional offense. -- Whoever knowingly possesses any biological agent, toxin, or delivery
system of a type or in a quantity that, under the circumstances, is not reasonably justified by a prophylactic,
protective, bona fide research, or other peaceful purpose, shall be fined under this title, imprisoned not more than 10
years, or both. In this subsection, the terms ‘biological agent’ and ‘toxin’ do not encompass any biological agent or
toxin that is in its naturally occurring environment, if the biological agent or toxin has not been cultivated, collected,
or otherwise extracted from its natural source. (c) Definition. -- For purposes of this section, the term ‘for use as aweapon’ includes the development, production, transfer, acquisition, retention, or possession of any biological agent,
toxin, or delivery system for other than prophylactic, protective, bona fide research, or other peaceful purposes.”).

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rules applicable in non-international armed conflict. 197
19.20.1 AP I. Protocol (I) Additional to the Geneva Conventions, and Relating to theProtection of Victims of International Armed Conflicts (AP I) contains rules on the conduct ofhostilities during international armed conflict that are intended to supplement the 1949 Geneva
Conventions. 198 For example, AP I provides additional protections for the wounded and sick,and provides for the establishment of an international humanitarian fact-finding commission. 199
AP I, however, does not apply to the use of nuclear weapons. 200
The United States signed AP I and stated two understandings. 201 As explained below, AP
I is a significant law of war treaty that the United States has decided not to ratify.
On January 28, 1987, President Reagan informed the Senate that AP I would not be
submitted for the Senate’s advice and consent to ratification because it is “fundamentally andirreconcilably flawed.” 202 However, President Reagan noted that the United States would
support “the positive provisions of Protocol I that could be of real humanitarian benefit if
generally observed by parties to international armed conflicts.” 203
This manual references AP I provisions, some of which are consistent with DoD practice.
Unless explicitly noted, no determinations are made about whether any of these AP I provisions
reflect customary international law.
19.20.1.1 Examples of AP I Provisions Incorporated Into Other Treaties That the197

Refer to § 17.2.2.2 (Considered Absence of a Restriction in NIAC).

198

Protocol (I) Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victimsof International Armed Conflicts of June 8, 1977.
199

Refer to § 7.20 (AP I Provisions on the Wounded, Sick, and Shipwrecked); § 18.14.1.1 (AP I – International
Humanitarian Fact-Finding Commission (IHFFC)).
200

Refer to § 6.18.3 (AP I Provisions and Nuclear Weapons).

201

United States, Statement on Signature of AP I, 1125 UNTS 404, 434 (“1. It is the understanding of the UnitedStates of America that the rules established by this Protocol were not intended to have any effect on and do not
regulate or prohibit the use of nuclear weapons. 2. It is the understanding of the United States of America that thephrase ‘military deployment preceding the launching of an attack’ in Article 44, paragraph 3, means any movement
towards a place from which an attack is to be launched.”).
202

Ronald Reagan, Letter of Transmittal, Jan. 29, 1987, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II III-IV(“Like all other efforts associated with the International Committee of the Red Cross, this agreement has certain
meritorious elements. But Protocol I is fundamentally and irreconcilably flawed. It contains provisions that would
undermine humanitarian law and endanger civilians in war. … These problems are so fundamental in character thatthey cannot be remedied through reservations, and I therefore have decided not to submit the Protocol to the Senate
in any form, and I would invite an expression of the sense of the Senate that it shares this view. Finally, the Joint
Chiefs of Staff have also concluded that a number of the provisions of the Protocol are militarily unacceptable.”).
203

Ronald Reagan, Letter of Transmittal, Jan. 29, 1987, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II IV(“In this case, for example, we can reject Protocol I as a reference for humanitarian law, and at the same time devise
an alternative reference for the positive provisions of Protocol I that could be of real humanitarian benefit if
generally observed by parties to international armed conflicts. We are therefore in the process of consulting with
our allies to develop appropriate methods for incorporating these positive provisions into the rules that govern our
military operations, and as customary international law.”).

1177

United States Has Accepted. Some AP I provisions have been incorporated into later treaties towhich the United States is a Party. For example, AP I’s definition of military objective in Article
51(2) is substantially similar to the definition in Article 2(6) of CCW Amended Mines Protocol
and Article 1(3) of CCW Protocol III on Incendiary Weapons. 204 Similarly, requirements under
the Child Soldiers Protocol and U.S. law are comparable to AP I’s requirements with respect tochild soldiers. 205
19.20.1.2 Examples of AP I Provisions That Are Consistent With Longstanding
U.S. Practice. Certain provisions of AP I may not reflect customary international law, but may
be consistent with longstanding U.S. practice. For example, AP I requires that Parties to AP I
ensure that legal advisers are available to advise military commanders, and the United States haslong employed legal advisers in this role. 206 Similarly, AP I requires that Parties to AP I
undertake a legal review of, inter alia, new weapons, and the DoD policy and practice ofconducting weapons reviews preceded this provision of AP I. 207
19.20.1.3 Examples of AP I Provisions That the United States Has Supported.
The United States has expressed support for certain AP I provisions. For example, United States
has supported and sought to promote as a matter of national policy fundamental guarantees forthe treatment of persons detained during international armed conflict that are reflected in Article
75 of AP I. 208
19.20.1.4 Examples of AP I Provisions Based on a Principle That the U.S.
Supports, Even Though the Provision Is Not Necessarily Customary International Law Nor
Militarily Acceptable in All Respects. In some cases, the United States has supported a principle
underlying an AP I provision, but the provision may not be customary international law or
militarily acceptable in all respects. For example, the United States has supported the principle
recognized in AP I that journalism is generally to be regarded as a civilian activity. 209
Even where the United States has expressed support for an underlying customary
principle that AP I provisions are based upon, the United States may disagree that the languageof the provision reflects customary international law. For example, with regard to “direct
participation in hostilities,” the United States has supported the customary principle underlying
Article 51(3) of AP I, but has disagreed that the language of that provision reflects customaryinternational law. 210 Similarly, the intricacy of the provisions of AP I on objects indispensable tothe survival of the civilian population make it doubtful that such provisions could becharacterized as customary international law, although the United States has supported the204

Refer to § 5.6.3 (Objects That Are Military Objectives).

205

Refer to § 4.20.5.1 (U.S. Offense of Recruiting or Using Child Soldiers).

206

Refer to § 18.5 (Role of Judge Advocates and Legal Advisers).

207

Refer to § 6.2.3 (AP I Requirement for Legal Review of a New Weapon, Means, or Method of Warfare).

208

Refer to § 8.1.4.2 (Article 75 of AP I and Relevant AP II Provisions).

209

Refer to § 4.24.1 (Status of Journalists – Generally Civilian).

210

Refer to § 5.8.1.2 (AP I, Article 51(3) Provision on Direct Participation in Hostilities).

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principle that the starvation of civilians not be used as a method of warfare. 211 In addition,although the United States has supported the principle that civilian civil defense organizations
and their personnel be respected and protected as civilians, a number of military operational
problems have been identified with respect to the system of protection for civil defense
established by AP I. 212
19.20.1.5 Examples of AP I Provisions to Which the United States Has Objected.
The United States has objected to certain provisions of AP I. For example, the United States has
objected to AP I provisions on:•

national liberation movements; 213•

mercenaries; 214•

works and installations containing dangerous forces; 215•

criteria for lawful combatant status; 216•

the obligation of combatants to distinguish themselves; 217•

environmental protection; 218•

presumptions in favor of civilian status in conducting attacks; 219•

prohibiting the use of enemy flags, insignia, or uniforms to shield, favor, protect, or
impede military operations; 220 and•reprisals. 221
19.20.2 AP II. Protocol (II) Additional to the Geneva Conventions, and Relating to the211

Refer to § 5.20.4 (AP I Provision on Objects Indispensable to the Survival of the Civilian Population); § 5.20.1(Starvation – Distinction).
212

Refer to § 4.22 (AP I Provisions on Civil Defense Personnel).

213

Refer to § 3.3.4 (AP I Provision on National Liberation Movements).

214

Refer to § 4.21.1 (Treaties on Mercenaries).

215

Refer to § 5.13.1 (AP I Provisions on Works and Installations Containing Dangerous Forces).

216

Refer to § 4.6.1.2 (AP I and the GPW 4A(2) Conditions).

217

Refer to § 5.4.8.2 (AP I Obligation for Combatants to Distinguish Themselves During Attacks or Military
Operations Preparatory to an Attack).
218

Refer to § 6.10.3.1 (AP I Provisions on Environmental Protection).

219

Refer to § 5.4.3.2 (AP I Presumptions in Favor of Civilian Status in Conducting Attacks).

220

Refer to § 5.23.3 (AP I and the Use of Enemy Flags, Insignia, or Uniforms to Shield, Favor, Protect, or Impede
Military Operations).
221

Refer to § 18.18.3.4 (AP I Provisions on Reprisals).

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Protection of Victims of Non-International Armed Conflict (AP II) addresses certain types of
non-international armed conflicts. 222 AP II reaffirmed, elaborated upon, and supplemented theprotections contained in Common Article 3 of the 1949 Geneva Conventions. 223
19.20.2.1 The United States and AP II. The United States is not a Party to AP II.
The United States signed AP II and stated one understanding on December 12, 1977. 224
President Reagan transmitted AP II to the Senate for its advice and consent to ratification on
January 29, 1987. 225
After the Supreme Court’s decision in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), theBush Administration moved AP II down on the Executive’s treaty priority list, indicating that it
did not seek Senate action on the treaty at that time, so that the Administration could study thetreaty in light of the decision. On March 7, 2011, after interagency review, the Obama
Administration urged the Senate to act as soon as practicable on AP II. 226
Although the United States is not a Party to AP II, reviews have concluded that theprovisions of AP II are consistent with U.S. practice, and that any issues could be addressed withreservations, understandings, and declarations. 227
19.20.2.2 AP II’s Requirements for Its Application. By its terms, AP II does not
apply to all armed conflicts not of an international character. Instead, according to its terms, AP
II only applies to armed conflicts that are not covered by Article 1 of AP I and that take place inthe territory of a Party to AP II between its armed forces and dissident armed forces or otherorganized armed groups, which, under responsible command, exercise such control over a part ofits territory as to enable them to carry out sustained and concerted military operations and to222

Protocol (II) Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victimsof Non-International Armed Conflicts of June 8, 1977.
223

Refer to § 19.16.1.3 (Common Article 3 of the 1949 Geneva Conventions).

224

United States, Statement on Signature of AP II, 1125 UNTS 699 (“It is the understanding of the United States ofAmerica that the terms used in Part III of this Protocol which are the same as the terms defined in Article 8 ofProtocol I shall so far as relevant be construed in the same sense as those definitions.”).
225

Ronald Reagan, Letter of Transmittal, Jan. 29, 1987, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II III.

226

The White House, Office of the Press Secretary, Fact Sheet: New Actions on Guantánamo and Detainee Policy,
Mar. 7, 2011 (“Additional Protocol II, which contains detailed humane treatment standards and fair trial guarantees
that apply in the context of non-international armed conflicts, was originally submitted to the Senate for approval by
President Reagan in 1987. The Administration urges the Senate to act as soon as practicable on this Protocol, towhich 165 States are a party. An extensive interagency review concluded that United States military practice isalready consistent with the Protocol’s provisions.”).
227

George P. Shultz, Letter of Submittal, Dec. 13, 1986, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II VIII(“With the above caveats, the obligations contained in Protocol II are no more than a restatement of the rules ofconduct with which U.S. military forces would almost certainly comply as a matter of national policy, constitutional
and legal protections, and common decency.”); Hillary Rodham Clinton, Secretary of State and Robert Gates,
Secretary of Defense, Letter to Senators Kerry and Lugar, Mar. 7, 2011 (“We have now completed a comprehensive
interagency review of Protocol II, and, subject to reservations, understandings, and declarations that were submitted
to the Senate in 1987, along with refinements and additions that we will submit, assess it to be consistent withcurrent military practice and beneficial to our national security and foreign policy interests.”).

1180

implement AP II. 228
This threshold limits the application of AP II to a subset of armed conflicts that would becovered by Common Article 3 of the 1949 Geneva Conventions. For example, AP II would only
cover conflicts in which dissident armed forces or other organized armed groups are organizedand disciplined like regular armed forces. 229 In addition, non-State armed groups must be in aposition to implement AP II before it is deemed to apply to all parties to the conflict. 230
Although AP II specifies more strict requirements for its application, President Reagan,in submitting AP II to the Senate for its advice and consent to ratification, recommended that theUnited States take the position that it would apply AP II to all armed conflicts that would becovered by Common Article 3 of the 1949 Geneva Conventions. 231
19.21 CCW, CCW AMENDED ARTICLE 1, AND CCW PROTOCOLS
19.21.1 CCW. The Convention on Certain Conventional Weapons (CCW) and Protocols
I, II, and III were adopted at Geneva on October 10, 1980. Subsequent conferences adopted: (1)an amended Protocol II; (2) Protocols IV and V; and (3) an amendment to apply the CCW andProtocols I, II, III, and IV to non-international armed conflicts.
Protocols to the CCW are subject to ratification or other acceptance by a State before
such protocols enter into force for that State. Additional protocols that have been adopted by aConference of States Parties enter into force as provided in paragraphs 3 and 4 of Article 5 of the228

AP II art. 1(1) (“This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of
12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are
not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of aHigh Contracting Party between its armed forces and dissident armed forces or other organized armed groups which,under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained
and concerted military operations and to implement this Protocol.”).
229

BOTHE, PARTSCH, & SOLF, NEW RULES 626 (AP II art. 1, ¶2.5) (“Regarding the concept of ‘organized armed
groups’ the ICRC delivered the following statement during the negotiations in Working Group B of Committee I:
The expression does not mean any armed band acting under a leader. Such armed groups must be structured andpossess organs, and must therefore have a system for allocating authority and responsibility: they must also be
subject to rules of internal discipline. Consequently the expression ‘organized armed groups’ does not imply any
appreciable difference in degree of organization from that of regular armed forces.”).
230

ICRC AP COMMENTARY 1353 (¶4470) (“This is the fundamental criterion which justifies the other elements ofthe definition: being under responsible command and in control of a part of the territory concerned, the insurgents
must be in a position to implement the Protocol. The threshold for application therefore seems fairly high. Yet,apart from the fact that it reflects the desire of the Diplomatic Conference, it must be admitted that this threshold hasa degree of realism. The conditions laid down in this paragraph 1, as analysed above, correspond with actual
circumstances in which the parties may reasonably be expected to apply the rules developed in the Protocol, since
they have the minimum infrastructure required therefor.”).
231

George P. Shultz, Letter of Submittal, Dec. 13, 1986, MESSAGE FROM THE PRESIDENT TRANSMITTING AP II VIII(“We are therefore recommending that U.S. ratification be subject to an understanding declaring that the UnitedStates will apply the Protocol to all conflicts covered by Article 3 common to the 1949 Conventions ... . This
understanding will also have the effect of treating as non-international these so-called ‘wars of national liberation’described in Article 1(4) of Protocol I which fail to meet the traditional test of an international conflict.”).

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CCW. 232 Paragraphs 3 and 4 of Article 5 of the CCW provide, inter alia, that each of the
CCW’s Protocols may only enter into force for a State after that State has notified its consent tobe bound by it. 233 Thus, a State’s notification of its consent to be bound by a Protocol is aprerequisite to the Protocol’s entry into force for that State.
Similarly, amendments to the CCW or its Protocols are subject to ratification or otheracceptance by a State before such amendments enter into force for that State. Amendments to
the CCW or its Protocols are adopted and enter into force in the same manner as the CCW and
its Protocols. 234 As discussed above, a State must provide notification of its consent to be boundby a CCW Protocol before that Protocol’s entry into force for that State. Similarly, the CCW is
subject to ratification or other acceptance by States. 235 And, the CCW only enters into force fora State after that State has deposited its instrument of ratification or other acceptance. 236 Thus, aState’s acceptance of any amendment to the CCW or its Protocols is a prerequisite to thatamendment’s entry into force for that State.
The United States is a Party to the: (1) CCW; (2) CCW Protocol I; (3) CCW Amended
Mines Protocol; (4) CCW Protocol III on Incendiary Weapons; (5) CCW Protocol IV on
Blinding Laser Weapons; and (6) CCW Protocol V on Explosive Remnants of War. The UnitedStates deposited its instrument of ratification to the CCW and accepted Protocols I and II on
March 25, 1995. The United States provided notification of its consent to be bound by the CCW
Amended Mines Protocol on May 24, 1999. The United States deposited its instrument of
ratification to the Amendment to Article 1 of the CCW, and provided notification of its consent
232

CCW art. 8(2)(b) (Additional protocols to the CCW adopted at a conference convened under Article 8(2) “shallenter into force as provided in paragraphs 3 and 4 of Article 5 of this Convention.”); CCW art. 8(2)(b) (Additional
protocols to the CCW adopted at a conference convened under Article 8(3) “shall enter into force as provided inparagraphs 3 and 4 of Article 5 of this Convention.”).
233

CCW art. 5 (“3. Each of the Protocols annexed to this Convention shall enter into force six months after the dateby which twenty States have notified their consent to be bound by it in accordance with paragraph 3 or 4 of Article 4of this Convention. 4. For any State which notifies its consent to be bound by a Protocol annexed to this Convention
after the date by which twenty States have notified their consent to be bound by it, the Protocol shall enter into force
six months after the date on which that State has notified its consent so to be bound.”). See also CCW art. 4 (“3.
Expressions of consent to be bound by any of the Protocols annexed to this Convention shall be optional for eachState, provided that at the time of the deposit of its instrument of ratification, acceptance or approval of thisConvention or of accession thereto, that State shall notify the Depositary of its consent to be bound by any two or
more of these Protocols. 4. At any time after the deposit of its instrument of ratification, acceptance or approval ofthis Convention or of accession thereto, a State may notify the Depositary of its consent to be bound by any annexed
Protocol by which it is not already bound.”).
234

CCW art. 8(1)(b) (Amendments to the CCW or its protocols adopted at a conference convened under Article 8(1)“shall be adopted and shall enter into force in the same manner as this Convention and the annexed Protocols, … .”);
CCW art. 8(3)(a) (Amendments to the CCW or its protocols adopted at a conference convened under Article 8(3)“shall be adopted and enter into force in accordance with subparagraph 1 (b) above.”)).
235

CCW art. 4 (“1. This Convention is subject to ratification, acceptance or approval by the Signatories. Any State
which has not signed this Convention may accede to it.”).

236

See CCW art. 5 (“1. This Convention shall enter into force six months after the date of deposit of the twentieth
instrument of ratification, acceptance, approval or accession. 2. For any State which deposits its instrument of
ratification, acceptance, approval or accession after the date of the deposit of the twentieth instrument of ratification,
acceptance, approval or accession, this Convention shall enter into force six months after the date on which that
State has deposited its instrument of ratification, acceptance, approval or accession.”).

1182

to be bound by Protocols III, IV, and V, on January 21, 2009.
19.21.1.1 CCW Amended Scope of Application. For the United States, the CCW
and its Protocols apply to non-international armed conflict. 237
On December 21, 2001, Parties to the CCW adopted an amendment to Article 1 of the
CCW that modified the application of the CCW and Protocols I, II, III, and IV to apply to noninternational armed conflicts. 238 The CCW Amended Mines Protocol and CCW Protocol V on
Explosive Remnants of War also apply to non-international armed conflicts. 239
The amended scope of the CCW does not prejudice additional protocols to the CCW
adopted after January 1, 2002, which may apply, exclude, or modify the scope of theirapplication in relation to Article 1 of the CCW. 240
The United States deposited its instrument of ratification to the amendment to Article 1 of
the CCW on January 21, 2009. 241
U.S. policy before the entry into force for the United States of the amendment to Article 1of the CCW was to apply the CCW, Protocol I, Protocol II, and CCW Protocol IV on Blinding
Laser Weapons to non-international armed conflict. At the time of the deposit of U.S.
instruments of ratification of the CCW, CCW Protocol I, and CCW Protocol II, the United States
declared its intent to apply the provisions of those instruments to all armed conflicts referred toin Articles 2 and 3 of the GPW, i.e., both international and non-international armed conflicts. 242
Similarly, before the United States ratified the amendment to Article 1 of the CCW, U.S. policy
was to apply the CCW Protocol on Blinding Laser Weapons to all armed conflicts and inpeacetime. 243

237

Refer to § 17.2.1.1 (Treaties That Have Provisions That Explicitly Apply to NIAC).

238

Amendment to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons
Which May be Deemed to be Excessively Injurious or to have Indiscriminate Effects – Overview, 3, MESSAGE FROM
THE PRESIDENT TRANSMITTING AP III, CCW AMENDED ARTICLE 1, AND CCW PROTOCOL V ON EXPLOSIVEREMNANTS OF WAR 9 (“By its terms, this paragraph means that the amended scope provision automatically applies
to CCW Protocols I, II, III, and IV.”).
239

Refer to § 17.2.1.1 (Treaties That Have Provisions That Explicitly Apply to NIAC).

240

CCW AMENDED art. 1 (“The provisions of paragraphs 2 to 6 of this Article shall not prejudice additional
Protocols adopted after January 1, 2002, which may apply, exclude or modify the scope of their application in
relation to this Article.”).

2412562 UNTS 39 (RATIFICATION United States of America Deposit of instrument with the Secretary-General of
the United Nations: 21 January 2009).
242

United States, Statement on Ratification of the CCW, Accepting Protocols I & II, Mar. 24, 1995, 1861 UNTS 482,
482-83 (“The United States declares, with reference to the scope of application defined in Article 1 of theConvention, that the United States will apply the provisions of the Convention, Protocol I, and Protocol II to allarmed conflicts referred to in Articles 2 and 3 common to the Geneva Conventions for the Protection of War
Victims of August 12, 1949.”).

243

Article-by-Article Analysis of CCW Protocol IV on Blinding Laser Weapons, 3-4, Enclosure C to Warren
Christopher, Letter of Submittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDEDMINES PROTOCOL, PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 43-

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19.21.1.2 U.S. Reservation to Article 7(4)(b) of the CCW. The United States took
a reservation to Article 7(4)(b) of the CCW. 244
Article 7(4) of the CCW provides:
This Convention, and the annexed Protocols by which a High Contracting Party isbound, shall apply with respect to an armed conflict against that High Contracting
Party of the type referred to in Article 1, paragraph 4, of Additional Protocol I to
the Geneva Conventions of 12 August 1949 for the Protection of War Victims:…
(b) where the High Contracting Party is not a party to Additional Protocol I and
an authority of the type referred to in subparagraph (a) above accepts and applies
the obligations of the Geneva Conventions and of this Convention and therelevant annexed Protocols in relation to that conflict. Such an acceptance andapplication shall have in relation to that conflict the following effects:(i) the Geneva Conventions and this Convention and its relevant annexed
Protocols are brought into force for the parties to the conflict with immediate
effect;(ii) the said authority assumes the same rights and obligations as thosewhich have been assumed by a High Contracting Party to the Geneva
Conventions, this Convention and its relevant annexed Protocols; and(iii) the Geneva Conventions, this Convention and its relevant annexed
Protocols are equally binding upon all parties to the conflict.
The High Contracting Party and the authority may also agree to accept and apply
the obligations of Additional Protocol I to the Geneva Conventions on areciprocal basis.
The U.S. reservation to Article 7(4)(b) of the CCW is consistent with the longstanding objectionsof the United States to Article 1(4) of AP I regarding national liberation movements. 245
19.21.1.3 CCW and Customary International Law. The restrictions andprohibitions in the CCW and its Protocols on weapons generally have not been based on thepremise that such restrictions or prohibitions are warranted because the weapons at issue are

44 (“The United States favored an expanded scope of application for the Blinding Laser Weapons Protocol. As amatter of policy, the United States will refrain from the use of laser weapons prohibited by the Protocol. Therefore,
while the Blinding Laser Weapons Protocol does not legally apply to all armed conflicts, it is U.S. policy to apply
the Protocol to all such conflicts, however, they may be characterized, and in peacetime.”).
244

United States, Statement on Ratification of the CCW, Accepting Protocols I & II, Mar. 24, 1995, 1861 UNTS 482(“(1) Reservation. Article 7 (4) (b) of the Convention shall not apply with respect to the United States.”).

245

Refer to § 3.3.4 (AP I Provision on National Liberation Movements).

1184

calculated to cause superfluous injury or are inherently indiscriminate. 246 Rather, the CCW andProtocols have been drafted on the basis that they are largely new contractual rules, and not arestatement of existing customary international law. 247
19.21.2 CCW Protocol I. CCW Protocol I prohibits the use of weapons whose primaryeffect is to injure by fragments not detectable by X-rays. 248
CCW Protocol I was adopted by the first CCW Conference in 1980. The United States
accepted CCW Protocol I on March 24, 1995, when it deposited its instrument of ratification to
the CCW. 249
19.21.3 CCW Amended Mines Protocol. The CCW Amended Mines Protocol addresses
landmines, booby-traps, and other devices. 250
CCW Protocol II on Mines, Booby-traps and Other Devices was adopted by the first
CCW Conference in 1980. The United States accepted CCW Protocol II on March 24, 1995,
when it deposited its instrument of ratification to the CCW. 251
CCW Protocol II was later substantially amended by the first Review Conference of
CCW States Parties, which concluded its work on May 3, 1996. The CCW Amended Mines
Protocol includes more detailed restrictions on the use of mines, booby-traps, and other devices,and prohibitions on specific types of such devices. The CCW Amended Mines Protocol also
applies to non-international armed conflicts. 252 The CCW Amended Mines Protocol has
provisions that are to be observed at all times, e.g., provisions that are to be implemented in

246

George Aldrich, Ambassador, Chairman of the Delegation, Report of the United States Delegation to the United
Nations Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons Which May be
Deemed to be Excessively Injurious or to have Indiscriminate Effects, Second Session, Geneva, Switzerland,
September 15-October 10, 1980, 16 (Jan. 15, 1981) (“Finally, it is significant to note that the Conference ended withno finding that these restrictions and prohibitions were imposed because of any agreed belief or finding that they
were in fact excessively injurious or had indiscriminate effects. Thus the adoption of this Convention in no way
affects the legality, under the customary and conventional law of war, of past uses of these weapons in the modes tobe restricted or prohibited. The restrictions and prohibitions contained in the Convention were recognized by the
Conference as being primarily new contractual rules which would only bind parties in the future.”).
247

United States, Statement on Signature of the CCW, Apr. 8, 1982, 1342 UNTS 255 (“As indicated in thenegotiating record of the 1980 Conference, the prohibitions and restrictions contained in the Convention and its
Protocols are of course new contractual rules (with the exception of certain provisions which restate existing
international law) which will only bind States upon their ratification of, or accession to, the Convention and theirconsent to be bound by the Protocols in question.”).
248

Refer to § 6.11 (Weapons Injuring by Fragments Not Detectable by X-Rays).

249

1861 UNTS 482 (“Instrument deposited on: 24 March 1995 UNITED STATES OF AMERICA (With effect from 24
September 1995. Accepting Protocols I and II.)”).
250

Refer to § 6.12 (Landmines, Booby-Traps, and Other Devices).

251

1861 UNTS 482 (“Instrument deposited on: 24 March 1995 UNITED STATES OF AMERICA (With effect from 24
September 1995. Accepting Protocols I and II.)”).
252

Refer to § 17.2.1.1 (Treaties That Have Provisions That Explicitly Apply to NIAC).

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peace-time. 253
Before the United States accepted the CCW Amended Mines Protocol, U.S. policy was toobserve the requirements of the CCW Amended Mines Protocol to the fullest extent possible. 254
The CCW Amended Mines Protocol entered into force on December 3, 1998. 255 The
United States provided notification of its consent to be bound by the CCW Amended Mines
Protocol with declarations and a reservation on May 24, 1999. 256
19.21.4 CCW Protocol III on Incendiary Weapons. CCW Protocol III on Incendiary
Weapons places certain restrictions on the use of incendiary weapons. 257
CCW Protocol III on Incendiary Weapons was adopted by the first CCW Conference in1980. The United States provided notification of its consent to be bound by CCW Protocol III
on Incendiary Weapons on January 21, 2009, with a reservation and an understanding. 258
253

Article-by-Article Analysis of CCW Amended Mines Protocol, 3-4, Enclosure A to Warren Christopher, Letter ofSubmittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 3-4 (“Finally, it wasunderstood that certain provisions of the amended Protocol must be observed at all times. A statement to this effectwas made part of the negotiating record by the delegation of Belgium, speaking on behalf of 24 other delegations,
including the U.S. delegation, at the final plenary session of the Review Conference and was not contested by anyother delegation. This conclusion is supported, as well, by the scope of the Convention itself which makes clear thatit and its annexed Protocols shall apply in situations referred to in Article 2 common to the Geneva Conventions of
12 August 1949. Common Article 2 refers specifically to provisions which shall be implemented in peace-time, arecognition that certain provisions must be observed at all times if they are to be implemented in good faith. Amongthe provisions of the amended Protocol that must be so observed are: the provisions regarding the recording,marking, monitoring and protection of areas containing mines; provisions of Article 8 regarding transfers; andprovisions of Articles 13 and 14 regarding consultations and compliance. A statement to this effect was made partof the negotiating record by the U.S. Delegation, and was not contested by any other delegation.”).
254

Review Conference of the States Parties to the Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects,
Summary Record of the 14th Meeting (Second Part), Second resumed session, Geneva, Apr. 22 – May 3, 1996,
CCW/CONF.I/SR.14/Add.1, May 9, 1996, ¶¶6-8 (“Mr. MATHESON (United States of America) said that therevised Protocol II on land-mines was a significant advance that would, if widely observed, result in a substantial
decrease in civilian casualties and be an important first step towards the elimination of such mines. … While such acommitment did not legally bind the United States or prejudice the Senate’s consideration of the amended Protocol,
it was his country’s policy, pending the entry into force of the Protocol, to observe all of its restrictions to the fullest
extent possible from the time of adoption.”).
255

2048 UNTS 93 (“Entry into force: 3 December 1998, in accordance with article 2 of the Protocol”).

256

2065 UNTS 128 (“CONSENT TO BE BOUND (WITH DECLARATIONS AND RESERVATION) United States of America
Notification effected with the Secretary-General of the United Nations: 24 May 1999”).
257

Refer to § 6.14 (Incendiary Weapons).

258

United States, Statement on Consent to Be Bound by CCW Protocol III on Incendiary Weapons, Jan. 21, 2009,
2562 UNTS 36, 37 (“It is the understanding of the United States of America that any decision by any militarycommander, military personnel, or any other person responsible for planning, authorizing or executing military
action shall only be judged on the basis of that person’s assessment of the information reasonably available to theperson at the time the person planned, authorized, or executed the action under review, and shall not be judged on
the basis of information that comes to light after the action under review was taken.”). Refer to § 6.14.3.2 (U.S.
Reservation to CCW Protocol III on Incendiary Weapons).

1186

19.21.5 CCW Protocol IV on Blinding Laser Weapons. CCW Protocol IV on Blinding
Laser Weapons prohibits the use of blinding laser weapons and requires that feasible precautions
be taken in the employment of laser systems to avoid causing permanent blindness. 259
States Parties to the CCW adopted CCW Protocol IV on Blinding Laser Weapons at thefirst Review Conference of CCW States Parties, which concluded its work on May 3, 1996. 260
This Protocol was consistent with DoD policy on blinding lasers before the Protocol was
adopted. 261
The United States provided notification of its consent to be bound by CCW Protocol IV
on Blinding Laser Weapons on January 21, 2009, with an understanding. 262
U.S. legal reviews before CCW Protocol IV was adopted concluded that the use of a laser
for the purpose of blinding an enemy combatant would not constitute unnecessary suffering
under the law of war. 263 Similarly, the restrictions in CCW Protocol IV on Blinding Laser
Weapons may be characterized as arms control obligations in that these restrictions do notestablish that the use of lasers as anti-personnel weapons, including for the purpose of blinding,is prohibited by the rule against weapons calculated to cause unnecessary suffering nor otherwise
prohibited by the customary law of war. 264
259

Refer to § 6.15 (Laser Weapons).

260

Additional Protocol to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional
Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (Protocol IV, entitled
Protocol on Blinding Laser Weapons), Oct. 13, 1995, 2024 UNTS 163.
261

William J. Perry, Secretary of Defense, DOD Policy on Blinding Lasers, Jan. 17, 1997 (amending policy
statement of Aug. 29, 1995) (“The Department of Defense prohibits the use of lasers specifically designed to cause
permanent blindness and supports negotiations to prohibit the use of such weapons. However, laser systems are
absolutely vital to our modern military. Among other things, they are currently used for detection, targeting, rangefinding, communications and target destruction. They provide a critical technological edge to U.S. forces and allow
our forces to fight, win and survive on an increasingly lethal battlefield. In addition, lasers provide significant
humanitarian benefits. They allow weapon systems to be increasingly discriminate, thereby reducing collateral
damage to civilian lives and property. The Department of Defense recognizes that accidental or incidental eye
injuries may occur on the battlefield as the result of the use of lasers not specifically designed to cause permanent
blindness. Therefore, we continue to strive, through training and doctrine, to minimize these injuries.”).
262
United States, Statement on Consent to Be Bound to CCW Protocol IV on Blinding Laser Weapons, Jan. 21,
2009, 2562 UNTS 38 (“It is the understanding of the United States of America with respect to Article 2 that any
decision by any military commander, military personnel, or any other person responsible for planning, authorizingor executing military action shall only be judged on the basis of that person’s assessment of the information
reasonably available to the person at the time the person planned, authorized or executed the action under review,and shall not be judged on the basis of information that comes to light after the action under review was taken.”).
263

Major General Hugh R. Overholt, The Judge Advocate General, Army, Memorandum of Law: Use of Lasers as
Antipersonnel Weapons, ¶7, Sept. 29, 1988, reprinted in THE ARMY LAWYER 3, 4 (Nov. 1988) (“The fundamental
issue with which this review is concerned is whether the use of a laser for the purpose of blinding an enemy soldier
would constitute unnecessary suffering. The conclusion is that it would not.”).
264

W. Hays Parks, Special Assistant to The Judge Advocate General of the Army for Law of War Matters,
Memorandum of Law: Travaux Preparatoires and Legal Analysis of Blinding Laser Weapons Protocol, reprinted in
THE ARMY LAWYER 33, 36 (Jun. 1997) (“As the delegate from Sweden observed in the fourth and final meeting of
the Laser Working Group on 6 October 1995, Protocol IV is a unique step in combining law of war and arms control
mechanisms. The first sentence of Article 1 follows arms control lines by creating a national obligation to forego1187

19.21.6 CCW Protocol V on Explosive Remnants of War. CCW Protocol V on
Explosive Remnants of War addresses explosive ordnance and explosive remnants of war. 265
CCW Protocol V on Explosive Remnants of War contains no restrictions or prohibitions on theuse of these weapons; rather, it addresses what must be done with respect to unexploded
munitions that threaten civilians and post-conflict reconstruction. 266 CCW Protocol V on
Explosive Remnants of War addresses primarily the steps to be taken before or after hostilities,
not during them, and it includes a Technical Annex of suggested best practices for greater
munitions reliability. 267
CCW Protocol V on Explosive Remnants of War was adopted on November 28, 2003. 268
The United States provided notification of its consent to be bound by CCW Protocol V
on Explosive Remnants of War on January 21, 2009. 269 The United States expressed its
understanding relating to future arrangements in connection with the settlement of armed
conflicts. 270
19.22 CHEMICAL WEAPONS CONVENTION
The Chemical Weapons Convention creates extensive obligations for States with respect
to the use and possession of chemical weapons. 271
Article 22 of the Chemical Weapons Convention prohibits reservations to the Convention
the use on the battlefield of a laser weapon of the type described in the balance of the sentence, rather thanestablishing that an antipersonnel laser weapon is inconsistent with the law of war prohibition on unnecessary
suffering. … Neither the prohibition in Article 1 nor anything else in Protocol IV establishes, nor was it intended toestablish, that an individual, intentional act of blinding by a laser constitutes unnecessary suffering or is otherwise aviolation of the law of war, for several reasons.”).
265

Refer to § 6.19 (Explosive Ordnance); § 6.20 (Explosive Remnants of War).

266

Overview and Article-by-Article Analysis of CCW Protocol V on Explosive Remnants of War 1-2, MESSAGE FROM
THE PRESIDENT TRANSMITTING AP III, CCW AMENDED ARTICLE 1, AND CCW PROTOCOL V ON EXPLOSIVEREMNANTS OF WAR 11-12 (“Protocol V is the first international agreement specifically aimed at reducing thehumanitarian threat posed by unexploded and abandoned munitions of all types remaining on the battlefield after theend of armed conflicts. Protocol V contains no restrictions or prohibitions on the use of these weapons; rather, it
addresses what must be done with respect to unexploded munitions that threaten civilians and post-conflictreconstruction.”).
267

Overview and Article-by-Article Analysis of CCW Protocol V on Explosive Remnants of War 1-2, MESSAGE FROM
THE PRESIDENT TRANSMITTING AP III, CCW AMENDED ARTICLE 1, AND CCW PROTOCOL V ON EXPLOSIVEREMNANTS OF WAR 11-12 (“The Protocol deals primarily with steps to be taken before or after hostilities, not duringthem. Protocol V also includes a Technical Annex of suggested best practices that states Parties to the Protocol areencouraged to follow on a voluntary basis in order to achieve greater munitions reliability.”).
268

Protocol on Explosive Remnants of War to the Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects(Protocol V), Nov. 28, 2003, 2399 UNTS 100-177.
269

2562 UNTS 39, 40 (“Receipt of notification by the Secretary-General of the United Nations: 21 January 2009”).

270

Refer to § 6.20.5 (Obligations Under the CCW Protocol V on Explosive Remnants of War That Are Triggered by
the Cessation of Active Hostilities).
271

Refer to § 6.8.3 (Chemical Weapons).

1188

and prohibits reservations to the Convention’s Annexes incompatible with its object andpurpose. 272
During the negotiation of the Chemical Weapons Convention, President George H.W.
Bush on May 13, 1991, announced that the United States was formally forswearing the use ofchemical weapons for any reason, including retaliation, against any State, effective when theConvention entered into force. 273
The United States signed the Chemical Weapons Convention on January 13, 1993, andPresident Clinton submitted it to the Senate for its advice and consent to ratification on
November 23, 1993. 274 In transmitting the Chemical Weapons Convention to the Senate for its
advice and consent to ratification, President Clinton notified the Senate that the administration
was reviewing the effect of the Convention’s prohibition on the use of riot control agents as amethod of warfare on Executive Order No. 11850, which specified the current policy of theUnited States with regard to the use of riot control agents in war, and would submit the results ofthat review separately to the Senate. 275 The review concluded that under then-current
interpretations of the Chemical Weapons Convention, certain uses of riot control agents
authorized under Executive Order 11850 would no longer be permissible and that a new
Executive Order on riot control agents would be issued. 276 The Senate, as a condition of its
advice and consent to ratification, required that the President certify to Congress that the UnitedStates is not restricted by the Chemical Weapons Convention in its use of riot control agents incertain cases and that Executive Order 11850 would not be modified. 277 President Clinton
272

CHEMICAL WEAPONS CONVENTION art. 22 (“The Articles of this Convention shall not be subject to reservations.
The Annexes of this Convention shall not be subject to reservations incompatible with its object and purpose.”).
273

George H. W. Bush, Statement on Chemical Weapons, May 13, 1991, 1991-I PUBLIC PAPERS OF THE PRESIDENTS
503 (“To demonstrate the United States commitment to banning chemical weapons, we are formally forswearing theuse of chemical weapons for any reason, including retaliation, against any state, effective when the convention
enters into force, and will propose that all states follow suit.”).
274

William J. Clinton, Letter of Transmittal, Nov. 23, 1993, MESSAGE FROM THE PRESIDENT TRANSMITTING THE
CHEMICAL WEAPONS CONVENTION III (“The Convention was opened for signature and was signed by the UnitedStates at Paris on January 13, 1993.”).
275

William J. Clinton, Letter of Transmittal, Nov. 23, 1993, MESSAGE FROM THE PRESIDENT TRANSMITTING THE
CHEMICAL WEAPONS CONVENTION V (“The Administration is reviewing the impact of the Convention’s prohibitionon the use of riot control agents as a method of warfare on Executive Order No. 11850, which specifies the current
policy of the United States with regard to the use of riot control agents in war. The results of the review will be
submitted separately to the Senate.”).
276

William J. Clinton, Message to the Senate on the Impact of the Chemical Weapons Convention on the Use of Riot
Control Agents, Jun. 23, 1994, 1994-I PUBLIC PAPERS OF THE PRESIDENTS 1127, 1128 (“—The CWC does prohibit
the use of RCAs solely against combatants. In addition, according to the current international understanding, the
CWC's prohibition on the use of RCAs as a ‘method of warfare’ also precludes the use of RCAs even forhumanitarian purposes in situations where combatants and noncombatants are intermingled, such as the rescue ofdowned air crews, passengers, and escaping prisoners and situations where civilians are being used to mask or
screen attacks. However, were the international understanding of this issue to change, the United States would notconsider itself bound by this position. Upon receiving the advice and consent of the Senate to ratification of the
Chemical Weapons Convention, a new Executive order outlining U.S. policy on the use of RCAs under theConvention will be issued.”).
277

Senate, Conditions to Ratification of the Chemical Weapons Convention, Senate Resolution 75, 105th Congress,
143 CONGRESSIONAL RECORD S3651, S3657 (1997) (“(26) Riot control agents: (A) Permitted uses. — Prior to the1189

provided this certification on April 25, 1997. 278
The United States ratified the Chemical Weapons Convention on April 25, 1997, with
one condition that relates to the Annex on Implementation and Verification. 279 The treaty
requires that sixty-five nations become Party to it before it enters into force, which occurred on
April 29, 1997. 280
In implementation of the Chemical Weapons Convention, Congress enacted laws
prohibiting, inter alia, development, production, acquisition, transfer directly or indirectly,
receipt, stockpiling, retention, possession, use, or threat of use of any chemical weapon. 281

deposit of the United States instrument of ratification, the President shall certify to Congress that the United States is
not restricted by the Convention in its use of riot control agents, including the use against combatants who areparties to a conflict, in any of the following cases: (i) UNITED STATES NOT A PARTY. — The conduct of peacetime
military operations within an area of ongoing armed conflict when the United States is not a party to the conflict(such as recent use of the United States Armed Forces in Somalia, Bosnia, and Rwanda). (ii) CONSENSUALPEACEKEEPING. — Consensual peacekeeping operations when the use of force is authorized by the receiving state,including operations pursuant to Chapter VI of the United Nations Charter. (iii) CHAPTER VII PEACEKEEPING. —Peacekeeping operations when force is authorized by the Security Council under Chapter VII of the United Nations
Charter. (B) Implementation. — The President shall take no measure, and prescribe no rule or regulation, which
would alter or eliminate Executive Order 11850 of April 8, 1975. (C) Definition. — In this paragraph, the term ‘riot
control agent’ has the meaning given the term in Article II(7) of the Convention.”).
278

William J. Clinton, Message to the Congress on the Chemical Weapons Convention, Apr. 25, 1997, 1997-I
PUBLIC PAPERS OF THE PRESIDENTS 495, 495-97 (“In accordance with the resolution of advice and consent to
ratification of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical
Weapons and on Their Destruction, adopted by the Senate of the United States on April 24, 1997, I hereby certify
that: ... In connection with Condition (26), Riot Control Agents, the United States is not restricted by the Convention
in its use of riot control agents, including the use against combatants who are parties to a conflict, in any of thefollowing 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 (such as recent use of the United States Armed Forces in Somalia, Bosnia,
and Rwanda); (ii) consensual peacekeeping operations when the use of force is authorized by the receiving state,including operations pursuant to Chapter VI of the United Nations Charter; and (iii) peacekeeping operations whenforce is authorized by the Security Council under Chapter VII of the United Nations Charter. … In accordance with
Condition (26) on Riot Control Agents, I have certified that the United States is not restricted by the Convention inits use of riot control agents in various peacetime and peacekeeping operations. These are situations in which theUnited States is not engaged in a use of force of a scope, duration and intensity that would trigger the laws of war
with respect to U.S. forces.”).
279

United States, Declaration Made on Ratification of the Chemical Weapons Convention, Apr. 29, 1997, 1975
UNTS 475 (“Subject to the condition which relates to the Annex on Implementation and Verification, that no
sample collected in the United States pursuant to the Convention will be transferred for analysis to any laboratory
outside the territory of the United States.”).
280

Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons andon Their Destruction, Jan. 13, 1993, 1974 UNTS 317 footnote 1 (“Came into force on 29 April 1997, in accordancewith article XXI:”). See also CHEMICAL WEAPONS CONVENTION art. 21 (“This Convention shall enter into force
180 days after the date of the deposit of the 65th instrument of ratification, but in no case earlier than two years after
its opening for signature.”).
281

18 U.S.C.S. § 229 (“(a) Unlawful conduct. Except as provided in subsection (b), it shall be unlawful for any
person knowingly— (1) to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile,
retain, own, possess, or use, or threaten to use, any chemical weapon; or (2) to assist or induce, in any way, any
person to violate paragraph (1), or to attempt or conspire to violate paragraph (1). (b) Exempted agencies andpersons. (1) In general. Subsection (a) does not apply to the retention, ownership, possession, transfer, or receipt of1190

19.23 ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURTThe Rome Statute of the International Criminal Court (“Rome Statute”) establishes theInternational Criminal Court (“ICC”) at The Hague, Netherlands. 282 Under the Rome Statute,the ICC may investigate and prosecute certain international crimes (e.g., genocide, war crimes)
in certain situations. 283
The United States signed the Rome Statute on December 31, 2000, but President Clinton
did not submit the treaty to the Senate for its advice and consent to ratification. Because of“significant flaws,” President Clinton recommended that his successor not submit the Rome
Statute to the Senate until the United States’ fundamental concerns with the treaty wereaddressed. 284 In particular, the United States has expressed concern that the ICC would claim
jurisdiction over personnel of States that have not ratified the Rome Statute. 285 In addition, forexample, concerns have been raised that the ICC would not provide U.S. persons accused of war
crimes with the procedural protections that they are afforded under U.S. domestic law. 286
On May 6, 2002, the United States filed a letter with the U.N. Secretary General, thedepositary for the Rome Statute, indicating that it “does not intend to become a party to thetreaty,” and that “[a]ccordingly, the United States has no legal obligations arising from its
signature on December 31, 2000.” 287 The United States participated as an observer in the Rome
Statute’s first Review conference in Kampala, Uganda, May 30-June 11, 2010, and has
supported ICC efforts in certain cases. 288 The Department of State Legal Adviser has noted that
U.S. policy is explicitly not to frustrate the object and purpose of the Rome Statute. 289

a chemical weapon by a department, agency, or other entity of the United States, or by a person described inparagraph (2), pending destruction of the weapon. (2) Exempted persons. A person referred to in paragraph (1) is—(A) any person, including a member of the Armed Forces of the United States, who is authorized by law or by anappropriate officer of the United States to retain, own, possess, transfer, or receive the chemical weapon; or (B) in an
emergency situation, any otherwise nonculpable person if the person is attempting to destroy or seize the weapon.”).
282

Rome Statute of the International Criminal Court, Jul. 17, 1998, 2187 UNTS 90.

283

Refer to § 18.20.3 (The International Criminal Court (ICC) Created by the Rome Statute).

284

William J. Clinton, Statement on the Rome Treaty on the International Criminal Court, Dec. 31, 2000, 2000-III
PUBLIC PAPERS OF THE PRESIDENTS 2816.
285

Refer to § 18.20.3.1 (Attempt to Assert Jurisdiction With Respect to Nationals of Non-Party States).

286

See, e.g., 22 U.S.C. § 7421 (“Congress makes the following findings: … (7) Any American prosecuted by theInternational Criminal Court will, under the Rome Statute, be denied procedural protections to which all Americans
are entitled under the Bill of Rights to the United States Constitution, such as the right to trial by jury.”).
287

John Bolton, Letter to Kofi Anan, U.N. Treaty Collection Depository Notification, C.N.434.2002, May 6, 2002.

288

Refer to § 18.20.3.3 (U.S. Law and Policy on Support to the ICC).

289

Harold Hongju Koh, Legal Adviser, Department of State, Remarks on international criminal justice at the Vera
Institute of Justice in New York and at Leiden University, Campus The Hague, 2012 DIGEST OF UNITED STATESPRACTICE IN INTERNATIONAL LAW 61, 68 (“Putting all of this together, as I made clear more than two years ago in aspeech at New York University, ‘What you quite explicitly do not see from this Administration is U.S. hostility
towards the Court. You do not see what international lawyers might call a concerted effort to frustrate the object
and purpose of the Rome Statute. That is explicitly not the policy of this administration. Because although the1191

19.24 1999 U.N. SECRETARY GENERAL’S BULLETIN FOR U.N. FORCESThe U.N. Secretary General has promulgated a bulletin for the purpose of setting out
fundamental principles and rules of international humanitarian law applicable to United Nations
forces conducting operations under United Nations command. 290 The bulletin is not a legallybinding instrument, although, in many cases, the rules reflected in the bulletin reflect law of war
rules that are binding upon the United States as a matter of treaty or customary international law.
The bulletin has been the subject of criticism by States. 291
19.25 2005 ICRC STUDY ON CUSTOMARY INTERNATIONAL HUMANITARIAN LAW
There is no list of treaty provisions (or other codification) that the United States has
agreed reflects the entirety of the customary international law of war. 292
In 2005, the International Committee of the Red Cross published a study on customaryinternational humanitarian law (ICRC CIHL Study), which has been criticized for its
methodology and formulation of certain specific rules. 293 The United States likewise has
expressed serious concerns about the methodology used in the ICRC CIHL Study and has statedthat it is not in a position to accept without further analysis the Study’s conclusions that certain
rules related to the law of war in fact reflect customary international law. 294

United States is not a party to the Rome Statute, we share with the States parties a deep and abiding interest in
seeing the Court successfully complete the important prosecutions it has already begun.’”).
290

U.N. SECRETARIAT, Secretary-General’s Bulletin: Observance by United Nations Forces of International
Humanitarian Law, U.N. Doc. ST/SGB/1999/13 (Aug. 6, 1999) (“The Secretary-General, for the purpose of settingout fundamental principles and rules of international humanitarian law applicable to United Nations forces
conducting operations under United Nations command and control, promulgates the following:”).
291

Report of the Special Committee on Peacekeeping Operations, Comprehensive review of the whole question ofpeacekeeping operations in all their aspects, U.N. Doc. A/54/839 ¶82 (Mar. 20, 2000) (“The Special Committee
notes the Secretary-General’s comments on the guidelines on compliance with international humanitarian law by
United Nations peacekeepers. The Committee expresses concern about the lack of consultation with Member Statesby the Secretariat before finalizing Secretary-General’s Bulletin ST/SGB/1999/13. It requests further clarificationon the Bulletin’s legal status, and stresses that it must accurately reflect the terms of international humanitarian law.
It requests the Secretary-General to carry out consultations on the Bulletin with the Special Committee.”).
292

Refer to § 1.8 (Customary International Law).

293

See, e.g., Daniel Bethlehem, The Methodological framework of the Study, ELIZABETH WILMSHURST & SUSAN
BREAU, PERSPECTIVES ON THE ICRC STUDY ON CUSTOMARY INTERNATIONAL HUMANITARIAN LAW 4 (2007)(“Without detracting from this genuine appreciation, it is necessary and appropriate to draw attention to some
important misgivings about the Study, as regards both methodology and the formulation of certain specific Rules.”).
294

U.S. RESPONSE TO ICRC CIHL STUDY 514 (“Given the Study’s large scope, we have not yet been able tocomplete a detailed review of its conclusions. We recognize that a significant number of the rules set forth in the
Study are applicable in international armed conflict because they have achieved universal status, either as a matter oftreaty law or – as with many provisions derived from the Hague Regulations of 1907 – customary law. Nonetheless,
it is important to make clear – both to you and to the greater international community – that, based upon our review
thus far, we are concerned about the methodology used to ascertain rules and about whether the authors haveproffered sufficient facts and evidence to support those rules. Accordingly, the United States is not in a position toaccept without further analysis the Study’s conclusions that particular rules related to the laws and customs of war infact reflect customary international law.”).

1192

19.26 AP III
A third additional protocol to the 1949 Geneva Conventions was adopted on December 8,
2005. 295 AP III recognizes a red crystal as an additional distinctive emblem for the same
purposes as the distinctive emblems of the Geneva Conventions. 296
The United States deposited its instrument of ratification to AP III on March 8, 2007,
without making any statements of reservation, declaration, or understanding. 297

295

Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional
Distinctive Emblem (Protocol III), Dec. 8, 2005, 2404 UNTS 1.
296

Refer to § 7.15.1.3 (Red Crystal).

297

2444 UNTS 287 (“RATIFICATION United States of America Deposit of instrument with the Government of
Switzerland: 8 March 2007”).

1193