# LAW OF WAR

DESKBOOK

I NTERNATIONAL AND 

## O PERATIONAL 

## L AW 

## D EPARTMENT



## The United States Army Judge Advocate General’ s Legal Center and School Charlottesville, VA

### Jus in Bello Jus ad Bellum International Law

Private Law Public Law
(conflict of laws, commercial) (intergovernmental)



### Law of War Law of Peace

Conflict Management

U.N. Charter

Customary Law

Arms Control Rules of Hostilities

Customary Law Geneva Conventions Hague ConventionsI NTERNATIONAL AND O PERATIONAL L AW D EPARTMENT
T HE J UDGE A DVOCATE G ENERAL ’ S L EGAL C ENTER AND S CHOOL

, U.S. A RMY
C HARLOTTESVILLE

, V IRGINIA



# LAW OF WAR DESKBOOK

Authors

LTC Jeff A. Bovarnick, JA, USA

LtCol J. Porter Harlow, USMC

CDR Trevor A. Rush, JAGC, USN

MAJ Christopher R. Brown, JA, USANG

Maj J. Jeremy Marsh, USAF

MAJ Gregory S. Musselman, JA, USA

MAJ Shane R. Reeves, JA, USA

All of the faculty who have served with and before us and contributed to the literature in the field of the Law of War

Editor

CAPT Bri an J. Bill, JAGC, USN

Technical Support

Ms. Terri Thorne



# January 2010

## P REFACE

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

The proponent of this publication is the International and Operational Law Department, The Judge Advocate General’s Legal Center and School (TJAGLCS). Send comments and suggestions to TJAGLCS, International and Operational Law Dep artment, 600 Massie Road, Charlottesville, VA 22903

- 1781. Our phone number is (434) 971

- 3370; our administrative assistant will connect you with the author for the particular chapter.

This Deskbook is not a substitute for official publications. Similarl y, it should not be considered to espouse an “official” position of the U.S. Army, Department of Defense, or U.S. Government. While every effort has been made to ensure that the material contained herein is current and correct, it should be remembered tha t these are merely a collection of teaching outlines, collected, bound, and distributed as a matter of instructional convenience, intended only to introduce students to the law and point them to primary sources of that law. Accordingly, the only proper ci tation to a substantive provision of this Deskbook should be for the limited proposition of how the Army JAG School teaches its judge advocate students.

ii PrefaceI NTERNATIONAL AND O PERATIONAL L AW D EPARTMENT
T HE J UDGE A DVOCATE G ENERAL ’ S L EGAL C ENTER AND S CHOOL
C HA RLOTTESVILLE

, V IRGINIA



# LAW OF WAR DESKBOOK

TABLE OF CONTENTS

References iv

Abbreviations vi

Introduction to Public International Law 1

History of the Law of War 5

Framework of the Law of War 17

Leg al Basi s for the Use of Force 25

GC I: Wounded and Sick in the Field 37

GC III: Prisoners of War 63

GC IV: Civilians on the Battlefield 91

GC IV: Occupation and Post

- Conflict Governance 10 7

Means and Methods of Warfare 1 31

War Crime s and Command Responsibility 1 63

Human Rights 18 7

201 Comparative Law

Index 2 35

iii Table of Contents

## R EFERENCES

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

Short Version Citation Doc Supp?

HR Regulations Concerning the Laws and Customs of War on Land,

annexed to Hague Convention ( IV) Respec ting the Laws and Customs of War on Land, Oct. 18, 1907, T.S. 539

. X

GC I Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug

. 12, 1949, 6

US T. 3114, T.I.A.S. 3362, 75 U.N.T.S. 31

. X

GC II Ge neva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at

Sea , Aug

. 12, 1949, 6 US T. 3217, T.I.A.S. 3363, 75 U.N. T.S. 85

. X

GC III Geneva Convention, Relative to the Treatment of Prisoners of War,

A ug

. 12, 1949, 6 US T. 3316, T.I.A.S. 3364, 75 U.N.T.S. 135

. X

GC IV Geneva Convention, Relative to the Treatment of Civilian Persons in Time of War, Aug

. 12, 1949, 6 US T. 3516, T.I.A.S. 3365, 75

U.N.T.S. 287

. X

AP I Protocol Additional to the Geneva Conve ntions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3. X

AP II Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non

- International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609. X

AP III Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem, Dec. 8, 2005. X

iv ReferencesShort Version Citation Doc Supp?

GC I Commentary GC II Commentary

e tc. I NTERNATIONAL C OMMITTEE OF THE R ED C ROSS

, G ENEVA
C ONVENTION (I) FOR THE A MELIORATION OF THE C ONDITION OF

THE W OUNDED AND S ICK IN A RMED F ORCES IN THE F IELD : C OMMENTARY (Jean Pictet gen. ed., 1958)

.

AP Commentary I NTERNATIONAL C OMMITTEE OF THE R ED C ROS S

, C OMMENTARY ON

THE A DDITIONAL P ROTOCOLS OF 8 J UNE 1977 TO THE G ENEVA
C ONVENTIONS OF 12 A UGUST 1949 (Yves Sandoz et al. eds., 1987)

.

G.BC Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or Other Gases, and of Bacteriological M ethods of Warfare, June 17, 1925, 26 US T. 571, 94 L.N.T.S. 65

. X

CWC Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Jan

. 13, 1993, 32 I.L.M. 800

. X

H.CP 1954 Hague Conventio n for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 216

. X

1972 BW Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons

and on Their Destruction, Ap r. 10, 1972, 26 US T. 583

. X

CCW Convention on Prohibitions or Restrictions of the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Oct

. 10, 1980, 19

I.L.M. 1523

. X

FM 2 7

- 10 D EP ' T OF THE A RMY

, F IELD M ANUAL 27

- 10, T HE L AW OF L AND
W ARFARE (July 1956)

. X

NWP 1

- 14M D EP ' T OF THE N AVY

, N AVAL W ARFARE P UBLICATION 1

- 14M/ U.S.

M ARINE C ORPS MCPW 5

- 2.1, T HE C OMMANDER ' S H ANDBOOK ON

THE L AW OF N AVAL O PERATIONS (October 1995)

.

v References

## A BBR EVIATIONS

AP I

................................ .................... Additional Protocol I

AP II

................................ .................. Additional Protocol II

AP III

................................ ................. Additional Protocol III

CIL

................................ ..................... Customary I nternational L aw

CJCS

................................ .................. Chairman of the Joint Chiefs of Staff

GC I

................................ ................... Geneva Convention I

GC II

................................ .................. Geneva Convention II

GC III

................................ ................. Geneva Convention III

GC IV

................................ ................ Geneva Convention IV

HR

................................ ...................... Hague Regulations

IAC

................................ .................... International Armed Conflict

ICJ

................................ ...................... International Court of Justice

ICRC

................................ .................. International Committee of the Red Cross

IHL

................................ .................... International Humanitarian Law

JA

................................ ....................... Judge Advocate

LOAC

................................ ................ Law of Armed Conflict

LOW

................................ .................. Law of War

NI AC

................................ ................. Non

- international Armed Conflict

POW

................................ .................. Prisoner of War

RCA

................................ ................... Riot Control Agents

ROE

................................ ................... Rules of Engagement

SROE

................................ ................. Standing Rules of Engagement

UN

................................ ..................... United Nations

UNSC

................................ ................ United Nations Security Council

UNSCR

................................ .............. United Nations Security Council Resolution

vi

Abbreviations

## I NTRODUCTIO N TO 

## P UBLIC 

## I NTERNATIONAL 

## L AW

I. O BJECTIVES

A. Understand the foundation of the international legal system.

B. Understand the primary sources of international law and how they are created.

C. Understand the status of international law in the U.S. domestic legal system.



### II. I NTRODUCTION

A. Military operations involve complex questions related to international law. This body of law provides the framework for informed operational decisions, establishes certain limitations on the scope and nature of command op tions, and imposes affirmative obligations related to the conduct of U.S. forces. Commanders rely on Judge Advocates to understand fundamental principles of international law, translate those principles into an operational product, and articulate the esse nce of the principles when required.



### III. F UNDAMENTAL 

### P RINCIPLES 

### O F 

### I NTERNATIONAL 

### L AW

A. Definition . International law is defined as “rules and principles of general application dealing with the conduct of States and of i nternational organizations and with their

relations inter se , as well as some of their relations with persons, natural or juridical.” 1 Public international law is that portion of international law that deals mainly with intergovernmental relations.

B. Stat es . International law developed to regulate relations between States, and States are the focus of the international legal system. International law establishes four criteria that must be met for an entity to be regarded as a State under the law:

1. Defin ed territory (which can be established even if one of the boundaries is in dispute or some of the territory is claimed by another State);

2. Permanent population (the population must be significant and permanent even if a substantial portion is nomadic);

1 R ESTATEMENT (T HIRD ) OF F OREIGN R ELATIONS L AW OF THE U NITED S TATES , § 101 (1987).

1

Introduction to Public International Law3

. Government ( note that temporary occupation by enemy forces during war or pursuant to an armistice does not serve to extinguish statehood even if the legal control of the territory shifts temporarily); and,

4. Capacity to conduct international relations. 2

C. Consequences of statehood . Under international law, a State has:

1. Sovereignty over its territory and general authority over its nationals;

2. Status as a legal person, with capacity to own, acquire, and transfer property, to

make contracts and enter into international agreements, to become a member of international organizations, and to pursue, and be subject to, legal remedies; and,

3. Capacity to join with other States to make international law, as customary law or by international agreement. 3

D. I nherent tension . Under international law, sovereignty is the ultimate benefit of statehood. Inherent to sovereignty is the notion that a State should be free from outside interference; international law, however, seeks to regulate State conduct.

States “trade” aspects of sovereignty in order to reap the benefits of the international legal system.



### IV. S OURCES 

### O F 

### I NTERNATIONAL 

### L AW

A. Article 38 of the Charter of the International Court of Justice (ICJ) lists the following

sources of international law:

1. International agreements (i.e., treaties).

a. Written international agreements concluded between two or more States. They are also referred to as conventions, protocols, covenants, and attached regulations. They only bin d those States that are parties. Note, however, that customary international law can emerge from rules established in treaties and, as a consequence, bind all States. Also, customary international law can be codified in subsequent treaties.

2 Id . at § 201.

3 Id . at § 206.

2

Introduction to Public International Lawb. In the U.S ., treaties include those international agreements concluded by

the Executive branch which receive the consent of at least two

- thirds of the Senate. Once ratified by the President, they become the “supreme law of the land” pursuant to the Supremacy Clause of the U.S. Constitution (Article VI, Clause 2).

c. Reservations and Understandings . A reservation is essentially a unilateral modification of the basic obligations established by a treaty. Under international law, a reserv ation is permitted if it is compatible with the object and purpose of the treaty. It is treated as a “counter

- offer,” and is only binding upon other States that agree to it, though agreement is assumed. Unlike a reservation, an understanding does not modify basic treaty obligations; rather, it guides future interpretation of those obligations.

d. Treaties and domestic statutes . U.S. laws fall under the umbrella of the Supremacy Clause. Accordingly, a “later in time” analy sis determines the supremacy of a treaty in conflict with a statute. Courts always attempt to reconcile apparent inconsistent provisions before resorting to the later in time rule. A conflict must be explicit for a court to find a statutory intent

to con tradict a treaty.

2. International custom (i.e., customary international law).

a. That law resulting from the general and consistent practice of States followed from a sense of legal obligation ( opinio juris ).

b. Best understood as the “unwritten” rules that bind all members of the community of States.

c. A practice does not require acceptance by 100% of States to amount to customary international law. However, the argument that a norm exists is enhanced proportionally in relation to the number of States that recognize and adhere to the norm. There is also a correlation between the length of time a practice is followed and the persuasiveness that the practice amounts to customary internationa l law. While this factor is not dispositive, developing law is more suspect than established custom.

d. Persistent objector

. It is possible for a State not to be bound by a rule of customary international law if that State persistently and openly objects to the rule as it develops, and continues to declare that it is not bound by the rule. The U.S. may act in accordance with principles that other States

assert amount to c ustomary international law, but expressly state it does

3

Introduction to Public International Lawnot consider itself legally obligated to do so. This is motivated by a concern that our conduct not be considered evidence of a customary norm.

e. Jus Cogens

. Some principles of i nternational law are considered peremptory norms and cannot be derogated, even by treaty. Examples include prohibitions against slavery, genocide, and torture.

f. Unlike international law established by treaty, customary international law

is not mentioned in the Constitution’s Supremacy Clause. It is, however, considered part of U.S. law. See The Paquete Habana , 175 U.S. 677 (1900).

g. Customary international law and treaty law are equal in stature, with the later in time controlling.

3. General principl es of law recognized by civilized nations . These “general principles,” as reflected primarily in the judicial opinions of domestic courts, can serve as “gap fillers” in international law. This provides flexibility to resolve issues that are not squarely resolved by existing treaty or customary

international law.

4. Judicial decisions and the teaching of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. These are not really “sources” of law in that they are “not ways in which law is made, but opinion

- evidence as to whether some rule has in fact become or been accepted as international law.” 4

4 Id . at § 102, reporters’ notes.

4

Introduction to Public International Law

## H ISTORY OF THE 

## L AW OF 

## W AR

I. O BJECTIVES

A. Identify the two “prongs” of legal regulation of war fare.

B. Trace the historical evolution of laws related to the conduct of war.



### II. I NTRODUCTION

A. “In times of war, the law falls silent.” 1 This may have been the case in ancient times,

but it could not be further from the truth in modern times where the laws of war permeate armed conflict.

B. What is War? 2 The international legal definition contains the following four elements: (a) A contention; (b) b etween a t least two nation

- states; (c) w herein armed force is employed ; (d) w ith an intent to overwhelm

.

C. War v. Armed Conflict . Historically, only conflicts meeting the four elements test for “war” triggered law of war application. Some States asserted the law of war was not triggered by all instances of armed conflict. As a result, the applicability of the law of war depended upon the subjective national classification of a conflict. Recognition of a state of war is no longer required to trigger the law of war. Since World War II, the law of war is applicable to any international armed conflict:

“A ny difference arising between two States and leading to the intervention of armed forces is an armed conflict . . . [i]t makes no difference how long the conflict lasts, or how much slaughter takes place.” 3

D. The Law of War . The law of war is the “custom ary and treaty law applicable to the conduct of warfare on land and to relationships between belligerents and neutral

1 This Latin maxim (“Silent enim leges inter arma”) is generally attributable to Cicero, the famous Roman philosopher and politician (106

– 43 B.C.).

2 “One may argue almost endlessly about the legal definition of ‘war.’” GC I Commentary at 32. An

alternative definition is “ War: an armed conflict, or a state of belligerence, between two facti ons, states, nations, coalitions or combinations thereof. Hostilities between the opponents may be initiated with or without a formal declaration by any of the parties that a state of war exists. A war is fought for a stated political or economic purpose to resist an enemy' s efforts to impose domination.” D ICTIONARY OF

M ILITARY T ERMS 261 ( Trevor N. Dupuy et al. eds., 2nd ed , 2003 )

.

3 Id

.

5 History of the Law of WarStates.” 4 It “requires that belligerents refrain from employing any kind or degree of violence which is not actually necessary for milita ry purposes and that they conduct hostilities with regard for the principles of humanity and chivalry.” 5 The law of war is also referred to as the law of armed conflict (LOAC) or international humanitarian law (IHL).

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



### III. U NIFYING 

### T HEMES OF THE 

### L AW OF 

### W AR

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

conduct within war

.

B. Validity . Although critics of the regulation of warfare cite historic examples of violations of evolving laws of war, history provides the greatest evidence of the validity of this body of law.

1. History shows that in the vast majority of instances, the law of war works. Despite the fact that the rules are often violated or ignored, it is clear that mankind is better off with than without them. Mankind has always sought to limit the effect of conflict on combatants and has come to regard war not as a state of anarchy justifying infliction of unlimited suffering, but as an unfortunate reality which must be governed by some rule of law. This point is illustrated in Article 22 of the Hague Regulations: “the right of belligerents to adopt means of inj uring the enemy is not unlimited.” This rule does not lose its binding force in a case of necessity.

2. Regulating the conduct of warfare is ironically essential to the preservation of a civilized world. General MacArthur exemplified this notion when he confirmed the death sentence for Japanese General Yamashita, writing: “The soldier, be he friend or foe, is charged with the protection of the weak and unarmed. It is the very essence and reason of his being. When he violates this sacred trust, he

not o nly profanes his entire cult but threatens the fabric of international society.”

4 FM 27

- 10, para. 1.

5 Id . at para. 3.

6 History of the Law of WarC. The trend toward regulation grew over time in scope and recognition. When considering whether these rules have validity, the student and the teacher (Judge

Advocates teach ing Soldiers) must consider the objectives of the law of war.

1. The purposes of the law of war are to (1) integrate humanity into war, and (2) serve as a tactical combat multiplier.

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

D. Why respect the Law of War?

1. May motivate the enemy to observe the same rules.

2. May motivate the enemy to surrender.

3. Guards against acts that violate basic te nets of civilization, protects against unnecessary suffering, and safeguards certain fundamental human rights.

4. Provides advance notice of the accepted limits of warfare.

5. Reduces confusion and makes identification of violations more efficient.

6. Help s restore peace.

E. The law of war has two major prongs: Jus ad Bellum and Jus in Bello

.

1. Ju s ad Bellum is the law dealing with conflict management, and how States

initiate armed conflict (i.e., under what circumstances the use of military power is legal ly and morally justified).

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

.

3. Both categories of the law of war have developed over time, drawi ng most of their guiding principles from history. The concepts of Jus ad Bellum and Jus in

Bello developed both unevenly and concurrently. For example, during the majority of the Jus ad Bellum period, most societies only dealt with rules concerning the l egitimacy of using force. Once the conditions were present that

7 History of the Law of Warjustified war, there were often no limits on the methods used to wage war. Eventually, both theories began to evolve together.



### IV. O RIGINS OF 

### J US 

### I N 

### B ELLO AND 

### J US 

### A D 

### B ELLUM

A. Jus in Bello

. This body of law deals with rules that control conduct during the prosecution of a war to ensure that it is legal and moral.

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

- established

rules.

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

3. Ancient India (4 th century B.C.). The Hindu civilization produced a body of

rules codified in the Book of Manu that regulated land warfare in great detail.

4. Similarly, the Old Testament and Koran imposed some limits on how victors could treat the vanquished.

B. Jus ad Bellum

. Law became an early factor in the historical development of warfare. The earliest references to rules regarding war referred to the conditions that ju stified resort to war both legally and morally.

1. The ancient Egyptians and Sumerians (25 th century B.C.) generated rules defining the circumstances under which war might be initiated.

2. The ancient Hittites (16 th century B.C. ) required a formal exchange of letters and demands before initiating war. In addition, no war could begin during the planting season.

3. The Greeks originated of the concept of Jus ad Bellum . A Greek a city

- state was justified in resorting to the use of force if a number of condit ions existed . If

those conditions existed the conflict

, was blessed by the gods and was just ; otherwise, armed conflict was forbidden.

4. The Romans formalized laws and procedures that made the use of force an act of last resort. Rome dispatched envoys t o the State s against whom they had grievances, and attempted to resolve differences diplomatically. The Romans

8 History of the Law of Waralso are credited with developing the requirement for declaring war. Cicero wrote that war must be declared to be just.



### V. T HE 

### H ISTORICAL 

### P ERIODS

A. JUST WAR PERIOD

- JUS AD BELLUM.

1. This period ranged from about 335 B.C.

- 1 800 A.D . The primary ten e t of the period was the determination of a “just cause” as a condition precedent to the use of military force.

2. Just Conduct Valued Over Regulation of Conduct . The law during this period focused upon the first prong of the law of war ( Jus ad Bellum ). If the reason for the use of force was considered to be just, whether the war was prosecuted fairly

and with hu manity was generally not a significant issue.

3. Early Beginnings: Just War Closely Connected to Self

- Defense

. Aristotle (335 B.C.) wrote that war should be employed only to (1) prevent men becoming enslaved, (2) establish leadership which is in the inter ests of the led, or (3) enable men to become masters of men who naturally deserved to be enslaved.

Cicero refined Aristotle ’ s model by stating that “ the only excuse for going to war is that we may live in peace unharmed....”

4. Era of Christian Influence: Divine Justification

. Early church leaders forbade Christians from employing force even in self

- defense. This position became less and less tenable with the expansion of the Christian world. Church scholars

later reconciled the dictates of Christianit y with the need to defend individuals and the State by adopting a Jus ad Bellum position under which recourse to war was just in certain circumstances (6 th century A.D.).

5. Middle Ages

. In his Summa Theologica

, Saint Thomas Aquinas (12 th century A.D.) re fined the Just War theory by establishing the three conditions under which a Just War could be initiated: (a) with the authority of the sovereign; (b) with a just cause (to avenge a wrong or fight in self

- defense); and (c) so long as the fray is entered in to with pure intentions (for the advancement of good over evil). The key element of such an intention was to achieve peace. This was the requisite “pure motive.”

6. Juristic Model.

a. Saint Thomas Aquinas’ work signaled a transition o f Just War doctrine from a concept designed to explain why Christians could bear arms (apologetic) toward the beginning of a juristic model. The concept of Just War initially sought to solve the moral dilemma posed by the tension

9 History of the Law of Warbetween the Gospel and th e reality of war. With the increase in the

number of Christian nation

- states, this concept fostered an increasing concern with regulating war for more practical reasons.

b. The concept of J ust W ar was being passed from the hands of the theologians to the lawyers. Several great European jurists emerged to document customary laws related to warfare. Hugo Grotius (1583

- 1645) produced the most systematic and comprehensive work, On the Law of

War and Peace . His work is regarded as the starting point for the development of the modern law of war. While many of the principles

enunciated in his work were consistent with previous chu rch doctrine, Grotius boldly asserted a non

- religious basis for this law. According to Grotius, the law of war was based not on div ine law, but on recognition of the true natural state of relations among States. Thus, the law of war was based on natural, not divine, law.

7. End of the Just War Period . By the time the next period emerged, Just War doctrine had generated a widely

- reco gnized set of principles that represented the early customary law of war. The most fundamental of these principles are:

a. A decision to wage war can be reached only by legitimate authority (those

who rule, i.e., the sovereign ).

b. A decision to resort to war must be based upon a need to right an actual wrong, in self

- defense, or to recover wrongfully seized property.

c. The intention must be the advancement of good or the avoidance of evil.

d. Except in the case of self

- defense, there must be a reasonable prospect of victory.

e. Every effort must be made to resolve differences by peaceful means before resorting to force.

f. The innocent shall be immune from attack.

g. The amount of force used shall not be disproportionate to the legitimate objective

.

B. JU ST WAR PERIOD

– JUS IN BELLO.

10 History of the Law of War1. Jus in Bello received little attention until late in the Just War period. With the emergence of a Chivalric Code. The chivalric rules of fair play and good treatment only applied if the cause of war was “just” from the be ginning.

2. Victors were entitled to spoils of war, only if war was just.

3. Forces prosecuting an unjust war were not entitled to demand Jus in Bello during the course of the conflict.

4. Red Banner of Total War . Signaled a party ’ s intent to wage absolut e war (Joan

of Arc announced to British that “no quarter will be given”).

C. WAR AS FACT PERIOD

– JUS AD BELLUM.

1. This period, from about 1800

- 1918, saw the rise of the State as the principal actor in foreign relations. States transf ormed war from a tool to achieve justice, into a tool for the legitimate pursuit of national policy objectives.

2. Just War Notion Pushed Aside

. P ositivism

, reflecting the rights and privileges

of the modern State, replaced natur al or moral law principles

. This body of thought held that l aw is based not on some philosophical speculation, but on rules emerging from the practice of State s and international conventions. Basic

Tenet of Positivism : since each State is sovereign, and therefore entitled to

wag e war, there is no international legal mandate, based on morality or nature, to regulate resort to war ( realpolitik replaces justice as the reason to go to war).

War is

, based upon whatever reason

, a legal and recognized right of statehood. In short, if use of military force would help a State achieve its policy objectives, then force may be used.

3. Clausewitz

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

4. Foundation for Upcoming “Treaty Period .” The War as Fact Period appeared as

a dark era for the rule of law. Yet, a number of significant developments signaled the beginning of the next period. Based on the positivist view, the best way to reduce the uncertainty associated with conflict was to codify rule s regulating this area. Intellectual focus began shift toward minimizing resort to war and/or mitigating the consequences of war. National leaders began to join academics in the push to control the impact of war (e.g., Czar Nicholas and

Theodore Roosevel t pushed for the two Hague Conferences that produced the Hague Conventions and Regulations).

11 History of the Law of WarD. WAR AS FACT PERIOD

– JUS IN BELLO.

1. During the War as Fact period, the focus began to change from Jus ad Bellum to
Jus in Bello . With war a recognized and le gal reality in the relations between States, a focus on mitigating the impact of war emerged.

2. Henry Dunant’s A Memory of Solferino (1862)

. A graphic depiction of one of

the bloodiest battles of the Austro

- Sardinian War, it s erved as the impetus for the creation of the International Committee of the Red Cross and the negotiation

of the First Geneva Convention in 1864.

3. Francis Lieber’s Instructions for the Government of Armies of the United States

in the Field (1863) . First moder n restatement of the law of war

, issued in the form of General Order 100 to the Union Army during the American Civil War.

4. International Revulsion to General Sherman’s Total War . Sherman was very concerned with the morality of war. His observation that “W ar is H ell ” demonstrates the emergence and reintroduction of morality. A s his March to the Sea demonstrated, however, Sherman only thought the right to resort to war should be regulated. Once war had begun, he felt it had no natural or legal

limits. In other words

, he recognized only the first prong ( Jus ad Bellum ) of the

law of war.

5. At the end of this period, the major State s held the Hague Conferences (1899

­ 1907) that produced the Hague Conventions. While some Hague law focuses on war avoidance, the majority of the law dealt with limitation of suffering during war.

6. Geneva Conventions (1949) . The f our Conventions that evolved from the earlier conventions of 1864, 1906, and 1929 6 were a comprehensive effort to protect the victims of war.

a. “Wa r” vs. “Armed Conflict

. ” Article 2 common to all four Geneva

Conventions ended this debate. Article 2 asserts that the law of war applies in any instance of international armed conflict.

6 The Convention of 1864 had 10 articles, and provided implicit protections for the wounded and sick soldiers in the field who were out of combat, and the prohibition against attacking neutral personnel

— medical and chaplains

— who were assisting them. The 1906 Geneva Convention had 33 articles and gave explicit protections to the wound ed and sick in the field and added what became GC II by addressing the care and protection of wounded and sick at sea. The 1929 Convention added the Prisoner of War protections that were updated in GC III.

12 History of the Law of Warb. Birth of the Civilians Convention . A post

- war recognition of th e need to specifically address this class of individuals.

c. The four Conventions are considered customary international law. This means that even if a particular State has not ratified the treaties, that State is still bound by the principles within each of the four treaties because they are merely a reflection of customary law that binds all States. As a practical matter, the customary international law status matters little because every State is currently a party to the Conventions.

d. The Conventions are directed at State conduct, not the conduct of

international forces

. In practice, forces operating under U.N. control comply with the Conventions.

e. Clear shift toward a true humanitarian motivation: “the Conventions are coming to be regarded less a nd less as contracts on a basis of reciprocity concluded in the national interest of each of the parties, and more and more as solemn affirmations of principles respected for their own sake .” 7

7. The 1977 Additional Protocols

. These two treaties were nego tiated to supplement the four Geneva Conventions. Protocol I supplement s rules governing international armed conflicts , and Protocol II extend s the protections

of the C onventions as they relate to internal armed conflicts.

E. JUS CONTRA BELLUM PERIOD

.

1. World War I represented a significant challenge to the validity of the “war as fact” theory. Despite th e moral outrage directed toward the aggressors of World

War I , legal scholars unanimously rejected any assertion that initiation of the

war constituted a breach of international law. Nevertheless, w orld leaders struggled to give meaning to a war of unprecedented carnage and destruction.

The “war to end all wars” sentiment manifested itself in a shift in intellectual direction, leading to the conclusion that aggressive use of force must be

outlawed.

2. Jus ad Bellum Changes Shape . Immediately before this period began, the Hague Conferences (1899

- 1907) produced a series of Hague Conventions, which represented the last multilateral treaties that recognized war as a legitimate device of national policy. While Hague law concentrates on war avoidance and limitation of suffering during war, the jus contra bellum period saw a shift toward the absolute renunciation of aggressive war.

7 GC I Commentary at 28.

13 History of the Law of Wara. League of Nations

. First time in history that States agreed upon an obligation under the law not to resort to war to resolve disputes or to secure national policy goals. The Covenant of the League of Nations was designed to impose upon States certain pr ocedural mechanisms prior to imitating war. President Wilson, the primary architect, believed during these periods of delay, peaceful means of conflict management could be brought to bear.

b. Eighth Assembly of League of Nations . Banned aggressive war, w ith questionable legal effect. The League did not attempt to enforce this duty, however, except as to Japan’s invasion of Manchuria in 1931.

c. Kellogg

- Briand Pact (1928)

. Officially referred to as the Treaty for the

Renunciat ion of War, it banned aggressive war. This is the event generally thought of as the “quantum leap”: f or the first time in history, aggressive war is clearly and categorically banned. In contradistinction to the post

- World War I period, this treaty establ ished an international legal basis for the post

- World War II prosecution of those responsible for waging aggressive war. The Kellogg

- Briand Pact remains in force today. Virtually all commentators agree that the provisions of the treaty banning aggressive war have ripened into customary international law.

3. Use of force in self

- defense remained unregulated. No law has ever purported to deny a sovereign the right to defend itself. Some commentators stated that

the use of force in the defense is not war.

F. POST

- WORLD WAR II PERIOD

.

1. The p rocedural requirements of the Hague Conventions did not prevent World

War I

, just as the procedural requirements of the League of Nations and the Kellogg

- Briand Pact did not prevent World War II. World powers recognize d the need for a world body with greater power to prevent war, and international law that provided more specific protections for the victims of war.

2. Post

- World War II War Crimes Trials (Nuremberg, Tokyo, and Manila Tribunals) . The trials of those who v iolated international law during World War II demonstrated that another quantum leap had occurred since World War I.

a. Reinforced ten e ts of Jus ad Bellum and Jus in Bello , and ushered in the era of “universality,” establishing the principle that all State s are bound by the

law of war

, based on the theory that law of war conventions largely reflect customary international law.

14 History of the Law of Warb. International law focused on ex post facto problem during prosecution of

war crimes. The universal nature of law of war prohibit ions, and the recognition that they were at the core of international legal values, resulted in the legitimate application of those laws to those tried for violations.

3. United Nations Charter . Continues the shift to outright ban on war. Extended

the ba n, through Article 2(4), to “the threat or use of force” (emphasis added).

a. Early Charter Period . Immediately after the negotiation of the Charter in 1945, many State s and commentators assumed that the absolute language in the Charter’s provisions permi tted the use of force only if a State had already suffered an armed attack.

b. Contemporary Period . Most States now agree that a State’s ability to defend itself is much more expansive than the provisions of the Charter seem to permit based upon a literal reading. This view is based on the conclusion that the inherent right of self

- defense under customary

international law was supplemented, not displaced , by the Charter. This

remains a controversial issue.



### VI. CONCLUSION

“Wars happen. It is not necessa ry that war will continue to be viewed as an instrument of national policy, but it is likely to be the case for a very long time. Those who believe in the progress and perfectibility of human nature may continue to hope that at some future point reason wi ll prevail and all international disputes will be resolved by nonviolent means . . .

. Unless and until that occurs, our best thinkers must continue to pursue the moral issues related to war. Those who romanticize war do not do mankind a service; those wh o ignore it abdicate responsibility for the future of mankind, a responsibility we all share even if we do not choose to do so.” 8

8 Malham M. Wakin, Intro duction to War and Morality, in W AR

, M ORALITY

, AND THE M ILITARY

P ROFESSION 224 (Malham M. Wakin ed., 2nd rev. ed. 1986).

15 History of the Law of WarHistory of the Law of War 16

## F RAMEWORK OF THE 

## L AW OF 

## W AR

I. O BJECTIVES

A. Become familiar with the language and primary sources of the law of war.

B. Un derstand how the law of war is triggered.

C. Become familiar with the role of the 1977 Additional Protocols to the Geneva

Conventions of 1949.



### II. T HE 

### L ANGUAGE AND 

### P RIMARY 

### S OURCES O F T HE 

### L AW OF 

### W AR

A. The first step in understanding the law of war is to be come familiar with the primary sources and several key terms and concepts that are woven through this body of law.

B. Sources of Law of War . The primary sources of the law of war include customary

international law and treaties. While there are numerous law of war treaties in force today, most fall within two broad categories, commonly referred to as the “Hague Law” or “Hague Tradition” of regulating means and methods of warfare, and the “Geneva Law” or “Geneva Tradition” of respecting and protecting vict ims of warfare.

1. The “Hague Tradition” or Targeting Method

. This prong of the law of war focuses on regulating the means and methods of warfare (i.e., tactics, weapons, and targeting decisions).

a. This method is exemplified by t he Hague law, consisting of the various Hague Conventions of 1899, as revised in 1907, plus the 1954 Hague Cultural Property Convention and the 1980 Certain Conventional Weapons Convention.

b. The rules relating to the means and methods of warfare are prim arily derived from Articles 22 through 41 of the Regulations Respecting the Laws and Customs of War on Land annexed to Hague Convention IV. Article 22 states that the means of injuring the enemy are not unlimited.

c. Treaties . The following treaties, lim iting specific aspects of warfare, are also sources of targeting guidance. These treaties are discussed more fully in the Means and Methods of Warfare section on weapons.

i. Gas . The 1925 Geneva Protocol prohibits use in war of asphyxiating, poisonous, o r other gases. A number of States,

17 Framework of the Law of Warincluding the U.S., reserved the right to respond with chemical weapons to a chemical attack. The 1993 Chemical Weapons Convention, however, prohibits production, stockpiling, and use of chemical weapons, even in retalia tion. The U.S. ratified the CWC in April 1997.

ii. Cultural Property . The 1954 Hague Cultural Property Convention seeks to protect cultural property.

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

iv. Conventional Weapons . The 1980 Certain Conventional Weapons Convention (often referred to as the CCW) restricts or prohibits the

use of certain weapons deemed to cause unnecessary suffering or to

be indiscriminate: Protocol I

- non

- detectable fragments; Protocol II

- mines, booby traps, and other devices; Protocol III

- incendiaries;

Protocol IV

- laser weapons; and Protocol V

- explosive remnants of war. The U.S. has ratified the Convention with certain reservations, declarations, and understandings.

2. The “Geneva Tradition” or Respect and Protect Method

. This prong of the law of war is focused on establishing non

- derogable protections for the “victims of

war.”

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

i. GC I: Wounded and Sick in the Field.

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

iii. GC III: Prisoners of War.

iv. GC IV: Civilians.

b. The Geneva Conventions entered into force on October 21, 1950. The

U. S. ratified the conventions on February 8, 1955. Currently, all existing States are parties to the Geneva Conventions of 1949.

18 Framework of the Law of War3. The “Intersection .” In 1977, two treaties were drafted to supplement the 1949

Geneva Conventions: Additional Protocols I and II.

a. The Protocols were motivated by the International Committee of the Red Cross’s belief that the four Geneva Conventions and the Hague Regulations insufficiently covered certain areas of warfare in the conflicts following World War II, specifically a erial bombardments, protection of civilians, and wars of national liberation. While the purpose of the Protocols was to supplement the Geneva Conventions, they in fact represent a mix of both the Respect and Protect method, and the Targeting

method.

b. St atus . At the time of this writing , 16 8 State s were parties to Protocol I and 164 States were parties to Protocol II. Unlike the Hague and Geneva Conventions, the U.S. has never ratified either of these Protocols. Significant portions, however, reflect customary international law. While there is no complete authoritative list of the Protocol I articles the U.S. currently views as either customary international law (or acceptable practice though not legally binding), or specifically objects to, many

cons ider remarks made in 1987 by Michael J. Matheson, then Deputy Legal Advisor at the Department of State, as the most comprehensive expression of the U.S. position. 1 Note that the views expressed in 1987 may not reflect the current U.S. position on all arti cles.

4. Key Terms.

a. Common Article . This is a critical term used in the law of war. It refers

to a certain number of articles that are identical in all four of the 1949

Geneva Conventions

. Normally these relate to the scope of application and parties ’ obligations under the treaties. Some of the Common Articles are identically numbered, while others are worded virtually the same but numbered differently in various Conventions. For example, the article dealing with special agreements is Article 6 of th e first three Conventions,

but Article 7 of the fourth Convention.

b. Treaty Commentaries . These are works by official recorders to the drafting conventions for the major law of war treaties (Jean Pictet for the 1949 Geneva Conventions). The commentaries provide critical explanations to many treaty provisions, and are therefore similar to legislative history in the domestic context.

1 See Michael J. Matheson, The United States Position on the Relation of Customary International Law to

the 1977 Protocols Additional t o the 1949 Geneva Conventions , 2 A M

. U. J. I NT ’ L L. & P OL ’ Y 419, 420 (1987). This article is summarized in the Documentary Supplement.

19 Framework of the Law of War5. Army Publications . Because these publications are no longer available in printed form they have been compiled, along wit h many other key source documents, in the Law of War Documentary Supplement

.

a. FM 27

- 10, The Law of Land Warfare . Organized functionally by category, and incorporates rules from multiple sources including customary and treaty law. Note that FM 27

- 10 is dated July 1956, with Change 1 dated 15 July 1976.

b. DA Pam 27

- 1, Treaties Governing Land Warfare . A verbatim reprint of the Hague and Geneva Conventions.

c. DA Pam 27

- 1

- 1, Protocols to the Geneva Conventions of 12 August 1949

. A verbatim reprint of the 1977 Additional Protocols to the Geneva

Conventions.



### III. H OW 

### T HE 

### L AW OF 

### W AR 

### I S 

### T RIGGERED

A. The Barrier of Sovereignty . Normally, the concept of sovereignty protects a State from outside interference with its internal affairs. This is exemplified by th e predominant role of domestic law in internal affairs. Whenever international law operates to regulate the conduct of a State, it must pierce the shield of sovereignty. The law of war is therefore applicable only after the requirements for piercing the shield of sovereignty have been satisfied. The law of war is a body of international law intended to dictate the conduct of State actors (typically combatants) during periods of conflict.

1. Once triggered, it intrudes upon the sovereignty of the regulate d State.

2. The extent of this intrusion depends on the nature of the conflict.

B. The Triggering Mechanism . The law of war includes a standard for when it becomes applicable. This standard is reflected in the four Geneva Conventions.

1. Common Article 2

– International Armed Conflict : “ [T]he present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of the m .” Insofar as this is an article common to all four Conventions, its triggering indicates that all four Conventions are thereby applicable.

a. This is a true de facto standard. The subjective intent of the belligerents is

irrele vant. The drafters deliberately avoided the legalistic term “war” in

20 Framework of the Law of Warfavor of the broader principle of armed conflict. According to the GC Commentary, this article was intended to be broadly defined in order to

extend the reach of the Conventions to as m any conflicts as possible.

b. The Commentary states that the law of war applies to “ any difference arising between two States and leading to the intervention of armed

forces. ” Accordingly, the following two facts result in application of the entire body o f the law of war , from the inception of the conflict :

i. A dispute between State s, and

ii. Armed conflict

.

c. Additional Protocol I

. Supplements Common Article 2.

i. This controversial expansion of Common Article 2 expands t he Geneva Conventions’ application to conflicts previously considered

non

- international: “[A]rmed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self de termination.” AP I, art. 1(4).

ii. U.S. has not ratified this treaty because of objections to Article 1(4), among others. The draft of AP I submitted by the International Committee of the Red Cross to the 1974 Diplomatic Conference did

not include the ex pansive application provisions.

d. Termination of Application.

i. Final repatriation (GC I, art. 5; GC III, art. 5).

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

iii. Occupation

. (GC IV, art. 6). GC IV applies for one year after the general close of military operations. In situations where the occupying power still exercises governmental functions, however, that power is bound to apply certain key provisions of GC IV for the duration of the occupation.

2

. Common Article 3

– Internal Armed Co nflict : “Armed conflict not of an international character occurring in the territory of one of the High Contracting

Parties . . . .”

21 Framework of the Law of Wara. These types of conflicts make up the vast bulk of ongoing conflicts.

Whereas the existence of an international armed conflict triggers the entire body of the law of war, the existence of an internal armed conflict only triggers application of Common Article 3’s “mini convention” protections.

b. Providing for the interjection of international regul ation into a purely

internal conflict was considered a monumental achievement for

international law in 1949. But, the internal nature of these conflicts explains the limited scope of international regulation.

i. Domestic law still applies . Unlike combata nts during international armed conflict, guerrillas do not receive immunity for their war

- like

acts.

ii. Lack of effect on legal status of the parties . This is an essential clause, without which there would be no provisions applicable to

internal armed co nflicts within the Conventions. Despite the clear language of the last paragraph of Common Article 3, States have been reluctant to apply Common Article 3 protections explicitly for fear of conferring a degree of international legitimacy on rebels.

c. Wha t is an internal armed conflict? Some conflict is more like isolated acts of violence, riots, or banditry. Although no objective set of criteria exists for determining the existence of a non

- international armed conflict, the Commentary offers non

- binding criteria to judge whether any particular situation rises to the level of armed conflict:

i. Does the group have an organized military force?

ii. Are members of the group subject to some authority?

iii. Does the group control some territory?

iv. Does the g roup demonstrate respect for the law of war? This is more often accepted to mean that the group must not demonstrate an unwillingness to abide by the law of war.

v. Does the government respond to the group with regular armed

forces?

d. Additional Protocol II

. Supplements Common Article 3.

22 Framework of the Law of Wari. Controversial shrinking coverage of law relating to non

- international armed conflict. Intended to supplement the substantive provisions of Common Article 3, AP II formalized the criteri a for the application

of that Convention to a non

- international armed conflict. According to AP II, art. 1, “dissident armed forces or other organized armed groups” must:

A. Be under responsible command.

B. Exercise control over a part of a State so as to enable them to carry out sustained and concerted military operations and to implement the requirements of AP II.

C. How do the Protocols fit in?

1. As indicated, the 1977 Additional Protocols to the 1949 Geneva Conventions are supplementary treaties. AP I is intended to supplement the law of war related to international armed conflict (Common Article 2 conflicts), while AP II is intended to supplement the law of war related to internal armed conflict (Common Article 3 conflicts). Therefore:

a. When you t hink of the law related to international armed conflict, also think of AP I; and

b. When you think of the law related to internal armed conflict, also think of

AP II.

2. Although the U.S. has never ratified either of these Additional Protocols, their

relev ance continues to grow based on several factors:

a. The U.S. has stated it considers many provisions of AP I and almost all of AP II to reflect customary international law.

b. The argument that the entire body of AP I has attained the status of customary i nternational law continues to gain strength.

c. These treaties bind virtually all of our coalition partners.

d. U.S. policy is to comply with Protocols I and II whenever feasible.

D. U.S. policy is to comply with the law of war during all operations, wheth er international armed conflict, internal armed conflict, or situations short of armed

conflict.

23 Framework of the Law of War1. DoD Directive 2311.01E (9 May 2006), DoD Law of War Program, requires all members of the armed forces to “comply with the law of war during all armed

confli cts, however such conflicts are characterized, and in all other military operations.” 2

2. CJCSI 5810.01C (31 Jan 2007), which implements the DoD Law of War Program, similarly states that “[t]he Armed Forces of the United States comply

with the law of war d uring all armed conflicts, however . . . characterized, and in all other military operations.” 3

E. What is the relationship between the law or war and human rights? Human Rights Law refers to a totally distinct body of international law, intended to prima rily protect individuals from the arbitrary or cruel treatment by their own governments

. While

the substance of human rights protections may be synonymous with certain law of war protections, it is critical to remember these are two distinct bodies of int ernational law. The law of war is triggered by conflict. No such trigger is required for human rights law. These two bodies of international law are easily confused, especially

because of the use of the term “international humanitarian law” to describe certain portions of the law of war.

2 DoD Directive 2311.01E (May 9, 2006) supersedes the language in DoD Directive 5100.77 (Dec 9,

1998

– now canceled) tha t required members of the armed forces to “comply with the law of war during all armed conflicts, however such conflicts are characterized, and with the principles and spirit of the law of war during all other operations.” DoD Directive 2311.01E is reprin ted in the Documentary Supplement.

3 This instruction is reprinted in the Documentary Supplement.

24 Framework of the Law of War

## L EGAL 

## B ASIS 

## F OR 

## T HE 

## U SE 

## O F 

## F ORCE

I. O BJECTIVES

A. Understand the international legal prohibition against the threat or use of force as found in Article 2(4) of the United Nations (UN) Charter (the “rule”).

B. Understan d enforcement action taken by the UN Security Council pursuant to Chapter VII of the UN Charter (“exception #1”).

C. Understand the “inherent right of self

- defense” as found in Article 51 of the UN Charter (“exception #2”).



### II. I NTRODUCTION

A. General

. T here are a variety of internationally

- recognized legal bases for the use of force in relations between States, found in both customary and treaty law. Generally speaking, however, modern jus ad bellum (the law governing a State’s resort to force) is refle cted in the United Nations (UN) Charter. The UN Charter provides two bases for the resort to force: Chapter VII enforcement actions under the auspices of the UN Security Council, and self

- defense pursuant to Article 51 (which governs acts

of both individ ual and collective self

- defense).

B

. Policy and Legal Considerations

.

1. Before committing U.S. military force abroad, decision

- makers must make a number of fundamental policy determinations. The President and the national civilian leadership must be sens itive to the legal, political, diplomatic, and economic factors inherent in a decision to further national objectives through the use of force. The legal aspects of such a decision, both international and domestic, are of primary concern in this determina tion. Any decision to employ force must rest upon the existence of a viable legal basis in

international law as well as in domestic law (including application of the 1973 War Powers Resolution (WPR), Public Law 93

- 148, 50 U.S.C. §§ 1541

- 1548). This chapter will focus exclusively on the international legal basis for the use of

force.

2. Though these issues will normally be resolved at the national political level, Judge Advocates (JAs) must understand the basic concepts involv ed in a determination to use force abroad. Using the mission statement provided by higher authority, JAs must become familiar with the legal justification for the mission and, in coordination with higher headquarters, be prepared to brief all

local comman ders on that legal justification. This will enable commanders to

25 Legal Basis for the Use of Forcebetter plan their missions, structure public statements, and conform the conduct of military operations to U.S. national policy. It will also assist commanders in

dra fting and understanding mission

- specific Rules of Engagement (ROE) which authorize the use of force consistent with national security and policy objectives.

3. The JA must also remember that the success of any military mission abroad will likely depend upon the degree of domesti c support demonstrated during the initial deployment and sustained operation of U.S. forces. A clear, well

conceived, effective, and timely articulation of the legal basis for a particular mission is essential to sustaining support at home and gaining

acc eptance abroad.

C

. Article 2(4): The General Prohibition Against the Use of Force

.

1. The UN Charter mandates that all member States resolve their international disputes peacefully, 1 and requires that they refrain in their international relations

from the threat or use of force against the territorial integrity or political independence of any State

. 2 This ban on aggression, taken from Article 2(4) of the UN Charter, is regarded as the heart of the UN Cha rter and the basic rule of contemporary public international law. 3 Complementing Article 2(4) is the principle of non

- intervention, which provides that the United Nations, and implicitly all other States

, must refrain from interference in other States’

in ternal affairs. 4 Put simply, non

- intervention stands for the proposition that States must respect each other’s sovereignty

.

2. American policy statements have frequently affirmed the principle of non

intervention, and it has been made an integral part of U.S. law through the ratification of the Charters of the United Nations and the Organization of American States (OAS), 5 as well as other multilateral international agreements

1 UN Charter, Article 2(3): “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security a nd justice are not endangered.” The UN Charter is reprinted in the Documentary Supplement.

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

3 See 1 T HE C HARTER OF THE U NITED N ATIONS : A C OMMENTARY 117 (Bruno Simma ed., Oxford Univ. Press 2nd ed., 2002).

4 UN Charter, Article 2(7): “Nothing contained in the present Charter shall authorize the United Natio ns to intervene in matters which are essentially within th e domestic jurisdiction of any S tate or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforc emen t measures under Chapter VII .”

5 OAS Charter, Article 18: “No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. The foregoing principle

26 Legal Basis for the Use of Forcewhich specifically incorporate non

- intervention as a basis for mutual cooperation . The emerging concept of humanitarian intervention , however, has watered down the principle of non

- intervention and respect for State sovereignty in circumstances when the State is unable or unwilling to avert a humanitarian catastrophe or is itself resp onsible for massive violations of human rights against its citizens. 6



### II I

. T HE 

### L AWFUL 

### U SE OF 

### F ORCE

A . General

. Despite the UN Charter’s broad legal prohibitions against the use of force and other forms of intervention, specific exceptions exist that jus tify a State’s

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

self

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

B

. UN Enforcement Action (Chapter VII)

.

prohibits not only armed force but also any other form of interference or attempted threat against the personality of the State or against its political, economic and cultural elements.” Charter of the Organization of American States art. 18, Apr. 30, 1948, 119 UNT S 3, 2 UST 2394, available at http://www.oas.org/dil/treaties_A

- 41_Charter_of_the_Organiza tion_of_American_States.htm

. See also

Inter

- American Treaty of Reciprocal Assistance (Rio Treaty), Art. 1 : “. . . Parties formally condemn war and undertake in their international relations not to resort to the threat or the use of force in any manner

in consistent with the provisions of the Charter of the United Nations or this Treaty.” Inter

- American Treaty of Reciprocal Assistance art. 1 , Sept. 2, 1947, 62 Stat. 1681, 21 U.N.T.S. 77

, available at http://www.oas.org/juridico/English/treaties/b

- 29.html

.

6 See Report of the International Commission on Intervention and State Sovereignty, December 2001 (“ Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling o r unable to halt or avert it, the principle of non

- intervention yields to the international responsibility to protect

. ” ) The United States does not accept humanitarian intervention as a separate basis for the use of force; however, the United Kingdom has expressed support

for it. See Lord Goldsmith

, Attorney General, Iraq: Resolution 1441, para. 7 (Mar. 7, 2003) (secret memo to Prime Minister, released Apr

. 28, 2005), available at http://www.number

10.gov.uk/files/pdf/Iraq%20Resolution%201441.pdf

.

7 As stated above, a minority of States would include humanitarian intervention as a separate exception to the rule of Article 2(4). In addition, consent is sometimes stated as a separate exception. However, if a State is using force with the consent of a host State, then there is no violation of the host State’s territorial integrity or political independence, meaning there is no need for an exception to the rule as i t is not being

violated.

27 Legal Basis for the Use of Force1. The UN Security Council

. The UN Charter grants the UN Security Council a powerful role in determining the existence of an illegal threat or use of force

, and wide discretion in mandating or authorizing a response to such a threat or use of force (enforcement). The unique role is grounded primarily in Chapter

VII of the UN Charter which demonstrates the Charter’s strong pr eference for collective responses to the illegal use of force over unilateral actions in

self

- defense . Chapter V of the UN Charter establishes the composition and powers of the Security Council. The Security Council includes five permanent

members (China , France, Russia, the United Kingdom, and the United States)

and ten non

- permanent, elected members. Article 24 states that UN members “confer on the Security Council primary responsibility for the maintenance of international peace and security” and, in Article 25, members “agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”

2. Chapter VII of the UN Charter , entitled “Action With Respect to Threats to the Peace, Breaches of the Peace, and Acts of Ag gression,” gives the UN Security Council authority to label as illegal threats and uses of force

, and then to determine what measures should be employed to address the illegal behavior. Before acting, the Security Council must first, in accord ance with Ar ticle 39, determine/label the existence of a threat to the peace, a breach of the

peace , or an act of aggression. Provided it makes such a determination, the UN Charter gives the Security Council the ability to do one of three things: 1)

make recommendat ions pursuant to Article 39; 2) mandate non

- military measures (i.e., diplomatic and economic sanctions) pursuant to Article 41; or 3) mandate military enforcement measures (“action by air, land, or sea forces”) pursuant to Article 42.

a. Article 39 , the sa me article whereby the Security Council performs its “labeling” function, allows the Council to make non

- binding recommendations to maintain or restore international peace and security. Because Article 42 has not operated as intended ( see infra ), some hav e grounded UN Security Council “authorizations” to use military force in Article 39 (as non

- binding permissive authorizations) vice Article 42 (as binding mandates). 8

b. Article 41 lists several non

- military enforcement measures designed to

restore interna tional peace and security. These include “complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.” Article 41 measures are stat ed as a “decision” (mandate) , binding on all UN members . Article 42 implies that Article

8 See Y ORAM D INSTEIN

, W AR

, A GGRESSION AND S ELF

- D EFENCE 310

- 15 (4 th ed. 2005).

28 Legal Basis for the Use of Force41 measures must be attempted (or at least considered) before the Security Council adopts any of the military measures available to it.

c. Article 42 contemplated tha t the Security Council would be able to mandate military action by forces made available to it under special agreements with UN member States. However, because no Article 43 special agreement has ever been made, Article 42 has not operated as

envisioned. This means that the Security Council is unable to mandate military enforcement action in response to illegal threats or uses of force. Consequently, military measures taken pursuant to Chapter VII are fundamentally permissive, phrased by the Security Cou ncil in the

form of an authorization to member States rather than a mandate

.

3. UN Peacekeeping and Peace Enforcement Operations

. In the absence of special agreements between member States and the Sec urity Council, UN peacekeeping operations enable the Security Council to carry out limited enforcement actions through member States on an ad hoc , voluntary basis. While these operations were traditionally grounded in Chapter VI of the UN Charter, which d eals with peaceful means of settling disputes, today more peace operations are considered peace enforcement operations and carry with them a Chapter VII authorization from the Security Council. The authorization that accompanies these operations

is usuall y narrowly worded to accomplish the specific objective of the peace operation. For example, UN Security Council Resolution (UNSCR) 794 (1992) authorized member States to use “all necessary means to establish, as soon as possible, a secure environment for humanitarian relief operations in Somalia.”

4

. Regional Organization Enforcement Actions . Chapter VIII of the UN Charter recognizes the existence of regional arrangements among States that deal with such matters relating to the maintenance of internationa l peace and security, as are appropriate for regional actions (Article 52). Regional organizations, such as the OAS, African Union, and the Arab League, attempt to resolve regional disputes peacefully, before referral to the UN Security Council. Regional organizations do not, however, have the ability to unilaterally authorize the use of force (Article 53)

. Rather, the Security Council may utilize the regional organization to carry out Security Council enforcement actions. In other words, regional organ izations are subject to the same limitation on the use

of force as are individual States.



### IV

. S ELF



### - D EFENSE

A. Generally

.

1. The right of all nations to defend themselves was well

- established in CIL prior to adoption of the UN Charter. Article 51 of the Charter provides:

29 Legal Basis for the Use of ForceNothing in the present Chapter shall impair the inherent right of individual

or collective self

- defense if an armed attack occurs against a member of the UN until the Security Council has taken measures necessary to maintain international peace and security. . . .

2. The questions that inevitably arise in conjunction with the UN Charter’s “codified” right of self

- defense involve the scope of authority found therein. Does this right, as th e language of Article 51 suggests, exist only after a State has suffered an “armed attack,” and then only until the Security Council takes

effective action? Did the UN Charter thus limit the customary right of self

defense in such a way that eliminated th e customary concept of anticipatory self

- defense ( see infra ) and extinguished a State’s authority to act independently of the Security Council in the exercise of self

- defense? Some in the international community advocate a restrictive approach based on th e text of Article 51. Others argue that the customary right of self

- defense was not extinguished by Article 51 of the UN Charter.

3. Those in the international community who advocate a restrictive interpretive approach to Article 51 argue that reliance up on customary concepts of self

defense, to include anticipatory self

- defense, is inconsistent with the clear language of Article 51 and counterproductive to the UN goal of peaceful resolution of disputes and protection of international order.

4. In contrast , some States, including the United States, argue that an expansive interpretation of the UN Charter is more appropriate, contending that the customary law right of self

- defense (including anticipatory self

- defense) is an

“ inherent ” right of a sovereign St ate that was not “negotiated” away under the

Charter. Because contemporary experience has demonstrated the inability of the Security Council to deal effectively with acts and threats of aggression, these States argue that, rather than artificially limitin g a State’s right of self

defense, it is better to conform to historically

- accepted criteria for the lawful use of force, including circumstances which exist outside the “four corners” of the

Charter.

B. Self

- Defense Criteria: Necessary and Proportional

.

1. It is well

- accepted that the UN Charter provides the essential framework of authority for the use of force, effectively defining the foundations for a modern jus ad bellum . Inherent in modern jus ad bellum is the customary requirement

that all uses of force be both necess ary and proportional. 9

9 It should be noted that necessity and proportionality mean different things in jus ad bellum and jus in

bello

. Jus ad bellum defines these terms for p urposes of using force whereas j us in bello (law of war)

30 Legal Basis for the Use of Force2. In order to comply with the necessity criterion, States must consider the exhaustion or ineffectiveness of peaceful means of resolution, the nature of coercion applied by the aggr essor State, the objectives of each party, and the likelihood of effective community intervention . In other words, force should be

viewed as a “last resort.”

3. In order to comply with the proportional force criterion, States must limit the magnitude, scope, and duration of any use of force to that level of force which is reasonably necessary to counter a threat or attack

. 10

C. Types of Self

- Defense

.

1. Individual Self

- Defense

. The inherent right of individual self

- defe nse is the most prototypical of the different types of self

- defense that a State may rely on to justify a use of force. W ithin the bounds of both the UN Charter and customary practice, the inherent right of individual self

- defense has primarily found expr ession in three recurring areas: 1) protection of a nation’s territorial integrity ; 2) protection of a nation’s political independence ; and 3) protection of

nationals and their property located abroad. Judge Advocates must be familiar

with these foundati onal issues, as well as basic concepts of self

- defense, as they relate to overseas deployments and operations, such as the Chairman of the Joint Chiefs of Staff (CJCS) Standing Rules of Engagement (SROE) 11 and the response to State

- sponsored terrorism.

a. P rotection of Territorial Integrity

. States possess an inherent right to protect their national borders, airspace, and territorial seas. No nation has the right to violate another nation’s territorial integrity, and force may be used to preserve that inte grity consistent with the customary and the Article 51 right of self

- defense.

b. Protection of Political Independence

. A State’s political independence is a direct attribute of sovereignty, and includes the right to select a particular form of government and its officers, the right to enter into treaties, and the right to maintain diplomatic relations with the world community. The rights of sovereignty or political independence also include the freedom to engage in trade and other economic activity. Cons istent with the

defines these terms for purposes of targeting analysis. See the chapter on Means and Methods of Warfare in this deskbook for the a description of jus in bello

.

10 Some commentators have discussed imm ediacy as a separate criterion; however, it would seem appropriate to view timeliness of a State’s response as a factor in determining whether that response is truly necessary.

11 An extract of the Standing Rules of Engagement is reprinted in the Documentar y Supplement.

31 Legal Basis for the Use of Forceprinciples of the UN Charter and CIL, each State has the duty to respect the political independence of every other State. Accordingly, force may be used to protect a State’s political independence when it is threatened

and all other avenue s of peaceful redress have been exhausted.

c. Protection of Nationals

. Customarily, a State has been afforded the right to protect its citizens abroad if their lives are placed in jeopardy and the host State is either unable or unwilling to protect them. This right is cited as the justification for non

- combatant evacuation operations (NEO )

. 12

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

ii. The right to use forc e to protect citizens abroad also extends to those situations in which a host State is an active participant in the activities posing a threat to another State’s citizens ( e.g.
, the government of Iran’s participation in the hostage

- taking of U.S. embassy p ersonnel in that country in 1979

- 81; and Ugandan President Idi Amin’s support of terrorists who kidnapped Israeli nationals and held them at the airport in Entebbe in 1976 ).

2. Collective Self

- Defense

. Also referred to in A rticle 51, the inherent right of

collective self

- defense allows victim States to receive assistance from other States in responding to and repelling an armed attack. To constitute a legitimate

act of collective self

- defense, all conditions for the exercis e of an individual State’s right of self

- defense must be met, along with the additional requirement

that assistance must be requested by the victim State . There is no recognized right of a third

- party State to unilaterally intervene in internal conflicts where the issue in question is one of a group’s right to self

- determination and there is no request by the de jure government for assistance.

a. Collective Defense Treaties and Bilateral Military Assistance Agreements

.

12 Non

- combatant evacuation operations are discussed more fully in the Operational Law Handbook.

32 Legal Basis for the Use of Forcei. Collective defense treaties, such as that of the North Atlantic Treaty Organization (NATO); the Inter

- American Treaty of Reciprocal Assistance (the Rio Treaty); the Security Treaty Between Australia, New Zealand, and the United States (ANZUS); and other similar agreements do not provide an international legal basis for the use of

U.S. force abroad, per se. These agreements simply establish a commitment among the parties to engage in “collective self

- defense” as required by specified situations, and provide the framework through which such measures are to be taken. From an international law perspective, a legal basis for engaging in measures involving the use of military force abroad must still be established from other

sources of international law extrinsic to these collective defense

trea ties (i.e.

, there still must be a justifiable need for collective self

defense, or UN Security Council authorization to use force).

ii. The United States has entered into bilateral military assistance

agreements with numerous countries around the world. T hese are not defense agreements, and thus impose no commitment on the part of the United States to come to the defense of the other signatory State in any given situation. Moreover, such agreements, like collective defense treaties, also provide no intrin sic legal basis for the use of military force.

3. Anticipatory Self

- Defense

. As discussed above, some States embrace an interpretation of the UN Charter that extends beyond the black letter language of Article 51, under t he CIL principle of “anticipatory self

- defense.” Anticipatory self

- defense justifies using force in anticipation of an “imminent” armed attack. Under this concept, a State is not required to absorb the “first hit”

before it can resort to the use of force in self

- defense to repel an imminent

attack.

a. Anticipatory self

- defense finds its roots in the 1837 Caroline case and subsequent correspondence between then

- U.S. Secretary of State Daniel Webster and his British Foreign Office counterpart

, Lord Ashburto n. Secretary Webster posited that a State need not suffer an actual armed attack before taking defensive action, but may engage in anticipatory self

defense if the circumstances leading to the use of force are “instantaneous, overwhelming, and leaving no choice of means and no moment for deliberation.” As with any form of self

- defense, any use of force based on the customary right of anticipatory self

- defense must be both necessary and proportional.

b. Because the invocation of anticipatory self

- defense i s fact

- specific in nature, and therefore appears to lack defined standards of application, it remains controversial in the international community. Concerns over

33 Legal Basis for the Use of Forceextension of anticipatory self

- defense as a pretext for reprisal or preventive actions ( i.e.

, the use of force before the coalescence of an actual threat) have not been allayed by contemporary use. It is important to note, however, that anticipatory self

- defense serves as a foundational element in the CJCS SROE, as embodied in the concept of “hos tile intent,” which makes it clear to commanders that they do not, and should

not

, have to absorb the first hit before their right and obligation to exercise

self

- defense arises.

c. Preemptive Use of Force . In the 2002 National Security Strategy (NSS),

th e U.S. Government took a step toward what some view as a significant expansion of use of force doctrine from anticipatory self

- defense to preemption. 13 This position was reinforced in the 2006 NSS, which reaffirmed the doctrine of preemptive self

- defense a gainst “rogue states and their terrorist clients” who pose a threat to the United States based on their expressed desire to acquire and use weapons of mass destruction. 14
The “Bush doctrine” of preemption basically re

- cast the right of anticipatory self

- de fense based on a different understanding of

imminence . Thus, the NSS stated, “We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries.” It concluded: “The greater the threat, the gr eater is the risk of inac tion

— and the more compelling the case for taking action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s

attack.” 15

d. A modern

- day legal test for imminence, consistent with the above, was perhaps best articulated by Professor Michael Schmitt in 2003. He stated that States may legally employ force in advance of an attack, at the point when (1) evidence shows that an aggressor has committed itself to an armed attack, and (2) delaying a response would hinder the defende r’s ability to mount a meaningful defense. 16

e. Anticipatory self

- defense, whether labeled anticipatory or “preemptive,” must be distinguished from preventive self

- defense. Preventive self

defense

— employed to counter non

- imminent threats

— is clearly illegal under international law

.

13 The White House, The National Security Strategy of the United States of America (2002).

14 The White House, The National Security Strategy of the United States of America (2006).

15 Id . at 15.

16 Michael Schmitt, Preemptive Strategies in International Law

, 24 M ICH

. J. I NT ’ L L. 513, 534 (2003).

34 Legal Basis for the Use of ForceD. Self

- Defense Against Non

- State Actors

. Up to now, this chapter has discussed armed

attacks launched by a State. Today, however, States have reasons to fear armed

attacks launched by non

- state actors from a State. The law is still grappling with this reality. While the answer to this question may depend on complicated questions of state responsibility, many scholars base the legality of cross border attacks against non

- state actor s on whether the “host” State is unwilling or unable to
deal with the non

- state actors who are launching armed attacks from within its territory

. 17 Some scholars have posited that a cross border response into a “host” State requires the “victim” State to m eet a higher burden of proof in demonstrating the criteria that establish the legality of a State’s use of force in self

- defense. 18

17 See D INSTEIN

, supra note 8, at 244

- 46.

18 See Michael Schmitt, Responding to Transnational Terrorism Under the Jus Ad Bellum: A Normative

Framework , 56 N AVAL L. R EV

. 1 (2009).

35 Legal Basis for the Use of ForceLegal Basis for the Use of Force 36

## G ENEVA 

## C ONVENTION 

## I: W OUNDED AND 

## S ICK IN THE 

## F IELD

I. O BJECTIVES

A. Understand the importance of GC I’s protections for th e wounded and sick in the

field.

B. Recognize the beneficiaries of GC I’s protections.

C. Understand the obligations GC I imposes on the belligerents.

D. Recognize the different status given to medical personnel and chaplains and the implications of such s tatus, including the protections they are afforded, and the difference between being retained vice being a prisoner of war.

E. Understand the protections afforded to medical facilities/units/transports/aircraft.

F. Recognize the distinctive emblems which e njoy the Convention’s protections, as well as the additional distinctive emblem introduced by AP III.

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

the armed forces at sea.

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



### II. I NTRODUCTION

A. Background

.

1. Henry Dunant’s book “ A Memory of Solferino

, ” published in 1859, served as a catalyst in Europe to discuss the treatment of wounded and s ick on the

battlefield.

a. Led to 1863 Conference in Geneva.

b. The Conference resulted in the 1864 Geneva Convention, which U.S. ratified in 1882. Key provisions include:

i. Military ambulances and hospitals are neutral.

37

GC I: Wounded and Sickii. Medical p ersonnel and Chaplai ns are neutral. Repatriation is the

rule.

iii. Wounded must be cared for. Repatriation if incapable of further service and agree not to take up arms again.

2. Updated in 1906 (followed shortly by the X th Hague Convention of October 18, 1907, for the adap tion to Maritime Warfare of the principles of the Geneva

Convention of 1906. The X th Hague convention was replaced in 1949 by a new Geneva Convention related to the shipwrecked (GC II). ( See GC II, art. 58).

3. Updated again in 1929, adding a new Geneva Convention related to POWs.

4. Updated again in 1949, adding yet another Convention related to civilians (GC IV).

5. Most recently updated in 1977 by AP I for international armed conflicts, and by

AP II for non

- international armed conflicts.

a. The U.S. si gned both AP I and AP II , but there is no indication that the

U.S. will ratify them any time soon, especially since the U.S. has expressed its opposition to certain provisions.

b. Despite the fac t that the U.S. has not ratified these treaties, understanding AP I and II is important for at least two reasons: (1) Certain provisions of AP I and AP II are considered customary international law, and therefore binding on the U.S.; and (2) many U.S. coal ition partners have ratified AP I and II and therefore may have different legal obligations than the U.S. during a combined operation.

c. AP I, Part II

, concerns “Wounded, sick and shipwrecked” in international armed conflict. It developed the protections and obligations contained within GC I and II in a number of ways, including:

i. Defined the terms, which was not done in GC I and II;

ii. Recognized that civilian medical personnel and units shall receive the same protection as that formerly reserved for military medical personnel and units;

iii. Confirmed and extended the humanitarian role of the civilian population and of relief societies;

38

GC I: Wounded and Sickiv. Extended the scope of the protection for medical transportation by air by developing the procedures required to invoke this right;

v. Introduced the right of families to be informed of the fate of their relatives and develop ed the provisions concerning missing persons

and the remains of the deceased.

d. AP II, Part III

, concerns “Wounded, sick and shipwrecked” in no n

international armed conflict and supplements AP II, Part II (Humane Treatment). This Part reiterates the essential substance of AP I, Part II, but taking into account the particular context of non

- international armed conflict. It develops the protectio ns and obligations contained within Common Article 3, attempting to make explicit what were implicit in that article’s very simple statements.

B. Geneva Conventions

– Scope of Application . The purpose of this section is to provide a brief review of when t he Geneva Conventions become applicable. Students should consult the chapter on the Framework of the Law of War, elsewhere in this deskbook, for a more in

- depth discussion. When conducting a legal analysis applying the Geneva Conventions, one starting po int for the analysis could be to answer the following two questions: (1) In what type of conflict are the parties engaged? ; and (2) What type of person is the subject of the analysis?

1. Geneva Trigger: What Type of Conflict ? All four Geneva Conventions of 1949 have “common articles,” which are verbatim in each . Common Article 2 , is singularly important in that it set s up all four Conventions with an “either/or” condition/trigger:

a. Either it i s an international armed conflict (IAC), in which case Common

Article 2 states that the Geneva Conventions apply in their entirety

.

b. Or it i s a non

- international conflict (NIAC), in which case Common

Article 3 states that, although the Geneva Conventions do n o t a pply, there

are still certain minimum protections (discussed infra ) which do apply.

c. Note 1: Both IAC and NIAC

— as suggested by their terms

— depend upon a state of armed conflict being attained. If not attained, that is, if there is no armed conflict, no part of the Conventions apply as a matter of law. However, the U.S. may still apply the Conventions by policy, as discussed

below.

d. Note 2: For States party to AP I, article 1(4) expands the scope of IAC to “include armed conflicts which peoples are fig hting against colonial domination and alien occupation and against racist regimes in the exercise

39

GC I: Wounded and Sickof their right of self

- determination.” This expansion is one of the reasons

the U.S. has not ratified AP I.

e. Note 3: For States party to AP II, article 1 r estricts the scope of NIAC to conflicts of a certain degree of intensity over that provided by Common

Article 3. 1 The U.S. opposes this contraction of protection.

2. Geneva Trigger: What Type of Person ? A legal analysis involving the Geneva

Conventions m ust not only inquire into the nature of the conflict (as discussed above), but must also ask what is the type of person that is the subject of the analysis? Since each Convention, and parts of those Conventions, protect different types of persons, an unde rstanding of the person’s identity and role in the armed conflict is required to determine their associated legal protections.

a. So, for instance, civilians are primarily protected by GC IV, while the protections governing a shipwrecked sailor would gener ally be found in

GC II.

b. The types of persons protected by GC I will be discussed below. However, the point made here is that persons who do not fit into a GC I category are not legally protected by that particular Convention, but might be protected by another. For example, a shipwrecked sailor , initially protected by GC II, who is sick or wounded is protected by GC I once put ashore; once he recovers, he is protected as a POW by GC III.

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

C. Definitions.

1. The term “ wounded and s ick ” is not defined in GC I or II. Concerned that any definition would be misinterpreted, the drafters decided that the meaning of the words was a matter of “common sense and good faith.” 2 However, AP I, art. 8(1), contains the following definition of “wounded” and “sick”: “Persons, whether military or civilian, who, because of trauma, disease or other physical

1 See AP Commentary at 1348

.

2 GC I Commentary at 136.

40

GC I: Wounded and Sickor mental disorder or disability, are in need of medical assistance or care and who refrain from any act of hostility.”

2. “ Shipwrecked ” is also not defined in GC II, though it includes shipwrecks “from any cause and includes forced landings at sea by or from aircraft.” ( GC
II, art. 12 ) . AP I, art. 8(2) provides a more detailed definition of “shipwrecked”

to mean “ persons, whethe r military or civilian, who are in peril at sea or in other waters as a result of misfortune affecting them or the vessel or aircraft carrying

them .”

D. General Substantive Protections.

1. NIAC and Common Article 3 Protections for the Wounded and Sick . Co mmon Article 3, also known as the “Mini

- Convention” because it alone provided protections in NIAC, does include some protections for the wounded and sick.

a. “Persons . . . placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.” (Common Article 3, para. 1)

b. “The wounded and sick shall be collected and cared for. ” (Common

Article 3, para. (2) )

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

2. IAC and Protections for the Wounded and Sick . In a Common Article 2 conflict, the full GC I (and GC II for those at sea) are applicable. It is with these protections that the remainder of this chapter will be c oncerned. The protections can be summarized as consisting of three pillars:

a. Treatment of the wounded and sick;

b. Protections for personnel aiding the wounded and sick;

c. Distinctive emblems/symbols to identify prote cted personnel, units

, and

establishments.

41

GC I: Wounded and Sick

### III. C ATEGORIES OF 

### W OUNDED AND 

### S ICK

A. Protected Persons . Note that the title of GC I

— Geneva Convention for the

Amelioration of the Condition of the Wounded and Sick in Armed Forces in the

Field

— implies that its application is limited to Armed Forces. This is largely, though not entirely, true. Article 13 sets for th those persons protected by GC I. This article

is the same as GC III, art. 4; therefore, the analysis to determine whether the person is protected b y GC I is identical to the analysis of whether the person is entitled to POW status under GC III, art. 4. Students should refer to the deskbook chapter on

Geneva Convention III

– Prisoners of War

, for a more detailed discussion of these categories

.

B. Oth er Persons . Wounded and sick persons who do not qualify under any of the categories in GC I, art. 13, will be covered as civilians by GC IV.

1. GC IV, art. 16, provides: “The wounded and sick, as well as the infirm, and expectant mothers, shall be the obj ect of particular protection and respect.”

a. This coverage of civilians is qualified by the following language in GC
IV, art. 16: “ As far as military considerations allow , each Party to the

conflict shall facilitate the steps taken to search for the killed and wounded, to assist the shipwrecked and other persons exposed to grave danger, and to protect them against pillage and ill

- treatment” (emphasis added). This recognizes the fact that saving civilians is the responsi bility of the civilian authorities rather than of the military. The military is not required to provide injured civilians with medical care in a combat zone. However, once the military starts to provide treatment, the provisions of GC I apply. 3

b. It is U. S. policy that “[c]ivilians who are injured, wounded, or become sick as a result of military operations may be collected and provided initial medical treatment in accordance with theater policies.” 4

3. AP I, art. 8(a), however, expressly includes civilians within its definition of “wounded and sick.” Though the U.S. is not bound by AP I, practitioners should be wary of treating wounded and sick civilians in a manner different from wounded and sick combatants. Given the GC IV protections and the developmen t of the law by AP I, as a practical matter, all wounded and sick,

3 Dept. of Army, Field Manual 4

- 02, Force Health Protection in a Global Environment, p ara. 4

- 4.e (Feb. 13, 2003) (h ereinafter F M 4

- 02).

4 Dept. of Army, Field Manual 4

- 02.6, The Medical Company Tactics, Techniques, and Procedures, para.

A

- 4 (August 2002) ( h ereinafter FM 4

- 02.6) (emphasis added).

42

GC I: Wounded and Sickmilitary and civilian, in the hands of the enemy must be respected and protected. ( See also FM 27

- 10, para. 208 )

4. The rules applicable to civilians connected with medical transports may vary depending on whether such persons accompany the armed forces ( GC III , art. 4.A.(4)), are members of the staff of voluntary aid societies either of a belligerent State ( GC I , art. 26) or of a neutral State ( GC I , art

. 27), or are

civilians not otherwis e protected by GC I or GC III (GC IV, art. 4 ).



### IV. THE HANDLING OF THE WOUNDED AND SICK

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

1. General: “Members of the armed forces and other persons mentioned in the following Article, who are wounded or sick, shall b e respected and protected in

all circumstances.” ( GC I, art. 12, para. 1 (emphasis added) )

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

3. Protect : to come to someone’s defense; to lend help and support. The enemy has an obligation to come to the aid a fallen and unarmed soldier and give him such care as his condition requires. ( See GC I Commentary at 135 )

4. These duties apply “in all circumstances.” Military considerations do not permit any lesser degree of treatment.

B. Standard of Care

. (GC I, art. 12). Protected persons “shall be treated humanely and cared for by the Party to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religi on, political opinions, or any other similar criteria.” ( GC I, art. 12 ) . Thus the standard is one of humane

treatment: “[E]ach belligerent must treat his fallen adversaries as he would the wounded of his own army.” ( GC I Commentary at 137)

C. Order of Treatment

. (GC I, art. 12)

1. No adverse distinction may be made in providing care, other than for medical

reasons. ( GC I, art. 12 ) . Medical personnel must make the decisions regarding medical priority on the basis of their medical ethics. ( See also AP I, art. 10 )

43

GC I: Wounded and Sicka. May not discriminate against wounded or sick because of “sex, race, nationality, religion, political opinions, or any other similar criteria.” ( GC

I , art. 12)

b. Note the use of the term “adv erse” permits favorable distinctions, e.g., taking physical attributes into account, such as children, pregnant women, the aged, etc.

2. “ Only urgent medical reasons will authorize priority in the order of treatment

to be administered.” ( GC I, art. 12 )

. Designed to strengthen the principle of equal treatment articulated above.

a. Treatment is accorded using triage principles which provide the greatest medical assets to those with significant injuries who may benefit from treatment, while those wounded who will die no matter what, and those whose injuries are not life

- threatening, are given lesser priority.

b. The U.S. applies this policy at the evacuation stage, as well as at the treatment stage. Sick, injured, or wounded enemy are treated and

evacuated t hrough normal medical channels, but can be physically segregated from U.S. or coalition patients. Subject to the tactical situation and available resources, enemy personnel will be evacuated from the combat zone as soon as possible. Only those injured, si ck, or wounded enemy who would run a greater health risk by being immediately evacuated may be temporarily kept in the combat zone. 5

3. Triage Categories: 6

a. Immediate . Condition demands immediate resuscitative treatment. Generally the pr ocedures are short in duration and economical in terms of medical resources. Example: control of a hemorrhage from an extremity. [Note: NATO divides this category into two groups: Urgent: quick short duration life saving care, which is first priority ; and Immediate: which require longer duration care to save a life.]

b. Delayed . Treatment can be delayed for 8

- 10 hours without undue harm. Examples: Soft tissue injuries requiring debridement; maxillofacial injuries without airway compromise; eye and central nervous system injuries.

5 See FM 4

- 02.6

, para. A

- 2.

6 See id . at para. C

- 3; see also Dept. of Army, Field Manu al 8

- 42, Combat Health Support in Stability Operations and Support Operations, para. J

- 3 (Oct

. 27

, 1997).

44

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

d. Expectant . Injuries are so extensive that even if they were the sole casualty, survival would be unlikely. Treatment will address pain and

discomfort.

4. The wounded and sick “shall not willfully be left without medical assistance and care, no r shall conditions exposing them to contagion or infection be

created.” ( GC I, art. 12 )

a. The first prohibition stems from a recognition that wounded personnel, who had not yet received medical treatment, were profitable subjects for interrogation. Duri ng World War II, the Germans frequently delayed medical treatment until after interrogation at their main aircrew interrogation center. Such conduct is now expressly forbidden.

b. The second prohibition was designed to counter the German practice of

seali ng off Russian POW camps once typhus or tuberculosis was

discovered.

D. Abandoning Wounded and Sick to the Enemy

. (GC I, art. 12)

1. If, during a retreat, a commander is forced to leave behind wounded and sick,

the comm ander is required to leave behind medical personnel and material to

assist in their care.

2. “[A]s far as military considerations permit”

– provides a limited military necessity exception to this requirement. Thus a commander need not leave

behind medical personnel if such action will leave his unit without adequate medical staff. Nor can the enemy refuse to provide medical care to abandoned enemy wounded on the grounds that the enemy failed to leave behind medical personnel. The detaining power ultimate ly has the absolute respect and protect obligation. ( See GC I Commentary at 142)

E. Search for Casualties

. (GC I, art. 15)

1. Search, Protection, and Care

. (GC I, art. 15)

a. “At all times, and particularly after an engagement.” Parties have an ongoing obligation to search for the wounded and sick as conditions

45

GC I: Wounded and Sickpermit . The commander determines when it is possible to do so. This mandate applies to all casualties, not just friendly casualties.

i. The drafter s recognized that there were times when military operations would make the obligation to search for the fallen impracticable. ( See GC I Commentary at 151)

ii. By way of example, U.S. policy during Operation Desert Storm was

not to search for casualtie s in Iraqi tanks or armored personnel carriers because of concern about unexploded ordnance.

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

b. The protection requirement refers to preventing pillage of the wounded by the “hyenas of the battlefield.”

c. C are refers to the requirement to render first aid.

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

.

2. Suspensions of Fire and Local Agreements

. (GC I, art. 15)

a. Suspensions of fire are agreements calling for ceasefires that are sanctioned by the Convention to permit the combatants to remove, transport, or exchange the wounded, sick and the dead. Such exchanges of wounded and sick between parties did occ ur to a limited extent during

World War II. ( See GC I Commentary at 155 )

b. Suspensions of fire were not always possible without negotiation and, sometimes, the involvement of staffs up the chain of command. Consequently, local agreements, an innovat ion in the 1949 Convention to broaden the practice of suspensions of fire by authorizing similar agreements at lower command levels, are sanctioned for use by local on

scene commanders to remove or exchange wounded and sick from a besieged or encircled are a, as well as the passage of medical and religious personnel and equipment into such areas. GC IV, art. 17, contains similar

7 The Commander’s Handbook on the Law of Naval Operations, NWP 1

- 14M, para. 11.6 (2007).

46

GC I: Wounded and Sickprovisions for civilian wounded and sick in such areas. It is this type of agreement that was used to permit the passage of medic al supplies to the city of Sarajevo during the siege of 1992.

F. Identification of Casualties

. (GC I, arts. 16

- 17)

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

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

this role.

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

a. Death certificates.

b. Identification disc.

c. Important documents, e.g., wills, money, etc., found on the body.

d. Person al property found on the body.

4. Handling of the Dead.

a. Examination of bodies (a medical examination, if possible) is required to confirm death and to identify the body. Such examinations can play a dispositive role in refuting allegations of war crime s committed against individuals. Thus, they should be conducted with as much care as possible.

b. No cremation (except for religious or hygienic reasons).

c. Honorable burial . Individual burial is strongly preferred; however, there is a military necessit y exception which permits burial in common graves, e.g., if circumstances, such as climate or military concerns, necessitate it. ( See GC I Commentary at 177)

47

GC I: Wounded and Sickd. Mark and record grave locations.

G. Voluntary Participation of Local Population in Relief Efforts

. (GC I, art. 18)

1. Commanders may appeal to the charity of local inhabitants to collect and care for the wounded and sick. Such actions by the civilians must be voluntary. Similarly, commanders are not ob liged to appeal to the civilians.

2. Spontaneous efforts on the part of civilians to collect and care for the wounded and sick are also permitted.

3. Ban on the punishment of civilians for participation in relief efforts . This provision arose from the fac t that the Germans prohibited German civilians from aiding wounded airmen.

4. Continuing obligations of occupying power . Thus, the occupant cannot use the employment of civilians as a pretext for avoiding their own responsibilities for

the wounded and sic k. The contribution of civilians is only incidental. ( See GC I Commentary at 193)

5. Civilians must also respect the wounded and sick. This is the same principle discussed above (GC I, art. 12) vis

- à

- vis armed forces. This is the only article

of th e Convention that imposes a duty directly on civilians. ( See GC I Commentary at 191)



### V. S TATUS AND 

### P ROTECTION OF 

### P ERSONNEL 

### A IDING THE 

### W OUNDED AND 

### S ICK

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

wounded and sick.

1. First category : Medical personnel exclusively engaged in the search for, or the collection, transport or treatment of the wounded or sick, or in the prevention of disease; staff exclusively engaged in the administration of medical units and establishments; chaplains attached to the armed forces (GC I, art. 2 4); and personnel of national Red Cross/Red Crescent Societies and other recognized relief organizations (GC I, art. 26).

a. Respect and protec t “in all circumstances.” (GC I, art. 2 4). This means that they must not knowingly be attacked, fired upon, or unnecessarily prevented from discharging their proper functions. The accidental killing or wounding of such personnel, due to their presence among or in proximity to combatant elements actually engaged, by fire directed at the latter, gives no just cause for complaint. ( FM 27

- 10, para. 225 )

48

GC I: Wounded and Sickb. Status upon capture: Retained Personnel

, not POWs. (GC I, art. 2 8)

i

. This was a new provision in the 1949 convention. The 1864 and 1906 conventions required immediate repatriation. The 1929 convention also required repatriation, absent an agreement to retain medical personnel. During World War II, the use of these

agre ements became extensive, and very few medical personnel were repatriated. Great Britain and Italy, for example, retained 2 doctors, 2 dentists, 2 chaplains, and 12 medical orderlies for every 1,000

POWs.

ii. The 1949 convention institutionalized this proc ess. Some government experts proposed making medical personnel regular POWs, the idea being that wounded POWs prefer to be cared for by their countrymen who speak the same language. The other camp, favoring repatriation, cited the traditional principle o f inviolability

— that medical personnel were non

- combatants. W hat resulted was a compromise: medical personnel were to be repatriated, but if needed to treat POWs, they were to be retained and treated at least as well as

POWs. ( See GC I Commentary at 238

- 40)

iii. Note that medical personnel may only be retained to treat POWs. Under no circumstances may they be retained to treat enemy personnel. While the preference is for the retained persons to treat POWs of their own nationality, the language is su fficiently broad to permit retention to treat any POW. ( See GC I Commentary at 241)

c. Repatriation of Medical Personnel

. (GC I, arts. 30

- 31)

i. Repatriation is the rule; retention the exception. Medical perso nnel are to be retained only so long as required by the health and spiritual

needs of POWs and then are to be returned when retention is not indispensable. 8

ii. GC I, art. 3 1, states that selection of personnel for return should be irrespective of race , religion or political opinion, preferably according to chronological order of capture

— first

- in/first

- out approach.

8 See GC I Commentary at 260

- 261. Since World War II, th is is one of the least honored provisions of the convention. U.S. medical personnel in Korea and Vietnam were neither repatriated nor given retained

person status. See Memorandum of W. Hays Parks to Director, Health Care Operations reprinted in T HE
A RMY L AWYER , April 1989, at 5.

49

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

d. Treatment of Medical Personnel

. (GC I, art. 2 8)

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

ii. They will receive at least all benefits conferred on POWs, e.g., pay, monthly allowance s, correspondence privileges.

iii. They are subject to camp discipline.

e. Relief . Belligerents may relieve doctors retained in enemy camps with personnel from the home country. (GC I, art. 2 8). During World War II some Yugoslavian and French doctor s in German camps were relieved. ( See GC I Commentary at 257)

f. Continuing obligation of detaining power (GC I, art. 2 8). The detaining power is bound to provide, free of charge, whatever medical attention the POWs require.

2. Second category : Auxiliary medical support personnel of the Armed Forces

. (GC I, arts. 25 and 29)

a. These are personnel who have received special training in other medical specialties (e.g., orderlies, stretcher bearers) in addition to performing other military duties. (While Article 2 5 specifically refers to nurses, nurses are Article 24 personnel if they meet the “exclusively engaged” criteria of that article.)

b. Respect and protect: when acting in their medical capacity. (GC I, art. 2 5)

c. Status upon capture: POWs; however, must be employed in medical capacity insofar as a need for their special training arises. (GC I, art. 2 9)

9 See Army Regulation 190

- 8/OPNAVINST 3461.6/AFJI 31

- 304/MCO 3461.1, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees (Nov.1, 1997).

50

GC I: Wounded and Sickd. Treatment

. (GC I, art. 2 9)

i. When not performing medical duties, shall be treate d as POWs.

ii. When performing medical duties, they remain POWs, but receive treatment under GC III, art. 3 2 as retained personnel; however, they are not entitled to repatriation.

iii. Auxiliaries are not widely used

. 10

iv. The U.S. Army does not have a ny personnel who officially fall into the category identified in Article 2 5. 11

3. Third category : Personnel of aid societies of neutral countries

. (GC I, art. 27

and 32)

a. Nature of assistance: procedural requireme nts

. (GC I, art. 2 7)

i. Consent of neutral government.

ii. Consent of party being aided.

iii. Notification to adverse party.

b. Retention prohibited: must be returned “as soon as a route for their return is open and military considerations permit.” ( GC I, art. 3 2)

c. Treatment pending return: must be allowed to perform medical work. (GC I, art. 3 2)



### VI. M EDICAL 

### U NITS AND 

### E STABLISHMENTS

A. Protection.

10 But see W. Hays Parks memorandum, supra note 8 , for discussio n of certain U.S. personnel, who de facto , become auxiliary personnel

. See also FM 4

- 02 at para. 4

- 5b (discusses this same issue and points

out that Article 2 4 personnel switching between medical and non

- medical duties at best places such

individuals in the auxiliary category).

11 See W. Hays Parks memorandum, supra note 8. Air Force regulations do provide for these personnel.

See Bruce T. Smith, Air Force Medical Personnel and the Law of Armed Conflict , 37 A. F. L. R EV . 242 (1994).

51

GC I: Wounded and Sick1. Fixed Establishments and Mobile Medical Units

. (GC I, art. 19)

a. May not be attacked, provided they do not abrogate their status.

b. Commanders are encouraged to situate medical units and establishments away from military objectives. See also AP I, art. 12, which state s that medical units will, in no circumstances, be used to shield military objectives from attack.

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

d. GC I does not confer immunity from search by the enemy on medical units, establishments, or transports. (FM 27

- 10, para. 221)

2. Discontinuance of Protection

. (GC I, art. 2 1)

a. Medical units/establishments lose protection if committing “acts harmful to the enemy.” Acts harmful to the enemy are not only acts of warfare proper, but also any activity characterizing combatant action, such as setting up observation posts, or the use of the hospital as a liaison cente r for fighting troops. ( See FM 27

- 10, para. 258 ) . Other examples include using a hospital as a shelter for combatants, or as an ammunition dump. ( See GC I Commentary at 200

- 201)

b. Protection ceases only after a warning has been given, and it remai ns unheeded after a reasonable time to comply. A reasonable time varies depending on the circumstances, e.g., no time limit would be required if fire is being taken from the hospital. ( See GC I Commentary at 202)

c. AP I, a rt. 13, extends this same s tandard to civilian hospitals.

3. Conditions not depriving medical units and establishments of protection : (GC I, art. 2 2)

a. Unit personnel armed for their own defense against marauders and those violating the law o f war, e.g., by attacking a medical unit. Medical personnel thus may carry small arms, such as rifles or pistols for this

52

GC I: Wounded and Sickpurpose. In contrast, placing machine guns, mines, LAAWS, etc., around

a medical unit would cause a loss of protection. 12

b. Self

- Def ense Defined

. Although medical personnel may carry arms for

self

- defense, they may not employ such arms against enemy forces acting in conformity with the law of war. These arms are for their personal defense and for the protection of the wounded and sic k under their charge against persons violating the law of war. Medical personnel who use their arms in circumstances not justified by the law of war expose themselves to penalties for violation of the law of war and, provided they have been given due warn ing to cease such acts, may also forfeit the protection of the medical unit or establishment of which they form part or which they are protecting. ( See FM 27

- 10, para. 223)

c. Unit guarded by sentries . Normally medical units are guarded by their

own pers onnel. It will not lose its protection, however, if a military guard attached to a medical unit guards it. These personnel may be regular members of the armed force, but they may only use force in the same circumstances as discussed in the previous parag raph. 13

d. Small arms and ammunition taken from wounded may be present in the unit. However, such arms and ammunition should be turned in as soon as practicable and, in any event, are subject to confiscation. ( FM 27

- 10,

para. 223)

e. Presence of personnel from the veterinary service.

f. Provision of care to civilian wounded and sick.

B. Disposition of Captured Buildings and Material of Medical Units and Establishments.

1. Mobile Medical Units

. (GC I, art. 3 3)

a. Material of mobile medical units, if ca ptured, need not be returned. This was a significant departure from the 1929 Convention which required

mobile units to be returned.

b. But captured medical material must be used to care for the wounded and sick. First priority for the use of such materia l is the wounded and sick in

12 FM 4

- 02

, sup ra note 3, at para. 4

- 8.

13 Id

.

53

GC I: Wounded and Sickthe captured unit. If there are no patients in the captured unit, the material may be used for other patients. 14

2. Fixed Medical Establishments

. (GC I, art. 3 3)

a. The captor has no obligation to restore this property to the enemy

— he can maintain possession of the building, and its material becomes his property. However, the building and the material must be used to care for wounded and sick as long as a requirement exists.

b. Exception: “in case of urgent military neces sity,” they may be used for other purposes.

c. If a fixed medical establishment is converted to other uses, prior arrangements must be made to ensure that wounded and sick are cared for.

Medical material and stores of both mobile and fixed establishments “shall not be intentionally destroyed.” No military necessity exception.



### VII. M EDICAL 

### T RANSPORTATION

A. Medical Vehicles

— Ambulances

. (GC I, art. 3 5)

1. Respect and protect: Medical vehicle s may not be attacked if performing a

medical function.

2. These vehicles may be employed permanently or temporarily on such duties

, and they need not be specially equipped for medical purposes. ( See GC I Commentary at 281 ) . As ambulances are not alw ays available, any vehicles may be adapted and used temporarily for transport of the wounded. During that time they will be entitled to protection, subject to the display of the distinctive emblem. Thus military vehicles going up to the forward areas wit h ammunition may bring back the wounded, with the important reservation the emblem must be detachable, e.g., a flag, so that it may be flown on the downward journey. Conversely military vehicles may take down wounded and bring up military supplies on the return journey. The flag must them be removed on the return journey.

3. Key issue for these vehicles is the display of the distinctive emblem, which accords them protection.

14 See GC I Commentary at 274; see also FM 4

- 02

, supra note 3, at para. 4

- 6.

54

GC I: Wounded and Sicka. Camouflage scenario: Belligerents are only under an obligation to respect

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

b. Display the emblem only when the vehicle is being employed on medical work. Misuse of the distinctive symbol is a war crime. ( See FM 27

- 10 at para. 504)

4. Upon capture, these vehicles are “subject to the laws of war.”

a. Captor may use the vehicles for any purpose. However, the material of mobile medical units falling into the hands of the enemy must be used only for the care of the wounded and sick, and does not constitute war booty, until GC I ceases to be operative. ( See FM 27

- 10, para. 234)

b. If the vehicles are used for non

- medical purposes, the captor must ensure proper care of the wounded and sick they contained, and, of course, ensure that the distinctive markings have been removed.

B. Medical Aircraft

. (GC I, art. 3 6)

1. Definition: Aircraft exclusively employed for the removal of wounded and sick and for the transport of medical personnel and equipment.

2. Protection.

a. Marked with protected emblem.

b. However, protection ultimately depends on an ag reement : medical aircraft are not to be attacked if “flying at heights, times and on routes specifically agreed upon between the belligerents.” (GC I, art. 36). The differing treatment accorded to aircraft, as opposed to ambulances, is a

function of the ir increased mobility and consequent heightened fears about their misuse. Also the speed of modern aircraft makes identification by color or markings useless. Only previous agreement could afford any real safeguard.

15 See FM 4

- 02

, supra note 3, at para. 4

- 6.

55

GC I: Wounded and Sickc. Without such an agreement, belliger ents use medical aircraft at their own

risk. 16

d. Aircraft may be used permanently or temporarily on a medical relief mission; however, to be protected it must be used “exclusively” for a medical mission during its relief mission. ( See GC I Commentary at 289 )

. This raises questions as to whether the exclusivity of use refers to the aircraft’s entire round trip or to simply a particular leg of the aircraft’s route. The point is overshadowed, however, by the ultimate need for an agreement in order to en sure protection. The GC I Commentary also says “exclusively engaged” means flying without any armament. 17

e. Reporting information acquired incidentally to the aircraft’s humanitarian mission does not cause the aircraft to lose its protection. Medical personnel are responsible for reporting information gained through casual observation of activities in plain view in the discharge of their duties. This does not violate the law of war or constitute grounds for loss of protected status. For example, a M edevac aircraft could report the presence of an enemy patrol if the patrol was observed in the course of their regular mission and was not part of an information gathering mission outside their

humanitarian duties.

f. Flights over enemy or enemy

- occupied t erritory are prohibited unless agreed otherwise.

3. Summons to land.

16 See GC I Commentary at 288; FM 4

- 02

, supra note 3, at para. 4

- 6. This was certainly the case in Vietnam where “any air ambulance pilot who served a full one year tour could expect to have his aircraft hit at least once by enemy fire. ... Most of the Viet Cong and North Vietnamese clearly considered the air ambulances just another target.” P ETER D ORL AND AND J AMES N ANNEY

, D UST O FF : A RMY
A EROMEDICAL E VACUATION IN V IETNAM 85

- 86 (1982). Medical aircraft (and vehicles) took fire from Panamanian paramilitary forces (DIGBATS) during Operation Just Cause. C ENTER FOR A RMY L ESSONS

L EARNED

, O PERATION JUST CAU SE: L ESSONS L EARNED , p. III

- 14, (October 1990). By contrast, in the Falklands each of the hospital ships (four British and two Argentinean) had one dedicated medical aircraft with Red Cross emblems. Radar ID was used to identify these aircraft because of visibility problems. Later it was done by the tacit agreement of the parties. Both sides also used combat helicopters extensively, flying at their own risk. No casualties occurred. S YLVIE

- S TOYANKA J UNOD

, P ROTECTION

OF THE V ICTIMS OF THE A RMED C ONFLICT IN THE F ALKLAND S 26

- 27 (1984).

17 See also AP I, art. 28(3); Dept. of Army, Field Manual 8

- 10

- 6, Medical Evacuation in a Theater of Operations

– Tactics, Techniques, and Procedures, para. A

- 4 (Apr. 14, 2000) (the mounting or use of offensive weapons on dedicated Medevac vehicles and aircraft jeopardizes the protection afforded by the

C onventions. Offensive weapons include, but are not limited to, machine guns, grenade launchers, hand grenades, and light anti

- tank weapons).

56

GC I: Wounded and Sicka. Means by which belligerents can ensure that the enemy is not abusing its

use of medical aircraft

— must be obeyed

.

b. Aircraft must submit to inspection by the forces of the summoning Pa rty.

c. If not committing acts contrary to its protected status, medical aircraft may

be allowed to continue.

4. Involuntary landing.

a. Occurs as the result of engine trouble or bad weather. Aircraft may be used by captor for any purpose. M ateriel will be governed by the provisions of GC I, arts. 33 and 34. ( See GC I Commentary at 293)

b. Personnel are Retained or POWs, depending on their status.

c. Wounded and sick must still be cared for.

5. The inadequacy of GC I, art. 3 6, in light of growth of use of medical aircraft, prompted an overhaul of the regime in AP I (A P I, a rts

, 24

- 31).

a. Establishes three overflight regimes:

i. Land controlled by friendly forces (AP I, art. 2 5): No agreement between the parties is required for the aircraft to be respected and protected ; however, the article recommends that notice be given, particularly if there is a SAM threat.

ii

. Contact Zone (disputed area) (AP I, art. 2 6): Agreement required for absolute protection. However, enemy is not to attack once aircraft

identified as medical aircraft.

iii

. Land controlled by enemy (AP I, art. 2 7): Overflight agreement required. Similar to GC I, art. 3 6(3) requirement.

b

. Bottom line: Known medical aircraft shall be respected and protected when per forming their humanitarian functions.

c

. Optional distinctive signals, e.g.

, radio signals, flashing blue lights, electronic identification, are all being employed in an effort to improve

identification. (AP I, Annex I, Chapter 3)

57

GC I: Wounded and SickC. Hospital ships

. Military hospital ships, which are to be marked in the manner specified by GC II, art. 43, may in no circumstances be attacked and captured but must be respected and protected, provided their names and descriptions have been

notified to the Parties to the conflict ten days before those ships are employed. (GC I, art. 20; GC II , art. 22)

1. Hospital ships must be used exclusively to assist, treat, and transport the wounded, sick, and shipwrecked. The protection to which hospital ships ar e entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy. (GC II, art. 34)

2. Traditionally, hospital ships could not be armed, although crew members could carry light individual weapons for t he maintenance of order, for their own defense, and that of the wounded, sick, and shipwrecked. However, due to the changing threat environment in which the Red Cross symbol is not recognized by various hostile groups and actors as indicating protected st atus, the United States views the manning of hospital ships with defensive weapons systems,

such as anti

- missile defense systems or crew

- served weapons to defend against

small boat threats

, as prudent force protection measures, analogous to arming

crew mem bers with small arms, and consistent with the humanitarian purpose of hospital ships and the duty to safeguard the wounded and sick. 18

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

codes” be understood t o not include modern encryption communication

systems. 19

4. Coastal Rescue Craft . Small craft employed by a State or by the officially recognized lifeboat institutions for coastal rescue operations are to be respected and protected, so far as operational r equirements permit. ( GC II , art. 27)

5. Any hospital ship in a port which falls into the hands of the enemy is to be authorized to leave the port. ( GC II , art. 29 )

18 NWP 1

- 14M, supra note 7, at para. 8.6.3.

19 Id

.

58

GC I: Wounded and Sick6. Retained Personnel and Wounded and Sick Put Ashore

. The religious, medical, and hospit al personnel of hospital ships retained to care for the wounded and sick are, on landing, subject to GC I

. ( GC II , art. 37)

. Other forces put ashore become subject to GC I

. ( GC II , art. 4 )



### VIII. D ISTINCTIVE 

### E MBLEMS

A. Emblem of the Conve ntions and Authorized Exceptions

. (GC I, art. 3 8)

1. Red Cross . The distinctive emblem of the conventions.

2. Red Crescent . Authorized exception.

3. Red Lion and Sun . Authorized exception employed by Iran, al though it has since been replaced by the Red Crescent

.

4. Red Crystal

. On 14 January 2007, the Third Additional Protocol to the 1949 Geneva Conventions (AP III) entered into force. The United States is a party

to AP III , w hich established an additional emblem

— the red crystal

— for use by

Governments and the International Red Cross and Red Crescent Movement. Under international law, the red crystal offers the same protection as the red cross and the red crescent when marking military medical personnel, establishments and transport; the staff of national societies; staff, vehicles and

structures of the ICRC and the International Federation.

B. Unrecognized symbols . The most well

- known is the red “Shield of David” of Israel. While the 1949 diplomatic conference considered adding this symbol as an exception, it was ultimately rejected. Several other nations had requested the recognition of new emblems, and the conference became concerned about the da nger of substituting national or religious symbols for the emblem of charity, which must be neutral. There was also concern that the proliferation of symbols would undermine the universality of the Red Cross and diminish its protective value. ( See GC I

C ommentary at 301 ) . In the various Middle East conflicts involving Israel and Egypt, however, the “Shield of David” has been respected. 20

C. Identification of Medical and Religious Personnel

. (GC I, art. 40)

20 See FM 4

- 02

, supra note 3, at para. 4

- 6.

59

GC I: Wounded and Sick1. Note the importance of these identificati on mechanisms. The two separate and distinct protections given to medical and religious personnel are, as a practical matter, accorded by the armband and the identification card. 21

a. The armband provides protection from intentional attack on the battlefie ld.

b. The identification card indicates entitlement to “retained person” status.

2. Permanent medical personnel, chaplains, personnel of National Red Cross and other recognized relief organizations, and relief societies of neutral countries

. (GC I, art. 40)

a. Armband displaying the distinctive emblem.

b. Identity card: U.S. uses DD Form 1934 for the ID cards of these personnel.

c. Confiscation of ID card by the captor prohibited. Confiscation renders determination of “retained person” status extremely difficult.

3. Auxiliary personnel

. (GC I, art. 41)

a. Armband displaying the distinctive emblem in miniature.

b. ID documents indicating special training and temporary character of

medical duties.

D. Marking of Medical Units an d Establishments

. (GC I, art. 42). The distinctive flag of the Convention (e.g., the Red Cross) may be hoisted only over such medical units and establishments as are entitled to be respected under GC I. It may be accompanied by the national flag of the Party to the conflict. However, if captured, the unit will fly only the Red Cross flag.

E. Marking of Medical Units of Neutral Countries

. (GC I, art. 43)

1. Shall fly the Red Cross flag, national flag, and the flag of belligerent being

assisted.

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

21 See id . at para. 4

- 5.

60

GC I: Wounded and SickF. Authority over the Emblem

. (GC I, art. 3 9). Article 3 9 makes it clear that the use of the emblem by medical personnel, transportation, and units is subject to “competent

militar y authority.” The commander may give or withhold permission to use the emblem, and the commander may order a medical unit or vehicle camouflaged. ( See GC I Commentary at 308 ) . While the Convention does not define who is a competent military authorit y, it is generally recognized that this authority is held no lower than the brigade commander (generally O

- 6) level. 22

G. The emblem of the red cross on a white ground and the words “Red Cross” or “Geneva Cross” may not be employed, either in time of peace or in time of war

, except to indicate or to protect the medical units and establishments, the personnel and material protected by GC I and other Conventions dealing with similar matters. (GC I, art. 44 (which also lists exceptions to the rule). See also AP I , art. 38, and AP II, art. 12, which prohibit the improper use of the distinctive emblems, such as the red cross)

H. “The use by individuals, societies, firms or companies . . . of the emblem . . . shall be prohibited at all times .” (GC I, art. 53)



### F O R 

### F URTHER 

### R EADING 

### :

A. Joint Chiefs of Staff, Joint Publication 4

- 02, Health Service Support (31 October 2006).

B. Dept. of Army, Field Manual 4

- 02.1, Combat Health Logistics (September 2001).

22 See id. at para. 4

- 6.

61

GC I: Wounded and SickGC I: Wounded and Sick 62

## G ENEVA 

## C ONVENTION 

## III: P RISONERS OF 

## W AR

I. O BJECTIVES

A. Beco me familiar with the historic influences on the development of protections for prisoners of war (POWs) during periods of armed conflict.

B. Understand the legal definition of “ prisoner of war, ” and the test for determining

when that status is conferred

.

C. Identify the law intended primarily for the benefit of:

1. Combatants during international armed conflict ;

2. Combatants during internal armed conflict ; and

3. Detainees during ANY type of conflict

.



### II. H ISTORY O F 

### P RISONERS O F 

### W AR

A. “In ancient times, th e concept of “prisoner of war” 1 was unknown and the defeated

became the victor’s ‘chattel.’” 2 The captive could be killed, sold, or put to work and the discretion of the captor. No one was as helpless as an enemy prisoner of war. 3

1 See W ILLIAM F LORY

, P RISONERS OF W AR : A S TUDY IN THE D EVELOPMENT OF I NTERNATIONAL L AW (1942) (providing a more detailed account of prisoner of war treatment through antiquity )

.

2 GC III Commentary at 4.

3 Probably the most famous medieval prisoner of war was England's Richard I of Robin Hood fame. King Richard's ship sank in the Adriatic Sea during his return from the Third Crusade in 1192. Whi le crossing Europe in disguise, he was captured by Leopold, Duke of Austria. Leopold and his ally

, the Holy Roman Emperor, Henry VI, entered into a treaty with Richard on St. Valentine's Day, 1193, whereby England would pay them £100,000 in exchange for t heir king. This amount then equaled England's revenues for five years. The sum was ultimately paid under the watchful eye of Richard's mother, Eleanor of Aquitaine, and he returned to English soil on March 13, 1194. See M. Foster Farley, Prisoners for P rofit:

Medieval I ntrigue Q uite often F ocused upon H opes of R ich R ansom , M IL

. H ISTORY (Apr. 1989), at 12.

Richard’s confinement by Leopold did seem to ingrain some compassion for future prisoners of war he captured. Richard captured 15 French knights in 11 98. He ordered all the knights blinded but one. Richard spared this knight one eye so he could lead his companions back to the French army. This was considered an act of clemency at the time. M AJOR P AT R EID

, P RISONER OF W AR (1984).

63 GC III: Prisoners of WarB. Greek, Roman, and E uropean theologians and philosophers began to write on the subject of POW s. However, treatment of POW s was still by and large left to military

commanders. 4

C. The American War of Independence . For the colonists, it was a revolution. For the British, it was an insurrection. To the British, the colonists were the most dangerous

of criminals

, traitors to the empire, a nd threat s to state survival, and preparations were made to try them for treason. However, British forces begrudgingly recognized the

coloni sts as belligerents and no prisoner was tried for treason. Colonists that were captured were, however, subject to inhumane treatment and neglect. There were individual acts of mistreatment by American forces of the British and Hessian captives; however, General Washington appears to have been sensitive to, and to have had genuine concern for POWs. He took steps to prevent abuse. 5

D. The first agreement to establish prisoner of war (POW) treatment guidelines was probably in the 1785 Treaty of Friendship b etween the U.S. and Prussia. 6

E. American Civil War . At the outset, the Union forces did not view the Confederates as professional S oldiers deserving protected status. They were considered nothing more than armed insurrectionists. As southern forces beg an to capture large numbers of Union prisoners, it became clear to Abraham Lincoln that his only hope for securing humane treatment for his troops was to require the proper treatment of

Confederate Soldiers. President Lincoln issued General Orders No. 10 0, “Instructions of the Government of Armies of the United States in the Field,” known as the Lieber Code, after its author, Francis Lieber.

1. Although the Lieber Code went a long way in bringing some humanity to warfare, many traditional views regarding POWs prevailed. For example, Article 60 of the Code provides: “ a commander is permitted to direct his troops

4 See generally

, Rev . Robert F. Grady, The Evolution of Ethical and Legal Concern for the Prisoner of
War, Sacred Studies in Sacred Theology N. 218, The Ca tholic University of America. (o n file with the TJAGLCS library) [hereinafter Grady].

5 J OHN C. M ILLER

, T RIUMPH OF F REEDO M (1948); R EV

. R. L IVESAY

, T HE P RISONERS OF 1976; A R ELIC

OF T HE R EVOLUTION C OMPILED FROM THE J OURNAL OF C HARLES H ERBERT (1854); S YDNEY G EORGE

F ISHER

, T HE S TRUGGLE FOR A MERICAN I NDEPENDENCE (1908).

6 See H OWARD S. L EVIE

, 60 I NTERNATIONAL L AW S TUDIES

, D OCUM ENTS ON P RISONERS OF W AR 8 (1979) [hereinafter Levie, D OCUMENTS ON P RISONERS OF W AR ] (providing additional test interpreting the Third Geneva Convention).

64 GC III: Prisoners of Warto give no quarter, in great straits, when his own salvation makes it impossible to cumber himself with prisoners. ” 7

2. Confederate policy called for captured black S oldiers to be returned or sold into slavery and for white Union officers serving with black troops to be prosecuted for “exciting servile insurrection.” 8 Captured blacks that could not prove they were free blacks were sold into slavery

. Free blacks were not much better off. They were treated like slaves and forced to perform labor to support the Confederate war effort. In response to this policy, Article 58 of the Lieber Code stated that the Union would take reprisal for any black PO Ws sold into slavery by executing Confederate prisoners. Very few Confederate prisoners were executed in reprisal. However, Confederate S oldiers were often forced into hard labor as a reprisal.

3. The Union and Confederate armies operated a “parole” or p risoner exchange

system. 9 T he Union stopped paroling southern S oldiers for several reasons, most notably its significant numerical advantage. It was fighting a war of

attrition and POW exchanges did not support that effort. This Union decision may have impacted on the poor conditions in southern POW camps because of the additional strain on resources at a time when the Confederate army could barely sustain itself. Some historians point out that the Confederate POW guards were living in conditions only s lightly better than their Union captives. 10

4. Captured enemy have traditionally suffered great horrors as POWs. Most

Americans associate POW maltreatment during the Civil War with the Confederate camp at Andersonville. However, maltreatment was equally b rutal at Union camps. In fact, in the Civil War 26,486 Southerners and 22,576 Northerners died in POW camps. 11

7 See id. at 39 ; George B. Davis, Doctor Francis Lieber’s Instructions for the Government of Armies i n the Field, 1 A M

. J. I NT ’ L L. 13 (1907) ( providing a summary of who Doctor Francis Lieber was and t he evolution of the Lieber Code).

8 Vol. V, The War of the Rebellion: A Compilation of t he Official Records of t he Union a nd Confederate

Armies at 807

- 808 ( Gov. Printing Office 1880

- 1901).

9 The Dix

- Hill Cartel was signed and ratified by both sides on the Civil War on July 22, 1862. It lasted

until 1863 , failing primarily because of C onfederate refusals to parole black POWs

, and parolees returning to the bat tlefield too quickly. See H ENRY P B EERS

, T HE C ONFEDERACY

, G UIDE TO THE
A RCHIVES OF THE G OVERNMENT OF THE C ONFEDERATE S TATES OF A MERICA 234 (GSA 1986).

10 R EV

. J. W ILLIAM J ONES

, C ONFEDERATE V IEW O F T HE T REATMENT OF P RISONER (1876).

11 Over one

- half of the No rthern POWs died at Andersonville. See Lewis Lask and James Smith, 'Hell and the Devil': Andersonville and the Trial of Captain Henry Wirz, C.S.A., 1865 , 68 M IL

. L. R EV . 77 (1975). See also U.S. Sanitary Commission, Narrative of Privations and Suffering s of United States Officers and Soldiers while Prisoners of War in the Hands of the Rebel Authorities, S. R PT

. N O . 68, 40th

65 GC III: Prisoners of War5. Despite its national character and Civil War setting, the Lieber Code went a long way in influencing European efforts to create international rules dealing

with the conduct of war.

F. The first international attempt to regulate the handling of POWs occurred in 1907 with the promulgation of the Hague Regulations Respecting the Laws and Customs of War on Land (HR). Although the HR gave POWs a def inite legal status and protected them against arbitrary treatment, the Regulations were primarily concerned

with the methods and means of warfare rather than the care of the victims of war. Moreover, the initial primary concern was with the care of the wo unded and sick

rather than POWs

. 12

G. World War I . The Hague Regulations proved insufficient to address the treatment of the nearly 8,000,000 POWs . Germany was technically correct when it argued that the Hague Regulations were not binding because not all participants were signatories. 13
According to the Regulations, all parties to the conflict had to be signatories if the Regulations were to apply to any of the parties. If one belligerent was not a signatory

, then all parties were released from mandatory compliance. The result was

the inhumane treatment of POWs in German control.

H. Geneva Convention Relative to the Treatment of Prisoners of War in 1929 . This convention supplemented the 1907 Hague Regulations and expanded safeguards for

POWs

. This conve ntion did not include the requirement that all parties to the conflict had to be signatories in order for the Convention.

I. World War II . Once again, the relevant treaties were not applicable to all parties. The gross maltreatment of POWs constituted a prominent part of the indictments preferred against Germans and Japanese in the post World War II war crimes trials.

1. The Japanese had signed but not ratified the 1929 Geneva Convention. They had reluctantly signed the treaty as a result of internationa l pressure but ultimately refused to ratify it. The humane treatment of POWs was largely a western concept. During the war, the Japanese were surprised at the concern for POWs. To many Japanese, surrendering Soldiers were traitors to their own

countries and a disgrace to the honorable profession of arms. 14 As a result, most

C ONG

., 3 RD S ESS . (1864), for a description of conditio ns suffered by POWs during the C ivil W ar.
F LORY

, supra note 2 , at 19, n. 60 also cites the Confederate States of America, Report of the Joint Select Committee Appointed to Investigate the Condition and Treatment of Prisoners of War (1865).

12 GC I I I Commentary at 6

.

13 G.I.A.D. D RAPER

, T HE R ED C ROSS C ONVENTIONS 11 (1958).

14 Grady, s upra note 4, at 103.

66 GC III: Prisoners of WarPOWs in the hands of the Japanese during World War II were forced to undergo extremely inhumane treatment.

2. In Europe, the Soviet Union had refused to sign the 1929 Geneva Conventio n and therefore the Germans did not apply it to Soviet POWs. In Sachsenhausen alone, some 60,000 Soviet POWs died of hunger, neglect, flogging, torture, and shooting in the winter of 1941

- 42. The Soviets retained German POWs in the

U.S.S.R. some twelve y ears after the close of hostilities. 15 Generally speaking, the regular German army, the Wehrmacht, did not treat American POWs too badly. The same cannot be said about the treatment Americans experienced at

the hands of the German S.S. or S.D. 16

3. The pos t

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

J. Geneva Convention Relative to the Treatment of Prisoners of War in 1949 (GC III)

. The experience of World War II re sulted in the expansion and codification of the laws of war in four Geneva Conventions of 1949. International armed conflict triggers the full body and protections of the Geneva Conventions. 18 In such a conflict, signatories must respect the Convention in “all circumstances.” This language means that parties must adhere to the Convention unilaterally, even if not all belligerents are signatories. There are provisions that allow non

- signatories to decide to be bound. 19 Moreover, with the exception regardi ng reprisals, all parties must apply it even if it is not being applied reciprocally. The proper treatment of POWs has now risen to the level of

CIL.

K. 1977 Additional Protocols I to the 1949 Geneva Conventions (AP I) . The U.S. is not a party to this Pr otocol. It creates no new protections for prisoners of war, but does,

15 D RAPER

, supra note 1 3, at 49.

16 Grady, supra note 4, at 126.

17 Id

.

18 GC III, art . 2.

19 Currently, all 194 nations are parties to the 1949 Geneva Conventions

. See http:// www.icrc.org/ihl.nsf/CONVPRES?OpenView

.

67 GC III: Prisoners of Warhowever, have the effect, of expanding the definition of “status,” that is who is entitled to the POW protections in international armed conflict. 20



### III. P RISONER OF 

### W AR 

### S TATUS AS A 

### M ATT ER OF 

### L AW

A. Important Terminology.

1. Prisoners of War : A detained person as defined in GC III, art. 4. ( See also FM

27

- 10, para. 61)

2. Civilian Internees : 1. A civilian who is interned during armed conflict or occupation for security reasons, for pro tection , or because he or she has committed an offense against the detaining power. 2. A term used to refer to persons interned and protected in accordance with the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949 (Geneva Convention). 21

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

. 22

4. Detainees : 23 Any person captured, detained, held, or otherwise under the control of DoD personnel (milit ary, civilian, or contractor employee). It includes any person held during operations other that war. This is the default term to use when discussing persons who are in custody of U.S. armed forces.

5. Refugees : Persons who by reason of real or imagined danger have left home to seek safety elsewhere. 24

6. Dislocated civilian : Dislocated civilian is a generic term that includes a displaced person, an evacuee, expellee, internally displaced person, a migrant, a

20 AP I, arts. 4 3

- 45.

21 J OINT C HIEFS OF S TAFF

, J OINT P UB

. 1

- 02, D EPARTMENT OF D EFENSE D ICTIONARY OF M ILITARY AND
A SSOCIATED T ERMS 88 (1 June 1987) [hereinafter J OINT P UB . 1

- 02 ]

. See also The Law of Occupation

and Post

- Conflict Governance chapter of this deskbook

.

22 GC III, art

. 33.

23 U. S. Dep’t of Defense, Dir. 2310.01E, The Department of Defense Detainee Program, para. E2.1. (5 Sep 2006) [hereinafter DoD Dir. 2310.01E].

24 J OINT P UB . 1

- 02, supra note 2 1 , at 453. See also GC IV, art. 44; 1951 UN Convention Relating to the

Status of Refugees, 189 U.N.T.S. 137.

68 GC III: Prisoners of Warrefugee, or a stateless person

. 25 A displaced person is a civilian who is involuntarily outside the national boundaries of his or her country. 26

B. In order to achieve POW status

, the individual must be the right kind of person in the right kind of conflict. The question of status is enormously important. There are two primary benefits of POW status. First, POWs receive immunity for warlike acts (i.e., any acts of killing and breaking things are not criminal). Second, POWs are entitled to all the rights, privileges, and protectio ns under GC III. One of those rights is that the prisoner is no longer a lawful target.

C. The Right Kind of Conflict.

1. Common Article 2 : The “Conventions shall apply to all cases of declared war

or of any other armed conflict which may arise between two or more of the High Contracting Parties . . . .” (emphasis added).

a. Whether or not a conflict rises to the level of Common Article 2 is a question of fact. 27 Factors one should consider are:

i. Has international recognition of the belligerents occurred?

ii. Are there de facto hostilities?

iii. Has the United States authorized the issuance of wartime awards and pay? (This is not dispositive. Recall: Two Special Operations Forces Sergeants received the Congressional Medal of Honor in Somalia, yet it was clearly not a Common Article 2 conflict!)

iv. Another factor to consider is whether the combatants are “ parties ” within the meaning of Common Article 2

. For example, the warlord Aideed and his band in Somalia did not qualify as a “ party ” for purposes of the Geneva Conventions.

25 J OINT P UB . 1

- 02, supra note 2 1 , at 163

.

26 Id

.

27 Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Common Article 2, even if one of the Parties denies the existence of a state of war. 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 adv ersaries falling within the scope of Article 4. GC III Commentary at 23.

69 GC III: Prisoners of Warv. Additionally, terrorist networks and organizations do not qualify as a “party” within the meaning of Common Article 2 of the Geneva

Conventions. This facts seems to have be en part of the rationale of the U.S. position stated in a 7 February 2002 Presidential Memorandum. The official U.S. position was that the al

- Qaida network was not a state party to the Geneva Conventions; it was a foreign terrorist group. On the other ha nd, while the U.S. and all but three other nations never recognized the Taliban as the legitimate Afghan government, Afghanistan is a party to the Conventions. The President determined that while the Taliban were covered by the Geneva Convention as a “par ty,” individual detainees were not

entitled to POW status. 28 This policy was modified on 7 July 2006 in a memo from Deputy Secretary of Defense. 29 While al Qaida is still not a party to the Geneva Conventions, it is now U.S. policy that all detainees captu red in the Global War on Terrorism will be afforded the protections of Common Article 3 of the 1949 Conventions. 30

b. AP I expands the definition of international armed conflict to include conflicts against racist regimes, colonial domination, and alien

oc cupation. 31 It is important to understand that the Geneva Conventions were drafted by military powers with European heritage. Many of the

drafters of the Protocols were so called

- third world countries with a colonial history. They wanted to insure intern ational law protections, primarily combatant immunity, were extended to their forces.

2. Common Article 3

. This article contains minimal protections , which does not include combatant immunity. Protections are limited to internal armed conflicts. Though not defined in the article, armed conflict is something more than mere riots or banditry. There is no absolute test as to what constitutes

armed conflict

, but a significant factor is whether the government uses its armed

forces in response to the conflict. Note that the United States position is that all

28 See Memorandum, President George W. Bush, to Vice President, Subj : Human Treatment of Taliban and al Qaeda Detainees (7 Feb. 2002) available at http://www.pegc.us/archive/White_Ho use/bush_memo_20020207_ed.pdf (last visited Aug. 1, 2007) [hereinafter Presidential Memorandum 7 Feb. 2002].

29 Memorandum, Deputy Secretary of Defense, to Secretaries of the Military Departments, Subj : Application of Common Article 3 of the Geneva Convent ions to the Treatment of Detainees in the Department of Defense (July 7

, 2006) available at http://www.defenselink.mil/news/Aug2006/d20060814comm3.pdf (last visited July 31, 2007) [hereinafter England Memorandum].

30 Id. ; s ee also D O D D IR

. 2310.01E

, supra n ote 23, para 4.2

.

31 AP I, art. 1(4).

70 GC III: Prisoners of WarDoD personnel will adhere to Common Article 3 standards. ( See DoDD 2310.01E)

a. AP II tends to narrow the scope of Common Article 3. It defines armed

conflict whereas the Common Article 3 does not. Unlike Common Article 3, it also requires that to receive the protection of AP II, an armed force must be under responsible command and exercise control over some territory. 32 This narrowing has the effect of excluding some from the

p rotections of Common Article 3. Again, keeping in mind the drafters’ perspective, a newly established State with limited armed forces and resources might be less likely to want to extend protections to revolutionary powers. Some developing nations expres sed concern that the super powers of the time, namely the U.S. and U.S.S.R., might, as a subterfuge for intervention, assert that they needed to become involved in the internal conflict to come to the aid of the insurgents pursuant to

Common Article 3.

b. AP II as a minimum standard by analogy?

i. United States is not a party to either Protocol I or II.

ii. Numerous articles in both Protocol I and II may reflect customary law; for example: AP II; Minimum standards at Article 4 (Fundamental Guarantees), Arti cle 5 (Persons Whose Liberty Has Been Restricted), and Article 6 (Penal Prosecutions).

3. War on Terrorism

. There remains great debate concerning the characterization of the conflict in Afghanistan. Clearly, the U.S. is in an arm ed conflict. The question is whether it is an international armed conflict (Common Article 2; State vs. State), or an armed conflict not of an international character (Common Article 3; internal), a combination of the two; or some other type of armed

conf lict.

a. In regards to the Taliban , it seems clear that the U.S. was in an international armed conflict with the commencement of Operation Enduring Freedom (OEF) on October 7, 2001 While not recognized by 98% of the international community , the Taliban was the de facto government of Afghanistan since 1996, including at the commencement of

OEF. 33 State recognition is not a requirement for the application of the

32 AP II

, art. 1.

33 See Presidential Memorandum 7 Feb. 2002, supra note 2 8, para. 2(b). Although the President found that the provisions of the Geneva Conventions would apply to the conflict against the Taliban, they we re not considered lawful combatants given their failure to adhere to the criteria of GC III

, art. 4(a)(2).

71 GC III: Prisoners of WarGeneva Conventions. However, when the OEF coalition forces defeated

the Taliban regime, they lost control of Afghanistan and ceased to exist as

the de facto government of Afghanistan. With the new Afghan government headed by President Karzai firmly in place as the government of Afghanistan, any remaining armed conflict between the co alition forces and organized armed elements of the Taliban regime arguably could be

characterized as an armed conflict of a non

- international character (i.e., a Common Article 3 internal armed conflict).

b. In regards to the al

- Qaida forei gn terrorist group, the characterization is more complex. Prior to September 11, 2001, operations by and against terrorists were not traditionally treated as armed conflict (neither

international nor non

- international armed conflict). Terrorists have bee n treated as criminals and responses viewed as “law enforcement.” Any military involvement was traditionally viewed as a military operation other than war, and therefore was treated as operations below the armed conflict spectrum. Clearly, the U.S. is in an “armed conflict” with al

Qaida; however, the armed conflict with al

- Qaida does not fit neatly into the existing armed conflict paradigms. Al

- Qaida is not a State and therefore any direct U.S. action versus al

- Qaida network lacks the requirement of two or more States actually involved in the conflict for there to be an international armed conflict. Additionally, the non

international armed conflict paradigm traditionally involved the concepts of “civil wars” or “internal conflicts.” Has the military action taken against al

- Qaida been absorbed into the international armed conflict (Common Article 2) with the Taliban, or is the conflict with al

- Qaida best described as an armed conflict not of an international character (Common Article 3)? In Hamdan v. Rumsfeld, 548 U.S. 557 (2006)

, the United States Supreme Court ruled that Common Article 3 is binding within the conflict against al

- Qaida. If captured, any member of al

- Qaida or other entity fighting the United States will be given the protections of Com mon Article 3 per DoDD 2310.01E. 34

5. Operation Iraqi Freedom (OIF).

a. At the onset of hostilities between Iraq and the United States in March 2003, the United States unequivocally stated that the conflict with Iraq

was a Common Article 2 conflict and that Iraqi Soldiers would be afforded POW protections pursuant to GC III. Major combat operations continued

34 D O D D IR

. 2310.01E

, s upra note 23

. Note the language in the memo as mirroring C ommon Article 3

, that “application of the proceeding provisions shal l not affect the legal status of the parties to a conflict”

Id.

72 GC III: Prisoners of Waruntil May 1, 2003, with the proclamation by President Bush that major combat operations in Iraq had ended.

b. The issue of when the official occupation of Iraq began can be debated. The Presidential proclamation, however, in conjunction with the firm control of Iraq by American and allied forces, clearly led to a state of occupation no matter how it was termed. Therefore, the occupation triggering lang uage found in Common Article 2 continued to be in force, and GC III protected captured members of the Iraqi army.

c. The authority to capture Iraqi insurgents and foreign fighters in Iraq after June 28, 2004 was documented in United Nations Security Counci l Resolution (UNSCR) 1546. This resolution, along with agreements between the United States and the interim Iraqi government, became the legal basis for capturing personnel in Iraq until December 31, 2009.

D. The Right Kind of Person.

1. Once a conflict r ises to the level of Common Article 2, GC III, art. 4 determines who is entitled to POW status. Traditionally, persons were only afforded POW status if they were members of the regular armed forces involved in an

international armed conflict. GC III also included members of militias or resistance fighters belonging to a party to an international armed conflict if they met the following criteria:

a. Being commanded by a person responsible for their subordinates;

b. Havi ng fixed distinctive insignia; 35

c. Carrying arms openly; 36 and,

35 For a discussion of the uniform requirement, see Ex parte Quirin , 317 U.S. 1 (1942) and Mohamadali

and Another v. Public Prosecutor (Privy Council, 28 July 1968), 42 I.L.R. 458 (1971)

. The first attempt to codify the uniform requirement necessary to receive POW status occurred during the Brussels

Conference of 1874.

36 This term carrying arms openly does NOT require they be carried visibly. However, the requirement rests upon the ability to recognize a combatant as just that. AP I changes this requirement in a significant way. Under GC III , a combatant is required to distinguish himself throughout military operations. AP I

,

a rt. 44(3) only obligates a combatant to distinguish himsel f from the civilian population “ while they are engaged in an attack or in a military operation preparatory to an attack, or in any action carried out with a

view to combat

. ” AP Commentary at 527

.

73 GC III: Prisoners of Ward. Conducting their operations in accordance with the laws and customs of

war.

2. In addition, numerous other persons detained by military personnel are entitled to POW status if “they have rec eived authorization from the armed forces which they accompany.” (i.e., possess a GC identity card from a belligerent government). Specific examples include:

a. Contractors ; 37

b. Journalists ; 38

c. Civilian members of military aircraft crews ; 39

d. Merchant marine and civil aviation crews ; 40

e. Persons ac companying armed forces (dependents); 41 and,

f. Mass Levies (Levé e en Masse). 42 To qualify these civilians must:

i. Be in non

- occupied territory;

ii. Act spontaneously to the invasion;

Judge Advocates must recognize that with coalition operations, on e may have to apply a different standard; our coalition partners may use AP I’s criteria. AP I only requires combatants to carry their arms openly in the attack and to be commanded by a person responsible for the organization’s actions, comply

with the la ws of war, and have an internal discipline system. Therefore, guerrillas may be covered.

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

38 See Hans

- Peter Gasser, The Protection of Journalists Engaged in Dangerous Professional Missions

, I NT ’ L R EV

. R ED C ROSS (Jan/Feb. 1983), at 3. See also K ATE W EBB

, O N THE O THER S IDE (1972) (journalist held for 23 days in Cambodia by the Viet Cong).

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

40 GC III, art. 4(a)(5).

41 See Stephen Sarnoski, The Status Under International Law of Civilian Persons Serving with or Accomp anying Armed Forces in the Field

, A RMY L AW . (July 1994), at 29. See generally , Memorandum for the Assistant Judge Advocate General (Civil Law), Subj: Civilians i n Desert Shield

-- Information Memorandum (Nov. 26

, 1992).

42 See GC III

, art. 4(a)( 6) ; FM 27

- 10, para. 65, which states all males of military age may be held as

POWs in an area in which a levé e en masse operates. GC III does not discriminate the right to detain by gender

, and therefore females may be detained as well.

74 GC III: Prisoners of Wariii. Carry their arms openly; and,

iv. Respect the laws and customs of war.

g. This is NOT an all

- inclusive list. One’s status as a POW is a question of

fact. One factor to consider is whe ther or not the individual is in possession of an identification card issued by a belligerent government.

Prior to 1949, possession of an identification card was a prerequisite to

POW status.

4. Medical and religious personnel (Retained Personnel) receive the protections of

GC III. 43 Additionally,

a. Retained personnel are to be repatriated as soon as they are no longer

needed to care for other POWs

.

b. Of note , retained status is not limited to doctors, nurse, corpsman, etc. It also includes, for example , the hospital clerks, cooks, and maintenance

workers. 44

5. Persons whose POW status is debatable: 45

a. Deserters/Defectors; 46

b. Saboteurs ; 47

43 GC III, art s . 4(c) and 33

.

44 See GC I Commentary at 218

- 58

. See generally

, A LMA B ACCINO

- A STRADA

, M ANUAL ON THE R IGHTS

AND D UTIES OF M EDICAL P ERSONNEL IN A RMED C ONFLICTS (ICRC, 1982) ; and Liselotte B. Watson, Status of Medical and Religious Personnel in International Law , JAG J. 4 1 (Sep

- Oct

- Nov 1965).

45 See Levie, supra note 6, at 82

- 84; Richard R. Baxter, So

- Called 'Un privileged Belligerency': Spies, Guerrillas, and Saboteurs

, M IL

. L. R EV

. B ICENTENNIAL I SSUE 487 (1975)(Special Ed.); Albert J. Esgain and Waldemar A. Solf, The 1949 Geneva Convention Relative to the Treatment of Prisoners of War: Its Principles, Innovations, and Deficiencies

, M IL

. L. R EV

. B ICENTENNIAL I SSUE 303 (1975)(Special Ed.).

46 See Memorandum, HQDA, DAJA

- IA, 22 January 1991, Subj : Distinction Between Defectors/D eserters and Enemy Prisoners of War. See also Levie, supra note 6, at 77

- 78; James D. Clause, The Status of Deserters Under the 1949 Geneva Prisoner of War Convention , 11 M IL

. L. R EV . 15 (1961); L.B. Schapior, Repatriation of Deserters, 29 B RIT

. Y B

. I NT ’ L L. 310 (1952)

.

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

. See also H OWARD S.

75 GC III: Prisoners of Warc. Military advisors; 48

d. Belligerent diplomats; 49

e. Mercenaries 50 (AP I, art. 47).

f. U.N. personnel during U.N. peace missions. 51

6. Spies are not entitled to POW status (HR, art. 29, and AP I, art. 46).

E. When POW’s Status is in Doubt.

1. Article 5, GC III : “ Shou ld any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until suc h time as their status has been determined by a competent tribunal. ”

2. AR 190

- 8 52 provides guidance on how to conduct an Article 5 Tribunal.

a. A General Court

- Martial Convening Authority appoints the tribunal.

L EVIE

, 59 I NTERNATIONAL L AW S TUDIES

, P RISONERS OF W AR IN I NTERNATIONAL A RMED C ONFLICT 36

­ 37 and 82

- 83 (1977).

48 If a neutral nation sends a military advisor or some other representative that accompanies an armed force as an observer then that person, if taken into custody of the ar med forces of the adverse Party,

would not be considered a P O W. The military representative could be ordered out of, or removed from the theater of war. On the other hand, if the military representative takes part in the hostilities and acts as

a “milita ry advisor” and renders “military assistance to the armed forces opposing those of the belligerent Power into whose hands they have fallen, it could be argued that they fall within the ambit of Article 4(A) and that they are therefore entitled to prisoner

- of

- war status.” Levie, supra note 47, at 83

- 84.

49 If a belligerent diplomat, in addition to his political office, is a member of the regular armed forces or is accompanying the armed forces in the field in one of the categories included in GC III, art. 4( A)

, then he is subject to capture and to P O W status. Levie, supra note 47, at 83, 342n.

50 See generally AP I, art. 47 (indicating that mercenaries do not qualify for Prisoner of War status; however, the United States is not a party to AP I and objects to this specific provision); John R. Cotton, The Rights of Mercenaries as Prisoners of War , 77 M IL

. L. R EV . 144 (1977).

51 See Convention on the Safety of United Nations and Associated Personnel, G.A. Res. 49/59, 49 U.N. GAOR Supp. (No. 49), at 299, U.N. Doc. A/49/49 (1994).

52 U.S. Dep’t of Army, Reg. 190

- 8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees para. 1

- 6(a) (1 Oct. 1997) [hereinafter AR 190

- 8].

76 GC III: Prisoners of Warb. There are to be three voting members, the president must be a field grade officer, and one nonvoting recorder, preferably a Judge Advocate.

c. The standard of proof is “preponderance of the evidence.” The regulation does not place the burden of proof or production on either party. The

tribunal s hould not be viewed as adversarial as the recorder need not be a judge advocate and there is no right to representation for the subject whose status is in question.

d. If a Combatant Commander has his own regulation or policy on how to

conduct an Article 5 Tribunal, the Combatant Commander’s regulation would control. For example, see CENTCOM Regulation 27

- 13.



### IV. P RIMARY 

### P ROTECTIONS 

### P ROVIDED TO 

### P RISONERS OF 

### W AR

A. Protection “Top Ten.” 53

1. Humane Treatment. 54 (GC III, art. 13)

2. Prohibition against medic al experiments. (GC III, art. 13)

3. Protection from violence, intimidation, insults, and public curiosity. 55 (GC III, art. 13)

4. Equality of treatment. (GC III, art. 16)

5. Free maintenance and medical care. (GC III, art. 15)

53 For an excellent discussion regarding the “Top Ten” protections, s ee M ajor Geoffrey S. Corn and

M ajor Michael L. Smidt, “To Be or Not to Be, That is the Question

, ” Contemporary Military Operations and the Status of Captured Personnel, A RMY L AW

. June 1999.

54 The requirement that P O Ws must at all times be humanely treated is t he basic theme of the Geneva

Conventions. GC III Commentary at 140. A good rule of thumb is to follow the “golden rule

. ” That is, to treat others in the same manner as you would expect to be treated or one of your fellow service

members to be treated if captured. In other words, if you would consider the treatment inhumane if imposed upon one of your fellow service members, then it probably would violate this provision.

55 Trial of Lieutenant General Kurt Maelzer, Case No. 63, reprinted in U NITED N ATIONS W AR C RIMES
C OMMISSION

, XI L AW R EPORTS OF T RIALS OF W AR C RIMINALS 53 (1949) ( parading of American prisoners of war through the streets of Rome)

. See Gordon Risius and Michael A. Meyer, The protection of prisoners of war against insults and public curiosit y, I NT ’ L R EV

. R ED C ROSS , No. 295, (July/Aug. 1993), at 288. This article focuses on the issue of photographing prisoners of war.

77 GC III: Prisoners of War6. Respect for person an d honor (specific provision for female POWs included). (GC III, art. 14)

7. No Reprisals. (GC III, art. 13)

8. No Renunciation of Rights or Status. (GC III, art. 7)

9. The Concept of the Protecting Power, especially the ICRC. (GC III, art. 8)

10. Immu nities for warlike acts, but not for pre

- capture criminal offenses, or

violations of the law of war. 56

B. Post

- Capture Procedures

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

umbrella.

2. The protection and treatment rights, as well as the obligations begin “. . . [F]rom the time they fall into the power of the enemy . . .” 57 (GC III, art. 5)

3. POWs can be secured with handcuffs (flex cuffs) an d blindfolds, as well as shirts pulled down to the elbows, as long as it is done humanely (cannot be for humiliation/intimidation purposes).

a. Protect against public curiosity.

i. Art. 13 does not per se prohibit photographing an POW. The prohibition extends to photographs that degrade or humiliate a POW.

56 GC III does not specifically mention combatant immunity. Rather, it is considered to be customary

international law. Moreo ver, it can be inferred from the cumulative effect o f protections within GC III

. For example, Article 13 requires that prisoners not be killed, and Article 118 requires their immediate repatriation after cessation of hostilities. Although Article 85 does indicate that there are times when prisoners of war may be prosecuted for precapture violations of the laws of the detaining power, the Commentary accompanying Article 85 limits this jurisdiction to only two types of crimes : a prisoner may be prosecuted o nly for (1) war crimes, and (2) crimes that have no connection to the state of war. See Corn and Smidt, supra note 5 3 at n. 124.

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

78 GC III: Prisoners of WarWith respect to POWs, there is some value added in disseminating photographs since it gives family members assurance that their loved one is alive. Bottom line: strict guideli nes required. 58

ii. This is in stark contrast to Iraq and North Vietnam’s practice of parading POWs before the news media.

b. POW capture tags. All POWs will, at the time of capture, be tagged using

DD Form 2745. 59

4. Property of Prisoners. (GC III, art. 1 8)

a. Weapons, ammunition, and equipment or documents with intelligence value will be confiscated and turned over to the nearest intelligence unit. (AR 190

- 8)

b. POWs and retained personnel are allowed to retain personal effects such as jewelry, helmets, canteens, protective mask and chemical protective garments, clothing, identification cards and tags, badges of rank and nationality, and Red Cross brassards, articles having personal or sentimental value and items used for eating excep t knives and forks. 60
( See GC III, art. 18; AR 190

- 8)

c. But what about captured persons not entitled to POW status? 61 ( See GC IV, art. 97)

58 AR 190

- 8 provides: “Photographing, filming, and video taping of individual EPW, CI, and RP for other than internal Internment Facility administration or intelligence/counterintelli gence purposes is strictly prohibited. No group, wide area or aerial photographs of POW , CI and RP or facilities will be taken unless approved by the senior Military Police officer in the Interment Facility commander’s chain of

command. AR

- 190

- 8

, supra n ote 52, para. 1

- 5(4)(d).

59 AR 190

- 8

, supra note 52, para. 2

- 1.a.(1)(b)

, (c). This provision is routinely overlooked

, as noted in

After Action Reviews from Operation Iraqi Freedom

.

60 Ltr, HQDA, DAJA

- IA 1987/8009, S ubj: Protective Clothing and Equipment f or EPWs. See also GC III Commentary at 166, n. 2.

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

79 GC III: Prisoners of War5. Rewards for the capture of POWs are permissible, but they must avoid even the

hint of a “wanted dead or alive” mentality. 62

6. What can I ask a POW? ANYTHING!!

a. All POWs are required to give: (GC III, art. 17)

i. Surname, first name;

ii. Rank;

iii. Date of birth; and,

iv. Serial number.

b. What if an POW refuses to provide his rank? Contin ue to treat as POW,

but as of the lowest enlisted rank. 63

c. No torture, threats, coercion in interrogation (Art. 17, GC III )

. It’s not what you ask but how you ask it. 64 See the chapter on Intelligence Law and Interrogation Operations in the Operational L aw Handbook for a more

detailed discussion.

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

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

.

62 The U.S. issued an offer of reward for information leading to the apprehension of General Noreiga. Memorandum For Record, Dep’t of Army, Office of the Ju dge Advocate General, DAJA

- IA, S ubj: Panama Operations: Offer of Reward (Dec. 20

, 1989). This is distinct from a wanted “dead or alive” type award offer prohibited by the Hague Regulations. See FM 27

- 10 , para. 31 (interpreting HR, art. 23b to prohibit “putting a price upon an enemy’s head, as well as offering a reward for an enemy ‘dead or alive’”).

63 G C III, art. 17, para. 2. See also GC III Commentary at 158

- 5 9.

64 15 U NITED N ATIONS W AR C RIMES C OMMISSION

, L AW R EPORTS OF T RIALS OF W AR C RIMINALS 101 n. 4 (1949) See Stanley J. Glod an d Lawrence J. Smith, Interrogation Under the 1949 Prisoners of War

Convention , 21 M IL

. L. R EV . 145 (1963); GC II Commentary at 163

- 6 4; Levie, supra note 47, at 106

- 09.

80 GC III: Prisoners of War

### V. POW C AMP 

### A DMINISTRATION AND 

### D ISCIPLINE

A. Responsibility

. (GC III, art. 12). The State (Detaining Power) is responsible for the treatment of POWs. POWs are not in the power of the individual or military unit that captured them. They are in the hands of the S tate itself, of which the individuals or military units are only agents. 65

B. Locations?

1. Land only. (GC III, art 22). However, during the Falklands War, the British temporarily housed Argentine POWs on ship while in transit to repatriation.

2. Not near military targets

. 66 ( GC III, art. 23 ). During the Falklands War, several Argentine POW s were accidentally killed while moving ammunition away from

their billets.

3. POWs must be assembled into camps based upon their nationality, language, and customs. ( GC III, art. 22)

a. Generally, cannot segregate prisoners based on religion or ethnic background. 67 However, segregation by these beliefs may be required especially when they are a basis for the conflict. Such as in Y ugoslavia: Serbs, Croats, and Muslims; Rwanda: Hutus, Tutsis; and Iraq: Sunni and

Shia

.

b. Political beliefs . GC III, art. 38 encourages the practice of intellectual pursuit. However, the U.N. experience in POW camps demonstrated that pursuit of political beliefs can cause great discipline problems within a camp. In 1952, on Koje

- do Island, riots broke out at the POW camps

65 GC III Commentary at 128

- 29.

66 Iraq used U.S. and allied POW s during the Persian Gulf War as human shields in violation of GC III,

a rt s . 19 and 23. See Iraqi Mistreatment of POWs

, D EP ' T OF S TATE D ISPATCH , Jan. 28, 1991, at 56 (Remarks by State Department Spokesman Margaret Tutwiler). See also D EP ' T OF D EF

., F INAL R EPORT

T O C ONGRESS : C OND UCT OF THE P ERSIAN G ULF W AR (April 1992), at 619

- 620.

67 GC III, a rt. 34

. One of the most tragic events of religions discrimination by a detaining power for religious reasons was the seg regation by the Nazis of Jewish

- American POWs . Several Jewish Ameri can S oldiers were segregated from their fellow Americans and sent to slave labor camps where “they were beaten, stared and many literally worked to death.” M ITCHELL G. B ARD

, F ORGOTTEN V ICTIMS : T HE
A BANDONMENT OF A MERICANS IN H ITLER ’ S C AMPS (1994). See al so Trial of Tanaka Chuichi and Two

Others in U NITED N ATIONS W AR C RIMES C OMMISSION

, XI L AW R EPORTS OF W AR C RIMES T RIALS 62 (1949) ( convicting Japanese prison guards, in part, for intentionally violating the religious practices of Indians of the Sikh faith)

.

81 GC III: Prisoners of Warinstigated by North Korean POW communist activists. Scores of prisoners sympathetic to South Korea were murdered by North Korean POW extremist groups. During the rioting , POWs captured the camp commander, Brigadier General Dodd. 68

C. What Must Be Provided?

1. Quarters equal to that provided to Detaining forces (GC III, art. 25); total

surface and minimum cubic feet.

2. Adequate clothing considering climate. (GC III, art. 27)

3. Canteen? 69 ( GC III, art. 28 )

4. T obacco? 70 ( GC III, art. 26)

5. Recreation

. ( GC III, art. 38)

6. Religious accommodation

. ( GC III, art. 34)

7. Food accommodation (GC III, arts. 26 and 34); if possible, utilize enemy food stocks and let them prep are their own food.

8. Copy of GC III in POWs own language. Copies are available at: www.icrc.org

.

68 Dep't of the Army, Office of the Provost Marshall, Report of The Military Police Board No. 53

- 4, Collection and Documentation of Material Relating to the Prisoner of War Internment Program in Korea,

1950

- 1953 (1954). See also W ALTER G. H ERMES

, T RUCE T E NT AND F IGHTING F RONT (1966), at 232

- 63; The Communists War in POW Camps , Dep't of State Bulletin, Feb 6, 1953, at 273; Harry P. Ball, Prisoner and War Negotiations: The Korean Experience and Lesson , in 62 International Law Studies: The Use of Force, Human Rights and General International Legal Issues, Vol. II, 292

- 322 (Lillich & Moore, eds., 1980).

69 The U.S. does not provide POW s with a canteen, but instead provides each POW with a health and comfort pack. Me morandum, HQDA

- IP, 29 Oct. 94, S ubj: Enemy Prisoner of War Health and Comfort

Pack.

70 See Mem orandum, HQDA

- IO, 12 Sept. 94, S ubj: Tobacco Products for Enemy Prisoners of War. During Desert Storm, the 301st Military Police POW camp required 3500 packages of cigarettes per day. Operation Deserts St orm: 301st Military Police EPW Camp Briefing Slides

, available in TJAGSA, ADIO

POW files. See also W ILLIAM G. P AGONIS

, M OVING M OUNTAINS : L ESSONS IN L EADERSHIP AND

L OGISTICS FROM THE G ULF W AR 10 (1992), for LTG Pagonis' views about being told he must buy

t obacco for POWs

.

82 GC III: Prisoners of War9. Due process. (GC III, arts. 99

- 108)

10. Hygiene (GC III, art. 29); separate baths, showers and toilets must be pr ovided for women prisoners of war.

D. POW Accountability. 71 (GC III, arts. 122 and 123)

1. Capture notification

– PWIS (Prisoner of War Information System) . This system was utilized during Operations Desert Storm and Operation Uphold Democracy. The PWIS is now known as the National Detainee Reporting Center (NDRC).

2. POW deaths . (GC III, arts. 120 and 121). Any death or serious injury to a POW requires an official inquiry. Look t o theater

- specific SOPs to provide additional guidance on the appointing authority and routing system for the investigation or inquiry into a POW death or serious injury.

4. Reprisals against POWs are prohibited. (GC III, art. 13)

E. Transfer of POWs. (GC III, art s . 46

- 48)

1. Belligerent can only transf er POW s to nations which are parties to the

Convention.

2. Detaining Power remains responsible for POW care.

a. There is no such thing as a “ U.N. ” or “ coalition ” POW. 72

b. To ensure compliance with the GC III , U.S. Forces routinely establish

liaison teams a nd conduct GC III training with allied forces prior to

transfer POW s to that nation. 73

71 See Vaughn A. Ary, Accounting for Prisoners of War: A Legal Review of the United States Armed Forces Identification and Reporting Procedures

, A RMY L AW ., August 1994, at 16, for an excellent review of the United States system of tracking POW s. See also Robert G. Koval, The National Prisoner

of

- War Information Center

, M ILITARY P OLICE (June 1992), at 25.

72 See Albert Esgain and Waldemar Solf, The 1949 Geneva Convention Relative to the Treatment of Prisoners of War: Its Principles, Innovati ons, and Deficiencies

, M IL

. L. R EV

. B ICENT

. I SSUE 303, 328

­ 330 (1975), for a discussion of the practical problems faced with this provision.

73 See

, e.g. , Memorandum of Agreement Between the United States of America and the Republic of

Korea on the Transfe r of Prisoners of War/Civilian Internees, signed at Seoul February 12, 1982, T.I.A.S.

83 GC III: Prisoners of WarF. Complaints and Prisoners’ Representatives.

1. The primary rights and duties/oversight responsibilities of Prisoner Representatives are set f orth in the following articles of GC III: 57, 78

- 81, 98, 104, 107, 125, and 127.

2. There is the potential for conflict of the Prisoner Representative duties with the

Code of Conduct Senior Ranking Officer (SRO) requirement. 74

3. The SRO will take command, regardless of the identification of the Prisoners Representative.

G. POW Labor. 75 (GC III, arts. 49

- 57)

1. Rank has its privileges.

a. Officers cannot be compel led them to work.

b. NCOs can be compel led to superv ise only.

c. Enlisted can be compel led to do manual labor.

d. If they work, they must be paid.

e. Retained Personnel shall not be required to perform any work outside their medical or religious duties. This is an absolute prohibition that includes

work co nnected to the administration and upkeep of the camp. (GC I, art. 28(c))

2. Compensation

. 76 (GC III, art. 60). 8 days paid vacation annually? (GC III, art. 53)

10406. See also U NITED S TATES F ORCES K OREA

, R EGULATION 190

- 6

, E NEMY P RISONERS T RANSFERRED

TO R EPUBLIC OF K OREA C USTODY (Apr. 3

, 1992). See also D O D P ERSIAN G ULF R EPORT

, at 583.

74 See D EP ’ T OF D EFENSE I NSTRUCTION 1300.21

, C ODE OF C ONDUCT T RAINING AND E DUCATION ( Jan. 8, 2001).

75 See Howard S. Levie, The Employment of Prisoners of War, 23 M IL

. L. R EV . 41, and Levie, supra note 47, at 213

- 254. See generally , Frank Kolar, An Ordeal That Was Immortalized: Not all was fiction in the story of the bridge on the River Kwai

, M IL

. H ISTORY (Feb. 1987), at 58.

84 GC III: Prisoners of War3. Type of Work.

a. Work cannot be unhealthy or dangerous, unless the POW volunteers.

Work ca nnot be humiliating. (GC III, art. 52)

b. Work such as camp administration, installation, and maintenance is authorized, as well as work relating to agriculture; commercial business, and arts, and crafts; and domestic service without restriction to milita ry character or purpose. 77

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

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

H. Camp Discipline.

1. Disciplinary sanctions.

a. Must relate to breaches of camp discipline.

b. Only four types of punishments (UCMJ Art. 15

- type punishments) are authorized (GC III, arts. 89 and 90). The maximum punishments are: 78

i. Fine: 1⁄2 pay up to 30 days.

ii. Withdrawal of privileges, not rights.

iii. 2 hours of fatigue duty per day for 30 days.

iv. Confinement for 30 days.

c. Imposed by the camp commander. (GC III, art. 96)

76 See Dep't of the Army Regulation 37

- 1, Financial Administration: Army Accounting and Fund Control (Apr. 30

, 1991), Chapter 36.

77 GC II Commentary at 150

- 51.

78 GC IV provides the same maximum punishments for civilian internees. See GC IV, art. 119.

85 GC III: Prisoners of War2. Judicial sanctions.

a. POWs: Pre

- capture v. post

- capture.

i. Pre

- capture: General court

- martial or fede ral or state court prosecution if they have jurisdiction over U.S. S oldier for the same offense

. 79 ( GC III, arts. 82 and 85)

ii. Post

- capture: any level court

- martial allowed under UCMJ. Jurisdiction for post

- capture offenses is found under Art. 2(9),

UCM J (GC III, arts. 82 and 102).

iii. Court

- martial or military commission. 80 (GC III, art. 84). [But note effect of GC III, art. 102, is that U.S. must use a court

- martial unless policy is changed to allow trial of a U.S. service members before a military co mmission.]

b. Due process required.

i. POWs: same due process as that provided to the Detaining Power ’ s

own military forces

. ( GC III, arts. 99

- 108)

ii. Right to appeal. (GC III, art. 106)

I. Escape.

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

It should be noted that at least 12 nations have made a reservation to GC III, a rt. 85. The reservatio n in essence would deny a POW their protected status if convicted of a war crime. North Vietnam used their reservation under Art. 85 to threaten on several occasions the trial of American pilots as war criminals.

See M ARJORIE W HITE MAN

, 10 D IGEST OF I NTERNATIONAL LAW 231

- 234 (1968); J. Burnham, Hanoi's Special Weapons System: threatened execution of captured American pilots as war criminals, N AT

. R EV

., Aug. 9, 1966; Dangerous decision: captured American airmen up for trial?, N EWSWE EK , July 25, 1966; Deplorable and repulsive: North Vietnam plan to prosecute captured U.S. pilots as war criminals

, T IME

, July 29, 1966, at 12

- 13. See generally , Joseph Kelly, PW's as War Criminals

, M IL

. R EV . (Jan. 1972), at

91.

80 See Major Timothy C. M acDonnell, Military Commissions and Courts

- Martial: A Brief Discussion on

the Constitutional and Jurisdictional Distinctions Between the Two Courts

, A RMY L AW

. , Mar

. 2002. For

a historica l use of military commissions, see Major Michael O. Lacey, Military C ommissions: A Historical Survey

, A RMY L AW

., Mar

. 2002.

86 GC III: Prisoners of War1. When is an escape deemed succes sful? 81 (GC III, art

. 91)

a. S ervice member has rejoined their, or an ally’s , armed forces;

b. S ervice member has left the territory of the Detaining Power or its ally; (i.e., entered a neutral country’s territory);

c. Service member has joined a ship flyi ng the flag of the Power on which he depends, or of an Allied Power, in the territorial waters of the Detaining Power, the said ship not being under the control of the last named Power. 82

2. Unsuccessful escape.

a. Only disciplinary punishment for the escap e itself ( GC III, art. 92). 83

b. Offenses in furtherance of escape.

i. Disciplinary punishment only: 84 if sole intent is to facilitate escape and no violence to life or limb, or self

- enrichment (GC III, art. 93).

81 Betwee n 1942 and 1946, 2,222 German POW s escaped from American camps in the U.S. At the time of repatriation, 28 still were at large. One remained at large and unaccounted for in the U.S. until 199 5!

None of the German POW s ever successfully escaped. During World War II, 435,788 German POW s were held on American soil (about 17 divisions worth). Of all the Germans captured by the British in Europe, only one successfully escaped and returned to his own forces. This German POW did this by jumping a prisoner train in Canada and crossing into the U.S., which at that time was still neutral

. A LBERT B IDERMAN

, M ARCH TO C ALUMNY : T HE S TORY OF A MERICAN POW' S IN THE K OREAN W AR 90 (1979); Jack Fincher, By Con vention, the enemy within never did without

, S MITHSONIAN (June 1995), at

127. See also A RNOLD K RAMMER

, N AZI P RISONERS OF W AR IN A MERICA (1994).

See A. Porter Sweet, From Libby to Liberty

, M IL

. R EV . (Apr. 1971), at 63, for an intere sting recount of

how 10 9 union Soldiers escaped a Confederate POW camp during the Civil War. See E SCAPE AND

E VASION : 17 T RUE S TORIES OF D OWNED P ILOTS W HO M ADE I T B ACK (Jimmy Kilbourne, ed. 1973), for stories of servicemen who successful avoided capture after being shot down beh ind enemy lines or t hose who successfully escaped POW camps after capture. The story covers World War I through the Vietnam War. According to this book, only 3 Air Force pilots successfully escaped from captivity in North Korea. Official Army records sh ow that 670 S oldiers captured managed to escape and return to Allied control. However, none of the successful escapees had escaped from permanent POW camps. See Paul Cole, I POW/MIA Issues, The Korean War 42 (Rand Corp. 1994). See also George Skoch, Esca pe Hatch Found: Escaping from a POW camp in Italy was one thing. The next was living off a war

- torn land among partisans, spies, Fascists and German Patrols

, M IL

. H ISTORY (Oct. 1988), at 34.

82 See S WISS I NTERNMENT OF P RISONERS OF W AR : A N E XPERIMENT IN I NT ERNATIONAL H UMANE

L EGISLATION AND A DMINISTRATION (Samuel Lindsay ed., 1917), for an account of POW internment procedures used during World War I.

83 See also GC IV, art. 120, for similar treatment of civilian internees who attempt escape

.

87 GC III: Prisoners of WarFor example, a POW may wear civilian clothi ng during escape attempt without losing their POW status. 85

ii. Judicial punishment: if violence to life or limb or self

- enrichment (GC III, art. 93).

3. Successful escape.

a. Some authors argue no punishment can be imposed for escape or violence

to life or limb offenses committed during escape if later recaptured. (GC III, art. 91)

b. However, most authors posit that judicial punishment can occur if a POW is later recaptured for his previous acts of violence.

c. Issue still debated, so U.S. policy is not t o return successfully escaped POW to same theater of operations.

4. Use of force against POWs during an escape attempt or camp rebellion is lawful. Use of deadly force is authorized “only when there is no other means of putting an immediate stop to the at tempt.” 86

J. Repatriation of Prisoners of War. 87

1. Sometimes required before cessation of hostilities (GC III, art. 109).

84 But see 18 U.S.C . § 7 57 which makes it a felony, punishable by 10 years confinement and $10,000 to procure “the escape of any prisoner of war held by the United States or any of its allies, or the escape of any person apprehended or interned as an enemy alien by the Unite d States or any of its allies, or . . . assists in such escape . . ., or attempts to commit or conspires to commit any of the above acts. . . .”

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

86 GC III Commentary at 246. Compare Trial of Albert Wagner , XIII T HE U NITED N ATIONS W AR
C RIMES C OMMISSION

, L AW R EPORTS OF THE T RIAL OF W AR C RIMINALS , Case No. 75, 118 (1949), with Trial of Erich Weiss and Wilhelm Mundo , XIII T HE U NITED N ATI ONS W AR C RIMES C OMMISSION

, L AW

R EPORTS OF THE T RIAL OF W AR C RIMINALS , Case No. 81, 149 (1949). "The use of weapons against prisoners of war, especially against those who are escaping or attempting to escape, shall constitute an extreme measure, which shal l always be preceded by warnings appropriate to the circumstances." GC III,

at 42.

87 For a thorough list of resources on this issue, see B IBLIOGRAPHY ON R EPATRIATION OF P RISONERS OF
W AR (1960) , a copy of which is maintained by the TJAGLCS Library.

88 GC III: Prisoners of Wara. Seriously sick and wounded POWs whose recovery is expected to take more than 1 year ( GC III, art. 110 ).

b. Incurabl y sick and wounded ( GC III, art. 110 ).

c. Permanently disabled, physically or mentally (GC III, art. 110).

d. Used in Korean War: 6640 North Korean and Chinese for 684 UN

S oldiers during what was known as Operation Little Switch.

e. This provision is routinely ignored.

2. After cessation of hostilities.

a. GC III, a rt. 118

, provides: “ Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities. ”

b. Rule followed after World War II. Result: thousands of Russian POWs executed by Stalin upon forced repatriation.

c. U.N. command in Korea first established principle that POWs do not have to be repatriated, if they do not so wish. 88

88 See R .R. Baxter, Asylum to Prisoners of War

, B RITISH Y EARBOOK I NT ’ L L. 489 (1953).

89 GC III: Prisoners of WarGC III: Prisoners of War 90

## G ENEVA 

## C ONVENTION 

## IV: C IVILIANS ON THE 

## B ATTLEFIELD

I. O BJECTIVES

A. Familia rity with historical development of protections for civilians during armed

conflict.

B. Understanding of the legal definition of “civilian.”

C. Understanding of consequences of civilians taking direct part in hostilities.



### II. DEVELOPMENT OF CIVILIAN PROTEC TIONS DURING ARMED

CONFLICT

A. Historical Background . The concept of protecting civilians during conflict is ancient. Historically, three considerations motivated implementation of such protections.

1. Desire of sovereigns to protect their citizens . Bas ed on reciprocal self

- interests, ancient powers entered into agreements, followed codes of chivalry, or issued instructions to soldiers in the hope similar rules would protect their own land and people if they fell under their enemy’s control.

2. Facilitat ion of strategic success . Military and political leaders recognized that enemy civilians who believed that they would be well treated were more likely to surrender and cooperate with occupying forces. Sparing the vanquished from

atrocities facilitated ul timate victory.

3. Desire to minimize the devastation and suffering caused by war

. Throughout history, religious leaders, scholars, and military professionals advocated limitations on the devastation caused by conflict. This rationale emerged as a major trend in the development of the law of war in the mid

- nineteenth century and continues to be a major focus of advocates of “humanitarian law.”

B. The Lieber Code

. Prior to the American Civil War, although treatises existed, there

was n o written “Law of War.” Only customary law existed regarding the need to distinguish between combatants and civilians.

1. Dr. Francis Lieber, a law professor at Columbia College in New York at the outset of American Civil War, advised President Lincoln on law of war matters. In November 1862, Dr. Lieber and four General Officers draft the Lieber Code. On April 24, 1863, the United States published the Lieber Code as General Order No. 100, Instructions for the Government of the Armies of the United

91 GC IV: Civilians on the BattlefieldStates in the Field

. I ncorporating customary law and contemporary practices, i t was the first official laws of war published and implemented by a State.

2. The Lieber Code contained 157 articles and ten sections. The first two sections contain specific languag e regarding civilians.

a. Section I, Martial law

— Military jurisdiction

— Military necessity

— Retaliation.

b. Section II, Public and private property of the enemy

— Protection of persons, and especially of women; of religion, the arts and sciences

— Punishment of crimes against the inhabitants of hostile countries.

3. Lieber Code Principles on Treatment of Civilians . The Lieber Code expressly condoned, under military necessity, starvation of civilians; however, it recognized civilian status and that the “unarmed c itizen is to be spared in person, property, and honor as much as the exigencie s of war will admit.” (Art. 22)

a. War is not carried on by arms alone. It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier subj ect ion of the enemy. (Art. 17)

b. When a commander of a besieged place expels the non

- combatants, in order to lessen the number of those who consume his stock of provisions, it is lawful, though an extreme measure, to drive them back, so as to

hast en on the surrender. (Art. 18)

c. Commanders, whenever admissible, inform the enemy of their intention to bombard a place, so that the non

- combatants, and especially the women and children, may be removed before the bombardment commences. But

it is no infraction o f the common law of war to omit thus to inform the enemy. Surprise may be a necessity. (Art. 19)

d. The citizen or native of a hostile country is thus an enemy, as one of the constituents of the hostile state or nation, and as such is subjected to the

h a rdships of the war. (Art. 21)

e. Nevertheless, as civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the

host ile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war w ill admit. (Art. 22)

92 GC IV: Civilians on the Battlefieldf. Private citizens are no longer m urdered, enslaved, or carried off to distant parts, and the inoffensive individual is as little disturbed in his private relations as the commander of the hostile troops can afford to grant in the overruling demands of a vigorous war. (Art. 23)

g. The alm ost universal rule in remote times was, and continues to be with barbarous armies, that the private individual of the hostile country is destined to suffer every privation of liberty and protection and every disruption of family ties. Protection was, and still is with uncivilized

pe ople, the exception. (Art. 24)

h. All wanton violence committed against persons in the invaded country, all destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense. A soldier, officer, or private, in the

act of committing such violence, and disobeying a superior ordering him to abstain from it, may be lawfully killed on the spot by such superior. (Art. 44)

C. Civilian Protection in the Modern Jus in Bello . By the early twentieth century, two methodologies f or regulation of the conduct of war developed under international

law.

1. The Hague Tradition

. The Hague Tradition developed a focus on limiting the means and methods used in combat. Named for the series of treaties produced

at th e 1899 and 1907 Hague Conferences, instruments of the Hague Tradition restrict Parties’ conduct of combat operations. The Hague treaties contain regulations regarding the means and methods of warfare during hostilities (regarding protection of civilian pr operty) and protection of civilians during occupation. General civilian protections are not a focus of the Hague Tradition

.

a. Protections During Hostilities.

i. No seizure or destruction of civilian property unless imperatively demanded by military neces sity. ( HR, art. 23)

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

iii. No bombardment of undefended places. ( HR, art. 25)

93 GC IV: Civilians on the Battlefieldiv. No forcing enemy nationals to assist in the war effo rt against their own nation. ( HR, art. 23)

v. All necessary measures must be taken to spare, as far as possible, religious, medical, or cultural structures. ( HR, art. 27)

vi. All necessary measures must be taken to spare, as much as possible, places wher e wounded and sick are collected. ( HR, art. 27)

vii. No pillaging. ( HR, art. 28)

b. Protections of Civilians During Occupation . “[T]erritory is considered occupied when it is actually placed under the authority of the hostile army.” ( HR, art. 42)

i. Du ty to ensure public safety. ( HR, art. 43)

ii. No coercion of information. ( HR, art. 44)

iii. No forcing inhabitants of occupied territory to swear an oath of allegiance. ( HR, art. 45)

iv. No pillaging. ( HR, art. 47)

v. No general submission for the act s of an individual, subgroup, or group. ( HR, art. 50)

vi. Family honor, property rights, and religious freedom must be respected. ( HR, art. 46)

2. The Geneva Tradition . The second methodology, the Geneva Tradition, focuses

on tr eatment of war victims in the hands of enemy armed forces. Prior to World War II, the Geneva Conventions of 1864, 1 1906 2 and 1929 3 afforded protections to civilians only when aiding wounded soldiers.

1 See Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, Aug. 22,

1864

, Art. 5, 18 Martens Nouveau Recueil (1e ser.) 612, translated and repr inted in T HE L AWS O F
A RMED C ONFLICTS 279 (Dietrich Schindler & Jiri Toman eds., 3d rev. ed. 1988).

2 See Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, 6 July 1906, Art. 5, 35 Stat. 1885, 1 Bevans 516.

94 GC IV: Civilians on the Battlefield

### III. F OURTH 

### G ENEVA 

### C ONVENTION 

### , 1949

A. World War II expo sed civilians to increasingly destructive methods of warfare. The most compelling factor in the decision to include civilians in the Geneva Conventions, however, was the abominable fate that civilians suffered while at the

hands of their nations’ enemies. 4

B. International Armed Conflict.

1. “Civilian” Defined

. Although the concept of distinction between combatants and civilians lies at the very foundation of the law of war, GC IV contains no

definition of who falls within the ca tegory of “civilian.” 5

a. The AP I Definition.

i. By 1974, it was apparent that the lack of a definition of “civilian” in

GC IV was inadequate, and jeopardized the principle of distinction. 6 As a result, in 1977, AP I provided a definition in Art. 50(1) s tating: “A civilian is any person who does not belong to one of the categories referred to in Article 4(A)(1), (2), (3) and (6) of the Third

Convention and in Article 43 of this Protocol.”

ii. Art. 50(1), therefore, adopts a “negative” definition. The def inition results in that the following persons, generally considered to be

lawful combatants

, do not qualify as “civilians” for purposes of the

law of war:

A. Members of the armed forces of parties to the conflict; 7

3 Se e Geneva Convention for the Amelioration of the Condition of the Wounded and Sick of Armies in the Field, July 27, 1929, 47 Stat. 2074, 118 L.N.T.S. 303.

4 J OHN N ORTON M OORE

, S OLVING THE W AR P UZZLE 91 (2004) ("World War II, with the associated Holocaust, p roduced at least forty million deaths. As many as 1,700 cities and towns and 70,000 villages were devastated in the Soviet Union. Over 40 percent of the buildings were destroyed in forty

- nine of Germany's largest cities and many suffered much worse.")

.

5 Derek Jinks, The Declining Significance of POW Status , 45 H ARV

. I NT ' L L.J. 367, 381 (2004).

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

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

95 GC IV: Civilians on the BattlefieldB. Members of militias and organized resistance movements belonging to a Party to the conflict; 8

C. Members of regular armed forces belonging to governments not recognized by the Detaining Power; 9 and

D. Inhabitants of non

- occupied territory who spontaneously take

up arms to re sist invading forces; so

- called levé e s en masse

. 10

iii. Consequently, by A P I, a rt. 50(1), one is either a (lawful) combatant

or a civilian.

b. Unlawful combatants?

i. Neither the Geneva Conventions no r AP I recognize or define a third category of “unlawful combatants.” 11

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

defined the term. 12

iii. The U.S. Congress previously defined “unlawful enemy combatant” for purposes of trial by mili tary commission in the Military

Commissions Act of 2006. 13 In 2009, the Military Commissions Act

was amended

, and instead defined the following terms:

A. Privileged Belligerent

. The term ‘p rivi leged belligerent’ means an individual b elonging to one of the e ight categories

8 Id. art. 4(A)(2). To qualify f or POW status under GC III, art. 4, militias and organized resistance movements belonging to a party to the conflict must: (1) be commanded by a person responsible for his subordinates; (2) have distinctive insignia visible at a distance; (3) carry arms op enly; and (4) conduct operations in accordance with the laws of war. Id. arts. 4(A)(2)(a),(b),(c), and (d).

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

10 Id. art. 4(A)(6). Lev é e s en masse must observe two of the conditions applied to militias and organized

resistance movements: carrying arms openly; and conducting themselves in accordance with the law of

war. Id.

11 Pub. Comm. Against Torture in Israel v. Gov't of Israel, HCJ 769/02 (2005) (“[A]s far as existing law goes, the data before us are not sufficient to recognize this third category [of unlawful combatant]. That is the case according to the current state of international law, both international treaty law and customary international law.”)

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

13 Military Commissions Act of 2006, Pub. L . No. 109

- 366, 120 Stat. 2600.

96 GC IV: Civilians on the Battlefieldenumerated in Article 4 of the Geneva Convention Relative to

the Treatment of Prisoners of War.

B. Unprivileged Enemy Belligerent

. The term ‘unprivileged enemy belligerent’ means an individual (other than a privileged belligerent) who :

1. H as engaged in hostilities against the United States or its coalition partners;

2. H as purposefully and materially suppo rted hostilities against the United States or its coalition partners; or

3. W as a part of al Qaeda at the time of the alleged offense under this chapter. 14

2. Losing Civilian Protections by Taking a “Direct Part in Hostilities.”

a. Direct Part under AP I application . A majority of the international community applies the “direct part” test of AP I

.

i. According to AP I , Art. 51(3), civilians enjoy the general protection

ag ainst dangers arising from military operations “unless and for such time as they take a direct part in hostilities.”

ii. The Commentary to AP I , Art. 51(3) explains “direct part” as “acts of war which by their nature or purpose are likely to cause actual

h arm to the personnel and equipment of the enemy armed forces.” 15

iii. It further explains direct participation “implies a direct causal relationship between the activity engaged in and the harm done to the enemy at the time and place where the activity take s place.” 16

A. Consequently, under AP I , a civilian can only be lawfully, lethally targeted “for such time” that civilian has a direct causal relationship to harm being caused to military personnel or equipment at that point in time.

14 Military Commissions Act of 2009, Pub. L. No. 111

- 84, 123 Stat. 2190.

15 AP Commentary at 619.

16 Id . at 516.

97 GC IV: Civilians on the BattlefieldB. The AP I test is clo sely analogous to a self

- defense response to

an immediate threat.

b. Direct Part under U.S. application

. 17 The U.S. direct part test is generally agreed to expand the spectrum of civilians that can be lawfully, lethally targeted.

i. The U.S. retains the “f or such time” nexus of the AP I test.

ii. However, compared to the AP I “actual harm” test, the U.S. employs a functionality test in determining whether a civilian has directly participated in hostiliti es. This test is drawn from a memorandum of law stating “A civilian entering the theater of operations in support or operation of sensitive, high value equipment, such as a weapon system, may be at risk of intentional attack because of the importance of h is or her duties .” 18

A. A person whose function remains critical at all times would remain a lawful target at all times.

B. A person whose function is critical only while performing a particularly critical, functional task would only be a lawful target duri ng the time he performs the task.

C. The AP I commentary , which is consistent with the U.S. position, excludes general “participation in the war effort” from the definition of “taking a direct part in hostilities”:

“There should be a clear distinction bet ween direct participation in hostilities and participation in the war effort . . . . In modern conflicts, many activities of the

17 The U.S. Department of Defense previously identified those civilians who may be directly targeted as those taking an “active part” in hostilities, derived from the language of Common Article 3 of the Geneva Conventions pertaining to those “[p]ersons not taking an active part in hostilities.” See, e.g., Dep't of the Army, Office of the Judge Advocate General, Int'l Law Dep't, Memorandum, Subj: Law of War Status of Civilians Accompanying Military Forces in the Field (May 6, 1999) (on file with author) [he reinafter Law of War Memorandum].

18 Law of War Memorandum, supra note 17. But see U.S. D EP ’ T OF D EFENSE

, I NSTR

. 1100.22 G UIDANCE

FOR D ETERMINING W ORKFORCE M IX para. E2.1.3.3.2. (Sept. 7

, 2006) [hereinafter DODI 1100.22] (providing that technical advice on the operation of a weapon system or other support of non

discretionary nature performed in direct support of combat operations is not taking direct part in hostilities).

98 GC IV: Civilians on the Battlefieldnation contribute to the conduct of hostilities, directly or indirectly; even the morale of the population plays a role

in this context.” 19

Examples of general “participation in the war effort” that do not constitute direct participation include:

1. Employment in munitions factories;

2. Participation in rationing/conservation efforts;

3. Expressions of support for enemy government ;

4. Provision of purely administrative or logistical support to forces not deployed in hostile territory.

3. International Committee of the Red Cross (ICRC) Interpretive Guidance.

a. Beginning in 2003, the ICRC hosted a series of meetings with academic and military experts 20 from a wide range of geographic and professional backgrounds in an effort to discuss, analyze, and produce a more definitive approach for when a civilian takes a “direct part in hostilities.” The ICRC Interpretive Guidance was published in May, 2009. 21 The ICRC recognizes the guidance does not necessarily reflect a unanimous or majority opinion of the participating experts. 22

b. The ICRC Interpretive Guidance provides the elem ents of direct participation in hostilities as:

i. The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to

19 AP Commentary at 619.

20 W. Hays Parks, Senior Associate Deputy Counsel, Internation al Affairs, Department of Defense Office of General Counsel, attended the meetings in his personal capacity.

21 International Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation

in Hostilities under International Humanita rian Law (2006), available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/direct

- participation

- report_res/$File/direct

participation

- guidance

- 2009

- icrc.pdf. [hereinafter ICRC Interpretive Guidance].

22 The ICRC Interpretive Guidance states, “The inter im guidance is widely informed by the discussions held during these expert meetings but does not necessarily reflect a unanimous or majority view of the experts” Id . at 9.

99 GC IV: Civilians on the Battlefieldinflict death, injury or destruction on persons or objects prot ected against direct attack (threshold of harm); and

ii. There must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation); and

iii. The act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).

c. The U.S. has not issued a formal response or opinion r egarding the ICRC Interpretive Guidance.

C. Non

- International Armed Conflict.

1. “Civilian” Defined.

a. Geneva Conventions . There is no clear definition of civilian under Common Article 3, which provides that “each Party to the conflict” must afford prote ction to “persons taking no active part in hostilities, including

members of the armed forces who have laid down their arms and those placed in hors de combat.”

b. Additional Protocol II (AP II) . There is no clear definition of civilian in AP II; however, AP II, art. 1, states that it applies “in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups.”

c. ICRC Interpretive Guidance.

i. The ICRC Interpretive Guidance states that Common A rticle 3 implies that “both State and non

- State parties have armed forces distinct from the civilian population.” 23 The guidance follows by concluding that Common Article 3 “thus implies a concept of civilian comprising those individuals ‘who do not bear a rms’ on behalf of a party to the conflict.” 24

23 Id. at 28.

24 Id . at 29.

100 GC IV: Civilians on the Battlefieldii. It states that within AP II, art. 1, the term “‘armed forces’ is restricted to State armed forces, whereas the armed forces of non

State parties are referred to as ‘dissident armed forces’ or ‘other organize d armed groups.’” 25 Consequently, civilians are those persons not members of State armed forces or non

- State organized armed groups. 26

iii. It further states that in non

- international armed conflict, organized armed groups consist only of individuals whose continuous function is to take a direct part in hostilities (continuous combat function). 27

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

2. Losing Civilian Protections by Taking a “Direct Part in Hostili ties.”

a. AP II, art. 13, provides that civilians shall enjoy protections against targeting “unless and for such time as they take a direct part in hostilities.”

The AP II C ommentary states that “as regards substance and structure, [art. 13] corresponds t o the first three paragraphs of Article 51 of Protocol I (Protection of the civilian population), and reference may also be made to the commentary thereon.” 28 See the AP I “direct part” discussion

above.

b

. ICRC Interpretive Guidance.

i. Persons belonging to non

– State party organized armed groups cease to be civilians and lose protection against direct attack for as long as they assume their continuous combat function. 29

ii. The elements of direct participation in non

- international armed

conflict are the sam e as those set forth by the Guidance for

international armed conflict.

25 Id . at 29.

26 Id

.

27 Id . at 33

.

28 AP Commentary at 1448.

29 ICRC Interpretive Guidance, supra note 21, at 35.

101 GC IV: Civilians on the Battlefieldiii. The U.S. has not issued a formal response or opinion regarding the ICRC Interpretive Guidance.



### IV. C IVILIAN 

### C ONTRACTORS IN THE 

### A REA OF 

### O PERATIONS 30

A. Army Regul ation 715

- 9, Contractors Accompanying the Force, para. 3

- 3d, (Oct. 29, 1999), states: “In the context of the law of war, contracted support service personnel are civilians accompanying the force. They may be used to perform only selected combat support a nd combat service support activities. They may not be used in or undertake any role that could jeopardize their status as civilians accompanying the force.” Although drafted when the U.S. employed the “active part” test, 31 the regulation does not employ t he term.

1. Prohibition against contractors performing “inherently governmental” functions.

a. Army Regulation 715

- 9, Contractors Accompanying the Force, para. 3

- 3d ( Oct. 29, 19 99), explains in its glossary of terms that:

[f]unctions inherent to, or neces sary for the sustainment of combat operations, that are performed under combat conditions or in otherwise uncontrolled situations, and that require direct control by the military command structure and military training for their proper execution, are consi dered inherently governmental. This includes functions performed exclusively by military (active and reserve) who are trained for combat and the use of deadly force, where performance by a contractor or civilian would violate their non

combatant status un der the Geneva Conventions or represent an inappropriate risk to military operations.

B. Field Manual 3

- 100.21 (100

- 21), Contractors on the Battlefield, para. 6

- 2 (Jan. 2003),

states that contractors cannot “take an active role in hostilities but retain th eir inherent right of self defense.”

30 “Private contractors and employees of a party to an armed conflict who are civilians are entitled to protection against direct attack unless and for such time as they take a direct part in hostilities. Their activities or location may, however, expose them to an increased risk of incidental death . . . .” Id . at 37.

31 See “active part” discussion, supra note 17.

102 GC IV: Civilians on the BattlefieldC. Department of Defense Instruction 3020.41 (2005)

. 32 The instruction addresses permissible functions for contractors accompanying U.S. forces.

1. Paragraph 6.3.5 addresses security functions , stating : “a defense contr actor may be authorized to provide security services for other than uniquely military

functions.”

2. The Instruction leaves unaddressed, however, exactly what functions are uniquely military and whether such functions are context or theater

- dependent.

The Instruction instead states: “Whether a particular use of contract security personnel to protect military assets is permissible is dependent on the facts and requires legal analysis.” The Instruction then cites variables such as the nature of the operati on the type of conflict, and surrounding legal agreements such as status of forces agreements.

3. Ultimate approval for use of contractors as security appears to rest with Combatant Commanders or their general officer designees.

D. Department of Defense In struction 1100.22

. 33 This instruction provides guidance regarding proper employment of military, DoD civilian, and civilian contractors. It explains that inherently governmental functions cannot be legally contracted. 34

1. Substantial discretion.

a. Contra ctors may only be used if services do not involve substantial discretion, which is inherently governmental. 35

b. Because combat operations authorized by the U.S. government entail the exercise of sovereign government authority, involve substantial

discretio n , and can significantly affect the life, liberty, or property of private persons or international relations, they cannot be legally

contracted. 36

32 U.S. D EP ’ T OF D EFENSE

, I NSTR

. 3020.41, C ONTRACTOR P ERSONNEL A UTHORIZED TO A CCOMPANY
U.S. A RMED F ORCES ( Oct. 3

, 2005 ).

33 DODI 1100.22, supra note 18.

34 Id . at para. 6.1.2.

35 Id ., e.g., para. E2.1.4.1.5.

36 Id . at para. E.2.1.3.1. (emphasis added).

103 GC IV: Civilians on the Battlefieldc. A decision [does not require substantial discretion and] is not inherently governmental if it can be limite d or guided by existing policies, procedures, directions, orders, or other guidance that identify specific ranges of acceptable decisions or conduct and subject the discretionary authority to final approval or regular oversight by government officials.

2. Federal Acquisition Regulation (FAR)

. Contracts shall not be used for the performance of inherently governmental functions. 37

a. Although not all inclusive, the following are examples of inherently governmental functions:

i. Direct conduct of criminal inve stigations, control of prosecutions

, and performance of adjudicatory functions other than those relating to arbitration or other methods of alternative dispute resolution.

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

iii. The conduct of foreign relations and the determination of foreign policy.

iv. The direction and control of intelligence and counter

- intelligence operations. 38

b. The FAR requires agencies to i nclude procedures requiring the agency head or designated requirements official to provide the contracting officer, concurrent with the statement of work, a written determination that none of the functions to performed are inherently governmental. 39

c. The Defense Financial Acquisition Regulation Supplement (DFARS) 40
requires the documentation required by the FAR that none of the functions to be performed by contract are inherently governmental:

i. Shall be prepared using DoDI 1100.22; and

37 G ENERAL S ERVS

. A DMIN

. ET AL

., F EDERAL A CQUISITION R EGULATION 7.503(a) (May 2006).

38 Id . at 7.503( c).

39 Id . at 7.503 (e).

40 D EFENSE F EDERAL A CQUISITION R EGULATION S UPPLEMENT (1998 ed., revised May 31, 2007).

104 GC IV: Civilians on the Battlefieldii. Shall include a determination that none of the functions to be performed are exempt from private sector performance, as addressed

in DoDI 1100.22. 41



### V. C ONCLUSION

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

41 Id. at 207.503.

105 GC IV: Civilians on the Battlefield106 GC IV: Civilians on the Battlefield

## GC IV: O CCUPATION AND 

## P OST



## - C ONFLICT 

## G OVERNANCE

I. O BJECTIVES

A. Understanding the legal requirements f or the existence of an occupation.

B. Familiarity with the legal obligations and requirements of the Occupying Power.

C. Understanding the application of the parts and sections, and corresponding protections, found within the Geneva Convention for the Prot ection of Civilians.



### II. O CCUPATION 

### D EFINED

A. General

. Belligerent occupation is the military occupation of enemy territory: “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has

been established and can be exercised.” ( HR, art. 42; FM 27

- 10, para. 351 )

1. Commencement of Occupation is a Question of Fact . A state of occupation

exists when two conditions are sa tisfied: first, the invader has rendered the invaded government incapable of publicly exercising its authority; and second, the invader has successfully substituted its own authority for that of the legitimate government

. ( FM 27

- 10, para. 355 )

2. Occupat ion = Invasion + Firm Control . The radius of occupation is determined by the effectiveness of control; occupation must be actual and

effective

. ( FM 27

- 10, para. 356 )

B. Law . The law of belligerent occupation refers to those provisions of customary or

con ventional international law that regulate the conduct of a belligerent in occupied territory.

C. Proclamation Not Required

. No proclamation of occupation is legally necessary, but

the fact of military occupation should be m ade known ( FM 27

- 10, para. 357 ) . In
post

- WWII Germany, General Eisenhower issued Proclamation Number 1. In Operation I raqi Freedom , L. Paul Bremer, civilian administrator of the Coalition Provisional Authority (CPA) issued Coalition Provisional Authority Regulation

Number 1 1 on 16 May 2003.

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

107
GC IV: OccupationD. No Transfer of Sovereignty.

1. Military occupation does not transfer sovereignty to the Occupant , and the Occupant ’s powers are provisional only; the Occupant may take only those measures necessary for the maintenan ce of law and order and proper administration of the occupied territory

. ( FM 27

- 10, para. 358 )

2. Annexation or the establishment of puppet governments is prohibited

. ( GC IV,

art. 47 )

Pursuant to my authority as Administrator of the Coalition Provisional Authority (CPA), relevant

U.N. Security Council resolutions, including Resolution 1483 (2003), and the laws and usages of war, I hereby promulgate the following:

Section 1, The Coalition Provisional Authority

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

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

Administrator.

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

Section 2, The Applicable Law

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

Section 3, Regulations and Orders issued by the CPA

1) In carrying out the authority and responsibility vested in the CPA, the Administrator will, as necessary, issue Regulations and Orders. Regulations shall be those instruments that define the

institutions and au thorities of the CPA. Orders are binding instructions issued by the CPA. Regulations and Orders will remain in force until repealed by the Administrator or superseded by legislation issued by democratic institutions of Iraq. Regulations and Orders issue d by the Administrator shall take precedence over all other laws and publications to the extent such other laws and publications are inconsistent. The Administrator may also from time to time issue Public

Notices.

. . .

108
GC IV: OccupationE. Termination

. Occupation does not end upon cessation of hostilities, but continues until full sovereignty of the occupied area is returned to the displaced sovereign, or

until sov ereignty is assumed by another S tate.

1. “In the case of occupied territory, the application of the present Convent ion shall cease one year after the general close of military operations. . .” ( GC IV, art. 6(2) )

2. But

, AP I, art

. 3(b) of purports to replace GC IV, art

. 6(2). Article 3(b) rejects

the one

- year expiration, extending application of the Conventions and Pr otocol until “termination of the occupation.” 2

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

.



### III. A UTHORITY O F 

### O CCUPANT

A. “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the mea sures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented , the laws in force in the country.” ( HR IV , art. 43 (emphasis added))

1. Authority of occupying force is supreme, constrai ned only by:

a. The doctrine of military necessity ; and

b. Limitations imposed by binding international law, including customs and

treaties

, such as the rights of protected persons contained in GC IV

.

2. Occupant is obligated to maintain public order and h as the right to demand

obedience of inhabitants

.

3. All functions of legitimate government cease upon commencement of occupation; functions of government continue only to extent Occupant allows

. ( FM 27

- 10, para. 367 )

B. Applicable Law . “The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupant in cases where

2 AP Commentary at 67

- 68.

109
GC IV: Occupationthey constitute a threat to its security or an obstacle to the application of the present

Convention.” ( GC IV, art. 64 )

1. Occupant does not bring its own jurisdiction and civil and criminal laws; ordinarily, laws of occupied country continue in force and courts continue to sit and try criminal cases not of a military nature

. ( GC IV, art. 64 )

2. Local courts should be used when feasible , but may be suspended if:

a. Judicial personnel will not perform their duties ;

b. Courts are corrupt or unfairly constituted ;

c. Local courts have ceased to function ; or

d. Judicial process does not comply with fundamental human rights

.

3. O ccupant may establish military courts or provost courts

.

a. May be used to try violations of occupation provisions or regulations

.

b. May be used if properly constituted, non

- political, and located in occupied territory

.

4. Occupant may suspend, repeal, or a l ter existing laws, or promulgate new laws, if required by military necessity, maintenance of order, or welfare of the population

. ( HR, art. 43; GC IV, art. 64(3) )

5. Suspension or repeal of local laws should be related to security of the force,

mission accomplishment, or compliance with international law. Examples:

a. Suspension of the right to bear arms ;

b. Suspension of the rights of assembly and protest ;

c. Suspension of freedom of movement ; or

d. Suspension of discriminatory laws ;

6. Issuing New La ws.

110
GC IV: Occupationa. Must publish and provide notice to inhabitants in their own language ;

b. Must be published in writing ; and

c. Must not be retroactive

.

d. Occupant has no obligation to comply with the constitutional or procedural rules of the occupied country

.

7. Oc cupying force is exempt from local law and jurisdiction of local courts

. ( FM

27

- 10, para. 374 )

C. Protecting Powers.

1. The Geneva Conventions of 1949 envisioned that interests of parties to conflicts would be safeguarded by neutral nations designated as “ Protecting Powers

. ” 3

2. Protecting Powers have a named role in certain aspects of occupation

.

3. AP I restated and clarified duties of parties to conflicts to designate Protecting

Parties or substitutes

. (AP I, art. 5 )

4. In practice, such designations ar e rare; ICRC often serves as substitute

. ( GC IV,

art. 11 )



### IV. S ECURITY OF THE 

### O CCUPANT

A. Enforcement and Obedience.

3 “The pr esent Convention shall be applied with the cooperation and under the scrutiny of the Protecting

Powers whose duty it is to safeguard the interests of the Parties to the conflict. For this purpose, the Protecting Powers may appoint, apart from their diplom atic or consular staff, delegates from amongst their own nationals or the nationals of other neutral Powers. The said delegates shall be subject to the approval of the Power with which they are to carry out their duties.

The Parties to the conflict shall facilitate to the greatest extent possible, the task of the representatives or delegates of the Protecting Powers.

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

They shall , in particular, take account of the imperative necessities of security of the State wherein they carry out their duties.”

GC IV, art. 9.

111
GC IV: Occupation1. Occupant can demand obedience from inhabitants of occupied territory for the security of its forces, maintenance of law and order, and proper administration

.

2. Inhabitants have duty to behave in a peaceful manner, take no part in hostilities, to refrain from acts harmful to the occupying force and its troops, and to render

strict obedience to or ders of the O ccupant

. ( FM 27

- 10, para. 432 )

B. Security Measures . Military authorities in occupied territories have the right to perform police functions and to protect their own security.

1. The following measures of population control are permissible

. ( GC IV, art s

. 27(4) , 42, 43, 49(2), 64, 66, and 78) :

a. Restricting freedom of movement ;

b. Evacuation ;

c. Under certain exceptional circumstances, persons may be held incommunicado for a limited period ;

d. Judicial process ;

e. Assigned residence ;

f. Inte rnment

.

2. The following measures of population control are forbidden at all times

. ( GC
IV, ar ts. 31, 32, 33(1) and (3), 49(1)) :

a. Violence ;

b. Physical or moral coercion, particularly to obtain information ;

c. Brutality ;

d. Punishment for acts of others (reprisals or collective penalties) ;

e. Deportations

.

C. Publication of Penal Provisions.

112
GC IV: Occupation1. “The penal provisions enacted by the Occupant shall not come into force before they have been published and brought to the knowledge of the inhabitants in

their o wn language. The effect of these penal provisions shall not be

retroactive.” ( GC IV, art. 65 )

2. Publication must be in written form . ( FM 27

- 10, para. 435b )

D. Competent Courts . When penal provisions are breached, O ccupant may try accused

before its ow n properly constituted non

- political military courts, provided such courts sit in the occupied territory; courts of appeal should likewise sit in the occupied territory

. ( GC IV, art. 66 )

E. Applicable Law and Penalties.

1. Courts shall apply those laws in effect prior to the offense

.

2. Penalties shall be proportionate to the offenses committed and shall take into

account that the inhabitants are not nationals of the Occupant. ( GC IV, art. 67 )

3. Offenses against Occupant which (a) do not constitute attemp ts on life or limb of members of occupying forces, (b) do not pose a grave collective danger, or (c) do not seriously damage property of the occupying forces shall carry a punishment of internment or simple imprisonment proportionate to the offense

committ ed . ( GC IV, art. 68 )

4. Death Penalty.

a. Occupant may only impose death penalty on protected persons convicted of espionage, serious acts of sabotage against military installations, or intentional offenses which have caused the death of one or more perso ns

. ( GC IV, art. 68 )

b. Death penalty may not be imposed on protected persons less than 18 years of age at the time of the offense

. ( GC IV, art. 68 )

c. Death penalty may only be imposed for those offenses that were punishable by death under the law of th e territory prior to occupation

. ( GC IV, art. 68 )

d. U.S. Reservation: U.S. has reserved the right to impose the death penalty without regard to whether the offense was punishable by death under the law of the occupied territory prior to occupation . ( FM 27

- 10, para. 438b )

113
GC IV: Occupatione. No person condemned to death shall be deprived of the right to petition for pardon or reprieve; execution of the death sentence suspended for 6 months absent grave emergency involving organized threat to Occupant or its forces

. ( GC IV, art. 75 )

5. Other Offenses and Penalties.

a. Fines and other penalties not involving deprivation of liberty may also be imposed

. ( FM 27

- 10, para. 438c )

b. Period of time a person spends under arrest awaiting trial or punishment

shall be deducted from any sentence of imprisonment

. ( GC IV, art. 69 )

F. Pre

- Occupation Offenses.

1. Protected persons shall not be arrested, prosecuted

, or convicted by the Occupant for offenses committed before the occupation, except for violations of

the law of war

. ( GC IV, art. 70 )

2. Nationals of the Occupant who sought refuge in the occupied territory shall not be arrested, prosecuted, convicted

, or deported from the occupied territory, except as follows:

a. For offenses committed after the outbreak of hostilities ;

b. For offenses committed before the outbreak of hostilities which would have justified extradition in time of peace ;

G. Penal Procedure.

1. Occupant may pronounce sentence only after a regular trial

. ( GC IV, art. 71 )

2. Occupant must promptly provide those acc used of crimes with a written copy of the charges in a language they understand; trial must be held as rapidly as possible

. ( GC IV, art. 71 )

3. Accused persons have the following rights at trial (GC IV, art. 72) :

a. To present evidence and call witnesses ;

b. To be represented by a qualified counsel or advocate of their choice

, and time to prepare their defense ;

114
GC IV: Occupationc. To have the assistance of an interpreter ;

d. To appeal (not absolute)

.

4. Protecting Power

. ( GC IV, art. 74 )

a. Occupant must advise Protecting Power of proceedings involving the death penalty, or imprisonment for 2 years or more, and must notify the Protecting Power of any final judgment confirming a death sentence

.

b. Representatives of the Protecting Power may attend trial of any accused

perso n except for those c ases involving security of the O ccupant; Occupant must send date and place of trial to Protecting Power

.

c. Protecting Power may appoint the accused counsel or an advocate

.



### V. P ROPERTY

A. Destruction Prohibited

. Destroying or seizing enemy property is prohibited, unless such destruction or seizure is demanded by imperative necessities of war (HR, art.

23 (g)); O ccupant is prohibited from destroying real or personal property ( S tate or private) unle ss absolutely necessary due to military operations. (GC IV, art. 53)

B. Pillage . Pillage, or looting by occupation troops, is strictly forbidden. (HR, art. 47; GC IV, art. 33)

C. Property Control . Occupant may control property within occupied territory to extent necessary to prevent use by hostile forces. (FM 27

- 10, para. 399)

D. Definitions.

1. Seizure

. The temporary taking of proper, with or without authorization from the local commander. Generally, the on

- scene commander is the authority to

seize property. Seizing, or temporarily taking, private property that has a direct military use (i.e., broadcasting or communications equipment) is permissible,

but Soldiers must provide the owner a receipt to reclaim the property later, as well as compensation for any damage to the property

. (FM 27

- 10, para. 409)

2. Confiscation . Confiscating, or permanently taking, private property is not permissible

.

115
GC IV: Occupation3. Requisition . Requisitioning of services and property from the population is permissible if ordered by th e local commander and paid for in cash; food or other items needed by the civilian population may only be requisitioned after taking those needs into consideration

. (FM 27

- 10, paras. 412

- 415)

E. Ownership.

1. Beneficial Ownership . It may be necessary t o look beyond legal title to determine whether property is public or private; evaluate character of property

based on who benefits from ownership, i.e., private trust funds are not public property just because they are held in a state bank

. ( FM 27

- 10, para

. 394a )

2. Mixed or Unknown Ownership . Property is public if S tate has assumed economic risk involved in holding and managing the property; if owner unknown, treat as public until ownership ascertained

. ( FM 27

- 10, para. 394b, c )

F. State Property.

1. Occu pant serves as administrator and conservator of public buildings, real estate, forests, and agricultural estates belong ing to the hostile State; O ccupant must safeguard and administer . (HR, art. 55)

2. Real property of direct military use (forts, arsenals , dockyards, magazines, barracks, railways, bridges, piers, wharves, airfields, and other military facilities) remain i n O ccupant’s control until close of the war and may be damaged or destroyed if militarily necessary

. (FM 27

- 10, para. 401)

3. Non

- milita ry real property may not be damaged or destroyed unless military operations render absolutely necessary; Occupant may not sell real property or

lessen its value

. (FM 27

- 10, para. 402)

4. Movable Property.

a. “An army of occupation can only take possession of cash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which may be use d for operations of the war.” (HR , art. 53)

b. Classes of Movable Property . All movable property susceptible to military use may be taken and used by the Occupant ; all other property must be respected and may not be appropriated . ( FM 27

- 10, para. 404)

116
GC IV: OccupationG. Private Property.

1. Municipal, R eligious, Charitable, and Cultural Property . Even where such property belongs to the State, it shall be treated as private property; seizure and

destruction is forbidden

. ( HR, art. 56 )

a. Such premises may be requisitioned in the event of necessity for

q uartering troops and the sick and wounded, storage of supplies and material, housing of vehicles and equipment, and otherwise as allowed for private property; must secure against all avoidable injury

. ( FM 27

- 10,

para. 405b )

b. It is U.S. practice that

— if emergency conditions require such use

— religious buildings, shrines, and consecrated places employed for worship are to be employed only as aid stations, medical installations, or for housing the wounded awaiting evacuation

. ( FM 27

- 10, para. 405c )

2. No Co nfiscation of Private Property . Prohibition extends to outright takings as well as to any acts that, by use of threats, intimidation, or pressure, or by actual exploitation of the Occupant ’s power, permanently or temporarily deprives the owner of the prop erty without consent or without authority under international

law. ( HR , art. 46 para. 2; FM 27

- 10, para. 406b)

. Private real property may not be seized, but may be requisitioned. ( FM 27

- 10, para. 407 )

3. Private Property Susceptible to Direct Military U se.

a. Property such as cables, telephone and telegraph plants, radio, television, and telecommunications equipment, motor vehicles, railways, railway plants, port facilities, ships in port, barges and other watercraft, airfields, aircraft, depots of war, all varieties of military equipment, including that in the hands of manufacturers, component parts of or material suitable only for use in the foregoing, and in general all kinds of war material, may be seized provided a receipt is given to the owner for r eturn of the property and/or compensation . ( GC IV, art. 53; FM 27

- 10, para. 410a )

b. Destruction of any of the foregoing is permissible only if rendered absolutely necessary by military operations

. ( GC IV, art. 53; FM 27

- 10,

para. 410b )

H. Requisitions.

1. Requisitions in kind and services shall be made only for the needs of the occupying army; shall be in proportion to the resources of the country; shall be

117
GC IV: Occupationdemanded only by the commander of the occupied locality; and shall be paid for in cash so far as p ossible

. ( HR, art. 52 )

2. Almost everything may be requisitioned for the maintenance of the army: fuel, food, clothing, building materials, machinery, tools, vehicles, furnishings for quarters; billeting of troops in occupied areas is authorized . ( FM 27

- 10, para. 412b )

3. Requisitioning of food and medical supplies in the occupied territory is only permissible for use by the occupation forces and administration personnel

, and only if the needs of the civilian population have been taken into account; the Occupant shall pay fair value for any requisitioned goods

. ( GC IV, art. 55 para. 2 )

4. Coercive measures must be limited to the amount and kind necessary to secure the requisitioned articles

. ( FM 27

- 10, para. 417 )



### VI. S ERVICES O F 

### O CCUPIED 

### P OPULATION

A. L abor.

1. “The Occupant may not compel protected persons to serve in it s armed or auxiliary forces.” ( GC IV, art. 51 )

2. Permissible Work . Protected persons over age 18 may only be compelled to do work necessary for the needs of the occupation army, for p ublic utility services, or for feeding, sheltering, clothing, transportation or health of occupied population; no military operations . ( GC IV, art. 51 )

3. Prohibited Labor . Prohibition against working in support of military operations

includes services di rectly promoting the ends of the war such as construction of fortifications, entrenchments, and military airfields or the transportation of supplies or ammunition in the zone of operations; however, voluntary employment for pay to do such work is permitted

. ( FM 27

- 10, para. 420 )

B. Services That May be Requisitioned.

1. Professional services

, to include: engineers, physicians and nurses, artisans and laborers such as clerks, carpenters, butchers, bakers, and truck drivers . (FM 27

­ 10, para. 419)

2. Officia ls and employees of railways, truck lines, airlines, canals, river or coastwise steamship companies, telephone, telegraph, radio, postal and similar

118
GC IV: Occupationservices, gas, electric, and water works, and sanitary authorities . (FM 27

- 10, para. 419)

3. Repair of road s, bridges, and railways and services on behalf of local population

, including care for wounded and sick and burial of the dead . (FM 27

­ 10, para. 419)

C. Protection of Workers . “All measures aimed at creating unemployment or at restricting the opportuniti es offered to workers in an occupied territory, in order to

induce them to work for the Occupant , are prohibited.” ( GC IV, art. 54 )

D. Judges and Public Officials.

1. Occupant may not alter status of judges or public officials or coerce or discriminate ag ainst them for not fulfilling their functions based on reasons of conscience; however, Occupant may remove officials from their posts . ( GC IV,

art. 54 )

2. Oath . Occupant may require officials to take an oath to perform their duties conscientiously, and f ailure to do so may result in removal ( FM 27

- 10, para. 423 ) ; distinguish this oath of obedience from an oath of allegiance to the Occupant , which is forbidden

. ( HR, art. 45 )

3. Salaries . Civil officials such as judges, administrative or police officers, and officers of city governments are paid from public revenues of occupied territory until military government has reason to dispense with their services

. ( FM 27

­ 10, para. 424 )



### VII. P UBLIC 

### F INANCE

A. Taxes.

1. If Occupant collects taxes, dues, and tolls f or the benefit of the occupied state, it shall be done in accordance with existing rules of incidence and assessment

. ( HR, art. 48 )

2. Taxes shall be applied first to the costs of administering the occupied territory, and the balance may be used for the n eeds of the Occupant. ( FM 27

- 10, para. 425b )

3. No new taxes may be levied by Occupant unless considerations of public order and safety so require . ( FM 27

- 10, para. 426b )

119
GC IV: OccupationB. Contributions.

1. If the Occupant levies money contributions in addition to taxe s, these may only be for the needs of the army or for administration of the occupied territory

. ( HR, art. 49 )

2. Contributions may only be collected pursuant to a written order, and receipts shall be given for all contributions . ( HR, art. 51 )

C. Costs of Occupation.

1. Economy of occupied country can be required to bear expenses of occupation, which should not be greater than the economy can reasonably be expected to

bear

. ( FM 27

- 10, para. 364 )

2. In practice , U.S. occupation expenses are funded by Depar tment of Defense appropriations

.



### VIII. C IVILIAN 

### P ROTECTIONS 

### – E NTIRE POPULATION

A. Background

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

B. G C IV, Part II

- Protection of the Entire Population

. Although GC IV was the first law of war treaty devoted exclusively to the protection of civilians, with the exception of Common Article 3, only Part II of the treaty applies to every civilian in the

are a of conflic t

. GC IV, art. 13 states that “the provisions of Part II cover the whole of the populations of the countries in conflict, without any adverse distinction based, in particular, on race nationality, religion or political opinion, and are intende d to alleviate the suffering caused by war.”

1. Article 15 of GC IV . Provides for, but does not mandate, the establishment of

“neutralized zones” (temporary zones in the area of combat) to shelter from

the effects of war:

a. Woun ded and sick combatants and non

- combatants;

120
GC IV: Occupationb. Civilian persons who take no part in hostilities, and who, while they reside in the zones, perform no work of a military character.

2. Article 14 of GC IV . Provides for, but does not mandate, the establishmen t of “hospital/safety zones” (p ermanent structures establish ed outside combat area)

to shelter from the effects of war “Special Needs” civilians:

a. Mothers of children under seven;

b. Wounded, sick, and infirm;

c. Aged;

d. Children under the age of 15; and

e. Expectant mothers.

3. Further Protections of the Entire Population . In addition to providing for the establishment of these “protected” zones, Part II also mandates the following protectio ns:

a. The wounded, sick, infirm and expectant mothers must be “respected and protected” by all parties to the conflict at all times (GC IV

, art. 16)

b. Agreements should be reached to allow for removal of special needs individuals from besieged areas and the passage of ministers and medical personnel to such areas. (GC IV

, art. 17)

c. Civilian Hospitals shall not be the object of attack. (GC IV

, art. 18)

d. Allow passage of consignments of medical supplies, foodstuffs

, and clothing. (GC IV

, art. 23)

e. Pr otection and maintenance of orphans

, or those separated from their family who are under the age of 15. (GC IV

, art. 24)

f. Rights to communicate with family via correspondence (GC IV

, art. 25)



### IX. S TATUS AND 

### T REATMENT O F 

### “ P ROTECTED 

### P ERSONS 

### ”

A. Part III Pr otections . The protected persons analysis is the next step in the GC IV protection scheme. Individuals who meet the definition of “protected person” already

121
GC IV: Occupationqualify for Part II protections; however, they will also receive additional coverage from GC IV, Part III. The specific protections, found within the various sections of Part III, are governed by the type of conflict ongoing in the territory in which the

individual finds him or herself. Generally, protected persons are entitled, in all

circumstances , to respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs. (GC IV, art. 27)

B. Protected Persons

. (GC IV

, a rt. 4, p ara. 1). “Pers ons protected by the Convention are those who, at a given moment and in any manner whatsoever find themselves, in case of conflict or occupation, in the hands of a party to the conflict or occupying power of which they are not nationals.” Based on this de finition, the following qualify as protected persons:

1. Civilian enemy nationals within the national territory of each of the parties to

the conflict. Example: Iraqi students in the U.S. at the outset of the 2003 Iraq

War. Note: Nationals of a neutral or co

- belligerent State are not protected persons if their country has normal diplomatic relations with the State in which they are located.

2. The population of occupied territories , excluding nationals of the occupying

power and co

- belligerent s

. Example : In the case of Operation Iraqi Freedom, once Iraq was occupied, all civilians in Iraq who were not nationals of the States that comprised the coalition became protected persons.

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

threshold definition found in article 4.

1. Nationals of belligerent State during hostilities, prior to occupation. Both

Article 5 and Part III elaborate on treatment of protected persons by bifurcating them into two categories:

a. Nationals of belligerents living in enemy territory; and

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

Neither of these categories includes national s of the State, during hostilities (prior to occupation). This achieves what is initially an attractive result by excluding unlawful combatants seized on an active battlefield from protected person status. Yet the exclusion may cause concern when it oper ates to exclude

innocent civilians from the same status.

2. Nationals of the Occupying or Hostile Force.

1 22
GC IV: Occupation3. Nationals of a Party not bound by the Convention.

4. Nationals of a Neutral State (if that state has normal diplomatic representation

within the hos tile state). This exception does not apply in occupied territories; neutrals are protected persons in occupied territories regardless of diplomatic

relations. Note: The rule on its face only applies to Neutrals who find themselves in the territory of a b elligerent state. In belligerent territory, the drafters believed that the “position of neutrals is still governed by any treaties concerning the legal status of aliens and their diplomatic representatives can take steps to protect them. In occupied terr itory, on the other hand, the diplomatic representatives in neutral States, even assuming that they remain there, are not accredited to the Occupying Power but only to the occupied Power.” (GC IV Commentary at 49)

5. Nationals of Co

- belligerent (an ally).

6. Persons protected by any of the other three Conventions.



### X. S PECIFIC 

### A RTICLES 

### A DDRESSING 

### P ROTECTED 

### P ERSONS

A. Before reviewing the protections available to protected persons, it is important to note that, protected persons may in no circumstances renou nce in part or in entirety the rights secured to them by GC IV . (GC IV, art. 8)

B. Part III, Section I

– The General Standard: “Protected persons are entitled in all circumstances, to respect for their person s, their honor, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated.” (GC IV

, art. 27)

1. Respect for Their Persons

. Intended to grant a wide array of rights to protec t physical, moral, and intellectual integrities. (GC IV

, art. 27)

2. Respect for Honor

. Acts such as slander, insults, and humiliation are prohibited. (GC IV

, art. 27)

3. Respect for Family Rights . Arbitrary acts which interfere with marital ties, the

f

amily dwelling, and family ties are prohibited. This is reinforced by GC IV

,

a rt. 82, that requires, in the case of internment, that families be housed together. (GC IV

, art. 27)

4. Respect for Religious Convictions

. Arbitrary acts which interfere with the observances, services, and rites are prohibited (only acts necessary for maintenance of public order/safety are permitted). (GC IV

, art. 27)

123
GC IV: Occupation5. Respect for Manners and Customs

. Intended to protect the class of behavior which defines a particular cult ure. This provision was introduced in response to the attempts by World War II Powers to effect “cultural genocide.” (GC IV

, art. 27)

6. No insults and exposure to public curiosity. (GC IV

, art. 27)

7. No rape, enforced prostitution, and indecent assaul t on women. (GC IV

, art. 27)

8. No using physical presence of persons to make a place immune from attack. (GC IV

, art. 28)

9. No physical or moral coercion, particularly to obtain information. (GC IV

, arts. 31 and 33)

10. No actions causing physical suf fering, intimidation, or extermination; including murder, torture, corporal punishment, mutilation, brutality, and medical/scientific experimentation. (G C IV

, art. 32)

11. No pillaging (under any circumstances and at any location). (GC IV

, art. 33)

12. N o collective penalties. (GC IV

, art. 33)

13. No reprisals against the person or his property. (GC IV

, art. 33)

14. No taking of hostages (GC IV

, art. 34)

C. Part III, Section II: Protections specifically for aliens within the territory of a party to

the conflict

. This section affords protected persons with many of the same rights and privileges as host nation civilians.

1. Right to Leave the Territory . (GC IV

, a rt. 35). (Right may be overcome by t he

national interests (s ecurity) of the State.)

2. Right to Humane Treatment during Confinement . Protected persons are entitled to the quality of treatment recognized by the civilized world, even if it exceeds the quality of treatment that a Detaining Pow er grants to its own citizens. (GC

IV

, art. 37)

3. Right to receive relief packages, medical attention, and practice of their religion. (GC IV

, art. 38)

124
GC IV: Occupation4. Right to find gainful employment, subject to security concerns. If no employment is possible, the Party shall ensure support. ( GC IV

, art. 39)

5. Limitations on the Type and Nature of Labor. ( G C I V

, a r t

. 4 0 )

a. Can only be compelled to work to the same extent as nationals.

b. Cannot be forced to contribute to the war effort of their enemy.

c. These protected persons may be interned or placed in assigned residence if the security of the Detaining power makes it absolutely necessary. (GC IV, art. 42)

D. Part III, Section III: Specific Protections for Protected Persons in Occupied Territory

.

1. Human Rights.

a

. “Family honor and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected.” (HR, art. 46( 1 ) )

b

. “ Protected persons are entitle d, in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all a cts of violence or threats thereof and against insults and public curiosity. Women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent

assault.” ( GC IV, art. 27 )

2. R epatriation . Protected persons not nationals of the power whose territory is occupied may leave the territory. ( GC IV art s . 35 and 48 )

3. Deportations, Evacuations, and Transfers. ( GC IV, art. 49 )

a

. Deportations of protected persons out of the occupied territory and forcible individual or mass transfers are prohibited

.

b

. If security or military necessity requires it, the Occupant may partially or completely evacuate a given area, but not outside of occupied territory

unless it cannot be avoided

.

c

. Occ upant may not relocate its own population into occupied territory

.

125
GC IV: Occupation4. Children. (GC IV, art. 50)

a

. Occupant shall facilitate proper working of institutions devoted to care and

education of children

.

b

. Occupant shall take all necessary steps to facilitat e identification of children and registration of parentage

.

c

. Occupant shall arrange for the maintenance and education (if possible, by persons of the same nationality, religion, and language) of children orphaned or separated from their parents

.

d

. Occup ant shall take all necessary steps to identify children whose identity

is in doubt

.

e

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

effects of war

.

5. Food and Medical Supplies . Occupant has duty to ensure population has food and medical supplies, particularly if resources of occupied territory are inadequate

. ( GC IV, art. 55

, paras. 1 and 3; AP I, art. 14 )

6. Hygiene and Public Health . Occupant has duty to ensure and maintain medical and hospital establishments and services and public health and hygiene in the occupied territory

. ( GC IV, art. 56 )

7. Requisition of Hospitals . In cases of urgent necessity for care of military wounded and sick, Occupant may requisition civilian hospitals provided that Occupant arranges for care of civilian patients; if materials and stores of civilian hospitals are needed for civilian population, cannot be requisitioned

. ( GC IV,

art. 57 )

8. Spiritual Assistance . Occupant shall allow clergy to provide religious and spiritual assistance to their religious communities; Occupant shall accept religious articles and books and arrange for their distribution

. ( G C IV, art. 58 )

9. Relief.

a

. Collective Relief . If all or part of the population of an occupied territory needs supplies, then the Occupant shall agree to and facilitate relief schemes through other states or the International Committee of the Red

126
GC IV: OccupationCross ( ICRC); provisions shall consist of food, clothing, and medical supplies; passage of such consignments must be permitted and protected

. ( GC IV, art. 59 )

b

. Responsibilities of Occupant . Relief consignments do not relieve the Occupant of its obligations re garding food and medical supplies, hygiene, and public health, nor may the Occupant divert such relief consignments from their intended purpose

. ( GC IV, art. 60 )

c. Relief Consignments

i

. Distribution . All contracting parties shall make every effort to

e nsure transit and transport of relief consignments to occupied territories; such consignments shall be exempt from charges, taxes,

or customs duties

. ( GC IV, art. 61; AP I, art

. 81 )

ii

. Individual Relief . Protected persons in occupied territories shall b e allowed to receive individual consignments sent to them

. ( GC IV,

art. 62 )

10

. Relief Societies . Recognized national Red Cross, Red Crescent, and Red Lion and Sun societies shall be permitted to pursue their activities, as shall other humanitarian organ izations; Occupant may not require changes to personnel or

structure of such societies . ( GC IV, art. 63 )



### XI. I NTERNMENT O F 

### P ROTECTED 

### P ERSONS

A. Most severe form of non

- penal related restraint permitted

. E ven if the detaining Power finds that neither internment nor assigned residence serves as an adequate measure of control, it may not use any measure of control that is more severe. (GC IV, arts. 41 and 78)

B. Subject to periodic review (6 month s) by a competent body. ( GC IV

, arts. 43 and 78).

C. GC IV , Part III, Section IV: Internment , identifies the protections afforded to

pro tected persons who are interned:

1. Grouped as families whenever possible. (GC IV, art. 82)

2. Separate from POWs and C riminals . Internees “shall be accommodated separately from prisoners of war and persons deprived of liberty for any other reason.” (GC IV, art. 84)

127
GC IV: Occupation3. Proper housing. (GC IV, a rt. 85)

4. Sufficient food, water and clothes. (GC IV, a r t. 89)

5. Adequate infirmary with qualified doctor. (GC IV, art. 91)

6. Complete religious freedom. (GC IV, art. 93)

7. Right to control property and money. (GC IV, art. 97)

8. Must post convention in native language, right to petition for redress of grievances

, and elect internee committee. (GC IV, arts. 99

– 102)

9. Right to notify family of location and send and receive letters. (GC IV, arts.

105

– 107)

10. Laws in place continue to apply (subject to operational imperatives) ; internees cannot be sent to penitentiaries for disciplinary violations. (GC IV, art. 117)

11. Transfers must be done safely and notice must be given to internee’s family. (GC IV, art. 128)

12. Must issue death certificates. Must conduct inquiry if death of internee is caused by sentry or other internee. (GC IV, arts. 129

– 131)

13. Internment shall cease as soon as possible after the close of hostilities. (GC IV, art. 133)



### XII. D EROGATIONS

A. In addition to outlining protected persons’ status and associated protections, GC IV, art. 5, provides for the suspension of protections generally based on hostile acts. Details on such derogations are provided for protected persons seized in two specific

circumstances:

1. Protected persons suspected or who have engaged in activities hostile to the

securi ty of the State in an enemy S tate’s territory . In these circumstances, the State may suspend any right or privilege under GC IV that would prove prejudicial to the security of the State.

128
GC IV: Occupation2. Protected persons detained as spies, saboteurs, or suspected of a ctivity hostile to

an occupying power . In an occupation, the Occupant may suspend only rights

of communication under GC IV.

3. Thus, under Article 5, it is clear that alien unlawful combatants seized in the territory of the detaining power stand to have f ar more protections suspended than those seized by an Occupant in occupied territory.



### XIII. C ONCLUSION

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

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



### F OR 

### F URTHER 

### R EADING

A. Y ORAM D INSTEIN

, T HE I NTERNATIONAL L AW OF B ELLIGERENT O CCUPATION (2009).

B. E YAL B ENVENISTI

, T HE I NTERNATIONAL L AW OF O CCUPATION (1993).

C. I NTERNATIONAL L AW AND THE A DMINISTRATION OF O CCUPIED T ERRITORIES : T WO
D ECADES OF I SRAELI O CCUPATION OF THE W EST B ANK AND G AZA S TRIP (Emma Playfair, ed., 1992).

D. R AJA S HEHADEH

, O CCUPIER ’ S L AW : I SRAEL AND THE W EST B ANK (1985).

4 David Glazier, Ignorance is Not Bliss: The Law of Belligerent Occupation and the U.S. Invasion of Iraq,

58 R UTGERS L

. R EV . 121 (2005).

5 Adam Roberts, Transformative Military Occupation: Applying the Laws of War and Human Rights , 100

A M

. J. I NT ’ L L. 580 (2006).

129
GC IV: Occupation130
GC IV: Occupation

## M EANS 

## A ND 

## M ETHODS 

## O F 

## W ARFARE

I. O BJECTIVES

A. Become familiar with the key principles of the law of war.

B. Understand the major precepts that regulate the use of weapons in conflict.

C. Recognize the difference between a “ruse” and “perfidy.”



### II. B ACKGROUND

A. “Means and methods” is the term commonly used to refer to the area of law governing the conduct of hostilities

— the jus in bello. The “justness” of the conflict or how the parties ended up in armed conflict is not addressed. Rather, this area of law deals with how the parties conduct the armed conflict once engaged.

B. Portions of this area of law overlap and intermingle with other key law of war documents, particularly the 1949 Geneva Conventions. Therefore, it is important when working in this area to also read and cross

- reference the related Geneva Conventions to ensure a complete pi cture of the relevant law.

C. This area of law addresses two interrelated areas: (1) the methods of warfare; that is, tactics or how we go about fighting; and (2) the means of warfare, that is, what instruments of war we use to fight. This outline discuss es both areas.



### III. P RIN C IPLES

A. The four key principles of the law of war:

1. Military necessity/military objective

2. Distinction/discrimination

3. Proportionality

4. Humanity/unnecessary suffering

B. Principle of Military Necessity

. That principle which justifies those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy as soon as possible. (FM 27

- 10, para. 3). It was defined

131 War Crimes and Command Responsibilityoriginally in the Lieber Code: “ those measures which are indispensable for securing the ends of war, and which are lawful according to the modern laws and usages of war.” (Lieber Code, art. 14).

1. These definitions have two common elements:

a. A military requirement to undertake the ac tion; and

b. The action must not be forbidden by the law of war.

2. Are there any exceptions to these elements? In other w ords, can the military requirement to undertake the action be so great that it can overcome a prohibition in international law?

a. Cr iminal Defense . Military necessity has been argued as a defense to law of war violations and has generally been rejected as a defense for acts forbidden by customary and conventional laws of war. Rationale: laws of

war were crafted to include considerat ion of military necessity. A subtle distinction has been drawn, however, between acts/violations that affect people versus those that affect property.

i. Protected Persons . Law prohibits the intentional targeting of protected persons (as defined in the G eneva Conventions) under any circumstances. World War II Germans, under a concept called “Kreigsraison,” argued that sometimes dire military circumstances

allowed them to violate international law

— i.e., kill prisoners at Malmedy because they had no provis ions for them and their retention would have jeopardized the German attack. This reasoning was rejected at Nuremberg: “[t]he rules of international law must be

followed even if it results in the loss of a battle or even a war.”

ii. Protected Places

- The Rendulic Rule

. The law of war does allow for destruction of civilian property, if military necessity “imperatively demands” such action (HR, art. 23(g); FM 27

- 10, para. 56 and 58.)) The circumstances requiring destruction of protec ted property are those of “urgent military necessity” as they appear to

the commander at the time of the decision. 1 Charges that General Lothar Rendulic unlawfully destroyed civilian property via a “scorched earth” policy were dismissed by the Tribunal be cause “the conditions, as they appeared to the defendant at the time were

1 See IX Nuremberg Military Tribunals, Trials of War Criminals Before the Nuremberg Military

Tribunals , 1113 ( 1950).

132 War Crimes and Command Responsibilitysufficient upon which he could honestly conclude that urgent military necessity warranted the decision made.” 2

3. Military objective

. Military objective i s a component of military necessity. Once a commander determines he or she has a military necessity to take a certain action or strike a certain target, then he or she must determine that the target is a valid military objective. The current definition o f a military objective is found in AP I, art

. 52(2): “those objects which by their nature, 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.”

a. “Nature, location, purpose, or use”

i. “Nature” is defined in the Commentary as “all objects used directly by the armed forces,” such as weapons, tanks, transports, etc.

ii. “Location” is define d in the Commentary as “a site which is of special importance for military operations in view of its location,” such as a bridge or a piece of ground.

iii. “Purpose” is defined in the Commentary as “concerned with the intended future use of an object.”

iv. “Use,” on the other hand, is defined in the Commentary as “concerned with [the object’s] present function,” such as a school being used as a military headquarters.

b. “Make an effective contribution to military action.” In theory, even if the object is c learly military in nature, such as a tank, if it does not meet this test (e.g., it is sitting out in the desert, abandoned), it is not a military objective. In reality, such a target would be extremely low on the target list anyway as it would not be cons idered an effective use of limited

resources.

c. “Offers a definite military advantage.” The Commentary states that it is not legitimate to launch an attack which only offers potential or indeterminate advantages. This raises interesting questions regard ing attacking enemy morale, deception operations, and strategic views of advantage versus tactical advantages of individual attacks.

2 Id.

133 War Crimes and Command Responsibility4. People.

a. Determining who can be a valid target is either a status

- based or conduct

based determination.

b. Status

- base d

. The easiest situation is when you are facing an enemy that has been declared a “hostile force.” If an individual falls into the group of those declared a hostile force, then he may immediately be targeted without any specific conduc t on his part.

i. Combatants are generally defined as anyone engaging in hostilities in an armed conflict on behalf of a party to the conflict. Combatants

are lawful ta rgets unless “out of combat.”

ii. Combatants are often referred to as “lawful” combatan ts if they fall

under the definition given in GC III for those entitled to POW status:

A. Under responsible command;

B. Distinctive sign recognizable at a distance;

C. Carry arms openly; and

D. Abide by the laws of war. For a fuller discussion of these

cr iteria, see the chapter on Geneva Convention III, Prisoners of

War in this deskbook.

E. Oftentimes you will also hear the phrase “unlawful combatants.” There is no such term in the law of war; however, it was used by the Supreme Court in Ex parte Quirin, 317 U.S. 1 (1942), to refer to those who engaged in combat but had no right to do so. These individuals do not meet the criteria listed above, and not only may be targeted, but will not receive the protections of prisoners of war. They may be

treated as criminals under the domestic law of the captor. An unlawful combatant can be a civilian who is participating in the

hostilities or a member of the armed forces who violates the

laws of war.

c. Conduct

- based . As noted above, an unlawful combatant, by his or her conduct, can become a lawful target. Thus, although they are not a part of a group declared a hostile force, by their hostile acts they become a legitimate target.

134 War Crimes and Command Responsibilityd. Non

- combatants

. The law of war prohibits attacks on non

- combatants, to

include those sometimes referred to as those hors de combat , or out of

combat.

i. Civilians.

A. General Rule . Civilians and civilian property may not be the subject or sole object of a military attack. Civilians are persons

who are not mem bers of the enemy’s armed forces, and who do not take part in the hostilities (AP I, arts. 50 and 51).

B. Furthermore, AP I provides for expanded protections of the civilian population from “indiscriminate” attacks.

Indiscriminate attacks include those wh ere the incidental loss of civilian life, or damage to civilian objects, would be excessive in relation to the concrete and direct military advantage anticipated. (AP I, art. 51, except for para. 6, is considered customary international law by the U.S.).

C. AP I, art. 51(3)

, states that civilians enjoy protection from targeting “unless and for such time as they take a direct part in hostilities.” The Commentary states the requirement that civilians abstain from “all hostile acts,” is defined as “acts

whic h by their nature and purpose are intended to cause actual harm to the personnel and equipment of the armed forces.” This concept is discussed further in the chapter on Geneva Convention IV: Civilians on the Battlefield, which includes a

discussion of civ ilians taking “direct part” and “active part” in

hostilities.

ii. Hors de Combat

. Prohibition against attacking enemy personnel who are “out of combat.” Such persons include:

A. Prisoners of War. (GC III, art. 4; HR, art. 23(c), ( d))

B. Surrender may be made by any means that communicates the intent to give up. No clear rule exists as to what constitutes a surrender. However, most agree surrender constitutes a cessation of resistance and placement of one’s self at the

discretion of the captor. Captors must respect (not attack) and

protect (care for) those who surrender

— no reprisals.

C. Wounded and Sick in the Field and at Sea . (GC I, art. 12; GC II, art. 12). Those soldiers who have fallen by reason of

135 War Crimes and Command ResponsibilityD

.

E.

F.

G. sickness or wounds and wh o cease to fight are to be respected and protected. Civilians are included in the definition of wounded and sick (“who because of trauma, [or] disease . . .

are in need of medical assistance and care and who refrain from any act of hostility”). (AP I, ar t. 8). Shipwrecked members of the armed forces at sea are to be respected and protected. (GC II, art. 12; NWP 1

- 14M, para. 11.6). Shipwrecked includes downed passengers or crews on aircraft, ships in peril, and castaways.

Parachutists

. (FM 27

- 10, para. 30). Paratroopers are presumed to be on a military mission and therefore may be targeted.

Parachutists who are crewmen of a disabled aircraft are presumed to be out of combat and may not be targeted unless it’s apparent they are engaged on a hostile mission. Parachutists, according to AP I, art. 42, “shall be given the opportunity to surrender before being made the object of attack” and are clearly treated differently from paratroopers.

Medical Pe rsonnel . Considered out of combat if they are exclusively engaged in medical duties. (GC I, art. 24.) They may not be directly attacked; however, accidental killing or wounding of such personnel due to their proximity to military objectives “gives no j ust cause for complaint” (FM 27

- 10, para. 225). Medical personnel include: (GC I, art. 24)

1. Doctors, surgeons, nurses, chemists, stretcher

- bearers, medics, corpsman, and orderlies, etc., who are

“ exclusively engaged ” in the direct care of the wounded

an d sick.

2. Administrative staffs of medical units (drivers, generator operators, cooks, etc.).

3. Chaplains.

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

Relief Societies . Personnel of National Red Cross societies and other recognized relief societies (GC I, art. 26). Personnel of relief societies of neutral countries (GC I, art. 27).

136 War Crimes and Command ResponsibilityH. Civilian Medical and Religious Personnel . Article 15 of AP I requires that civilian medical and religious personnel shall be respected and protected. They receive the benefits of the provisions of the Geneva Conventions and the Protocols

co ncerning the protection and identification of medical personnel. Article 15 also dictates that any help possible shall be given to civilian medical personnel when civilian medical services are disrupted due to combat.

I. Personnel Engaged in the Protectio n of Cultural Property

. Article 17 of the 1954 Hague Cultural Property Convention 3
established a duty to respect (not directly attack) persons engaged in the protection of cultural property. The regulations attached to the Convention provide for specific positions as cultural protectors and for their identification.

J. Journalists

. Given protection as “civilians,” provided they take no action adversely affecting their status as civilians. (AP I, art. 79; considered customary internat ional law by U.S.)

5. Places.

a. Defended Places

. (FM 27

- 10, paras. 39 and 40). As a general rule, any place the enemy chooses to defend makes it subject to attack. Defended places include:

i. A fort or fortified place;

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

iii. A city or town that is surrounded by defensive positions under circumstances that the city or town is indivisible from the defensive positions. See also AP I, art. 51(5)(a), wh ich seems to clarify this rule. Specifically, it prohibits bombardments which treat “as a single military objective a number of clearly separated and distinct military objectives located in a city, town, or village.”

iv. Other legitimate military objectiv es which are not “defended” are also subject to attack. (FM 27

- 10, para. 40(c)).

3 Reprinted in the Documentary Supplement

137 War Crimes and Command Responsibilityb. Undefended places

. The attack or bombardment of towns, villages, dwellings, or buildings which are undefended is prohibited. (HR, art. 25).

An inhabited place may be declared an undefended place (and open for occupation) if the following criteria are met:

i. All combatants and mobile military equipment are removed;

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

iii. N o acts of hostility shall be committed by the authorities or by the population; and

iv. No activities in support of military operations shall be undertaken (presence of enemy medical units, enemy sick and wounded, and enemy police forces are allowed). (FM 27

- 10, para. 39b).

c. Natural environment

. The environment cannot be the object of reprisals. In the course of normal military operations, care must be taken to protect the natural environment against long

- term, widespread, a nd severe damage. (AP I, art. 55; the U.S. specifically objects to this article, and does not consider it to be customary international law)

d. Protected Areas . Hospital or safety zones may be established for the protection of the wounded and sick or ci vilians. (FM 27

- 10, para. 45). Articles 8 and 11 of the 1954 Hague Cultural Property Convention provide that certain cultural sites may be designated in an “International Register of Cultural Property under Special Protections.” The Vatican and art

stor age areas in Europe have been designated under the convention as “specially protected.” The U.S. asserts the special protection regime does not reflect customary international law.

e. Protected Property

i. Civilian . It is prohibited to attack civilians o r civilian property. (FM

27

- 10, para. 246; AP I, art. 51(2)). A presumption of civilian property attaches to objects traditionally associated with civilian use (dwellings, schools, etc.). (AP I, art. 52(3))

ii. Protection of Medical Units and Establishm ents. (FM 27

- 10, paras. 257 and 258; GC I, art. 19)

A. Fixed or mobile medical units shall be respected and protected. They shall not be intentionally attacked.

138 War Crimes and Command ResponsibilityB. Protection shall not cease, unles s they are used to commit “acts harmful to the enemy.”

C. There is a warning requirement before attacking a hospital that is committing “acts harmful to the enemy.”

1. Reasonable time must be given to comply with the warning, before attack.

2. When receivi ng fire from a hospital, there is no duty to warn before returning fire in self

- defense. Example: Richmond Hills Hospital, Grenada; hospitals during combat in Operation Iraqi Freedom.

D. Medical Transport

. Ground transports of the wounded and sick or of medical equipment shall not be attacked if performing a medical function. (GC I, art. 35). Under GC I, medical aircraft

were p r otected from direct attack only if they flew in

accordan ce with a previous agreement between the parties as to their route, time, and altitude. AP I extends further protection to medical aircraft flying over areas controlled by friendly

forces . Under this regime, identified medical aircraft are to be

respecte d, regardless of whether a prior agreement between the parties exists. (AP I, art. 25). In “ contact zones, ” protection can only be effective by prior agreement; nevertheless medical aircraft “shall be respected after they have been recognized as

such.” (AP I, art. 26; considered customary international law by U.S.). Medical aircraft in areas controlled by an adverse

party must have a prior agreement in order to gain protection. (AP I, art. 27). See the more developed discussion in the chapter on the Geneva Convention I: Wounded and Sick in the

Field.

f. Cultural Property

. Prohibition against attacking cultural property. The 1954 Cultural Property Convention elaborates, but does not expand, the protections accorded cultural property found in other treaties (HR, art. 27;

FM 27

- 10, para. 45, 57; s ee AP I, art. 53, for similar prohibitions). Cultural property includes buildings dedicated to religion, art, science, charitable purposes, historic monuments, hospitals, and places w here the

sick and wounded are collected.

i. Misuse will subject them to attack.

139 War Crimes and Command Responsibilityii. The enemy has a duty to indicate the presence of such buildings with visible and distinctive signs.

g. Works and Installations Containing Dangerous Forces

. (AP I, art. 56, and AP II, art. 15). The rules are not considered customary international law by the U.S., but should be considered because of the pervasive international acceptance of AP I and II. Under the Protocols, dams, di kes, and nuclear electrical generating stations shall not be attacked

— even if they are military objectives

— if the attack will cause the release of dangerous forces and cause “ severe losses ” among the civilian population. (The U.S. objects to the “severe l oss” language as creating a different standard than customary proportionality test: “excessive” incidental injury or damage.)

i. Military objectives that are near these potentially dangerous forces are also immune from attack if the attack may cause releas e of the forces (parties also have a duty to avoid locating military objectives near such locations).

ii. A military force may attack works and installations containing dangerous forces only if they provide “significant and direct support” to military oper ations and the attack is the only feasible way to terminate the support. The U.S. objects to this provision as creating a standard that differs from the customary definition of a military objective as an object that makes “an effective contribution

to mil itary action.”

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

h. Obje cts Indispensable to the Survival of the Civilian Population

. AP I,

art. 54

, prohibits starvation as a method of warfare. It is prohibited to attack, destroy, remove, or render useless objects indispensabl e for survival of the civilian population, such as foodstuffs, crops, livestock, water installations, and irrigation works.

6. Protective Emblems . (FM 27

- 10, para. 238). Objects and personnel displaying emblems are presumed to be protected under Conventi ons. (GC I, art. 38)

a. Medical and Religious Emblems.

i. Red Cross.

140 War Crimes and Command Responsibilityii. Red Crescent.

iii. Red Crystal

b. Cultural Property Emblems

i. “A shield, consisting of a royal blue square, one of the angles of which forms the point of the shield and of a royal b lue triangle above the square, the space on either side being taken up by a white triangle.” (1954 Cultural Property Convention, arts. 16 and 17).

ii. Hague Convention No. IX Concerning Bombardment by Naval Forces in Time of War (art. 5). “[L]arge, stiff , rectangular panels divided diagonally into two colored triangular portions, the upper portion black, the lower portion white.”

c. Works and Installations Containing Dangerous Forces . Three bright orange circles, of similar size, placed on the same axis, the distance between each circle being one radius. (AP I, annex I, art. 16.)

C. Principle of Discrimination or Distinction

. The principle of distinction is sometimes referred to as the “grandfather of all princi ples,” as it forms the foundation for much of the Geneva Tradition of the law of war. The essence of the principle is that military attacks should be directed at combatants and military targets, and not civilians or civilian property. AP I, art. 48 sets out the rule: “[p]arties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”

1. AP I, art. 51(4)

, further defines “indiscriminate attacks” as those attacks that:

a. A re “not directed against a specific military objective” (e.g., SCUD missiles during Desert Storm);

b. “E mploy a method or means of combat the effects of which cannot be

d irected at a specified military objective” (e.g., area bombing);

c. “E mploy a method or means of combat the effects of which cannot be limited as required” (use of bacteriological weapons); and

141 War Crimes and Command Responsibilityd. “C onsequently, in each case are of a nature to strike milit ary objectives and civilians or civilian objects without distinction.” 4

D. Principle of Proportionality

. The test to determine if an attack is proportional is found in AP I, art. 51(5)(b): “[a]n attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated” violates the principle of proport ionality. Note : this principle is only applicable when an attack has the possibility of affecting civilians. If the target is purely military with no known civilian personnel or property in jeopardy, no proportionality analysis need be conducted.

1. Inc idental loss of life or injury and collateral damage

. This is considered unavoidable damage to civilian personnel and property incurred while attacking a military objective. Such an occurrence, however, may not be a violation of international law as long as that loss of life or injury is proportional to the military advantage to be gained. The law recognizes that there may be some death, injury, and destruction during military operations. The law of war requirement is for the c ommander to weigh that expected death, injury, and destruction against the anticipated military advantage anticipated. The question is whether such death, injury, and destruction are excessive in relation to the military advantage; not whether any death, injury or destruction will occur. In other words, the prohibition is on the death, injury, and destruction being excessive; not on the attack causing such results.

2. Judging Commanders . It is be a grave breach of AP I to launch an attack that a

commande r knows will cause excessive incidental damage in relation to the military advantage gained. The requirement is for a commander to act reasonably.

a. Those who plan or decide upon an attack, therefore, must take all reasonable steps to ensure not only tha t the objectives are identified as military objectives or defended places, but also that these objectives can be attacked without probable losses in lives and damage to property disproportionate to the military advantage anticipated. (FM 27

- 10, para. 41). In judging a commander’s actions one must look at the situation as the commander saw it in light of all circumstances. 5 The question of reasonableness, however, ensures an objective standard that must be met as well. In this regard, two questions seem relevant. Did the commander gather a reasonable amount of information to determine whether the target was a military objective and that the incidental damage would not be

4 See A .P.V. R ODGERS

, L AW ON THE B ATTLEFIELD 19

- 24 (1996).

5 See id . at 66. See also discussion of the “Rendulic Rule,” supra note 2, and accompanying text.

142 War Crimes and Command Responsibilitydisproportionate? Second, did the commander act reasonably based on the gathered in formation? Of course, factors such as time, available staff, and combat conditions affecting the commander must also factor into the analysis.

b. Example: Al Firdos Bunker . During Desert Storm, planners identified this bunker as a military objective. B arbed wire surrounded the complex, it was camouflaged, and armed sentries guarded its entrance and exit points. Unknown to coalition planners, however, Iraqi civilians used the shelter as nighttime sleeping quarters. The complex was bombed, resulting in nearly 300 civilian casualties. Was there a violation of the law of war? No. Based on information gathered by coalition planners, the commander made a reasonable assessment that the target was a military objective and that incidental damage would not ou tweigh the military advantage gained. Although the attack unfortunately resulted in numerous civilian deaths, (and that in hindsight, the attack might have been disproportionate to the military advantage gained

— had the attackers known of the civilians) th ere was no international law violation because the attackers, at the time of the attack, acted reasonably. 6

E. Principle of Unnecessary Suffering or Humanity

. HR, art. 22

, states that the right of belligerents to adopt means of injuring the enemy is not unlimited. Furthermore, “it is especially forbidden . . . to employ arms, projectiles or material calculated to cause unnecessary suffering.” (HR, art. 23(e)). This concept is targeted at weaponry, and

has two basic elements

.

1. A prohibition on use of arms that are per se calculated to cause unnecessary suffering.

2. A prohibition on use of otherwise lawful arms in a manner that causes unnecessary suffering.

3. The key to both prohibitions is the mens rea or intent element.



### IV. W EAPONS

A. The regulation of use of weapons in conflict is governed by two major precepts. The first is the law of war principle prohibiting unnecessary suffering. The second is treaty law dealing with specific weapons or weapons systems.

6 See D EPARTMENT OF D EFENSE

, C ONDUCT O F T HE P ERSIAN G ULF W AR

, F INAL R EPORT T O C ONGRESS
615

- 616 (1992).

143 War Crimes and Command ResponsibilityB. Legal Re view

. Before discussing these areas, it is important to note first that all U.S. weapons and weapons systems must be reviewed by the Service TJAG for legality

under the law of war. 7 A review o ccurs before the award of the engineering and manufacturing development contract and again before the award of the initial production contract. Legal review of new weapons is also required under AP I, art.

36.

1. The Test . Is the acquisition and procurem ent of the weapon consistent with all applicable treaties, customary international law, and the law of armed conflict? (Interim Guidance, Defense Acquisition, para. 3.2.1). In a “TJAG review,” the discussion will often focus on whether the employment of the weapon or munition for its normal or expected use would inevitably cause injury or suffering manifestly disproportionate to its military effectiveness. This test cannot be conducted in isolation, but must be weighed in light of comparable, lawful weap ons in use on the modern battlefield. Weapons may be illegal:

a. Per se . Those weapons calculated to cause unnecessary suffering, determined by the “usage of states.” Examples: lances with barbed heads, irregular shaped bullets, projectiles filled with glas s. (FM 27

- 10, para. 34 )

b. By improper use . Using an otherwise legal weapon in a manner to cause unnecessary suffering. Example: using a flamethrower against enemy troops in a bunker after dousing the bunker with gasoline; the intent being

to infl ict severe pain and injury on the enemy troops.

c. By agreement or prohibited by specific treaties . Example: certain land mines, booby traps, and non

- detectable fragments are prohibited under the Protocols to the 1980 Conventional Weapons Treaty.

C. Cons ideration of Specific Weapons . As noted above, HR, art. 22, states that the right of belligerents to adopt means of injuring the enemy is not unlimited. Furthermore, “it is especially forbidden . . . to employ arms, projectiles or material calculated to cause unnecessary suffering.” (HR, art. 23(e)). The following weapons and munitions are considered under this general principle.

1. Small Arms Projectiles . Must not be exploding or expanding projectiles. The Declaration of St. Petersburg of 1868 prohibi ts exploding rounds of less than 400 grams (14 ounces). The 1899 Hague Convention prohibits expanding rounds. U.S. practice accedes to these prohibitions as being customary

7 Interim Guidance, Defense Acquisition, DEPSECDEF Memo, Oct. 30, 2002; AR 27

- 53, AFI 51

- 402,

and SECNAVINST 5711.8A.

144 War Crimes and Command Responsibilityinternational law. State practice is to use jacketed s mall arms ammunition (which reduces bullet expansion on impact).

a. Hollow point ammunition

. T ypically, this is semi

- jacketed ammunition that is designed to expand dramatically upon impact. This ammunition is prohibited fo r use in armed conflict against combatants by customary

international and the treaties mentioned above.

b. Frangible ammunition

. Ammunition which is designed to break apart upon impact, reducing ricochet. However, while the a mmunition may reduce ricochet, it may produce wounds similar to those suffered by

victims of hollow

- point ammunition, possibly violating the principle of unnecessary suffering. There are limited situations, however, where use

of this ammunition is lawful because its use will significantly reduce collateral damage to noncombatants and protected property (during a hostage rescue, aircraft security, urban combat, etc., where the ammunition would not penetrate walls or people).

c. High Velocity Small Caliber A rms

i. There was early controversy about M

- 16 causing unnecessary suffering. They may cause suffering, but it is not deemed to be

unnecessary.

ii. “Matchking” ammunition

. It has a hollow tip, but is no t expansive on impact. The tip is designed to enhance accuracy only, and does not cause unnecessary suffering.

d. Sniper rifles, .50 caliber machine guns, and shotguns

. Much mytholog y exists about the lawfulness of these weapon systems. Bottom line: they are lawful weapons, although rules of engagement (policy and tactics) may limit their use.

e. Superfluous Injury and U nnecessary Suffering Project (SI rUS) was an attempt by the ICRC to bring objectivity to the review of legality of various weapons systems. The S I rUS project attempted to use casualty survival rates off the battlefield, as well as the se riousness of the inflicted injury, as the criteria for determining if a weapon causes unnecessary suffering. The U.S. position is that the project was inherently flawed because its database of casualty figures is mostly based upon wounds

145 War Crimes and Command Responsibilityinflicted in dome stic disturbances (civil wars) from antipersonnel mines and from bullets of undetermined type. 8

2. Fragmentation Weapons. (FM 27

- 10, para

. 34)

a. Legal unless used in an illegal manner (on a protected target or in a

manner ca lculated to cause unnecessary suffering).

b. Unlawful if fragments are undetectable by X

- ray (Protocol I, 1980 Certain Conventional Weapons Treaty 9 ).

D. The following weapons and munitions are regulated not only by the principle

pro hibiting unnecessary suffering, but also by specific treaty law. Most of the applicable law is relatively new, dating from post

- Additional Protocol implementation.

1. Landmines

. Lawful if properly used; however, regulated by a number of different treaties. Keep in mind that while the U.S. has not signed all the applicable treaties, many of our allies have, and therefore it is important to understand what limitations our coalition partners may be facing and the impact on U.S. operations.

a. The primary legal concern with landmines is that they may violate the law of war principle of discrimination. A landmine cannot tell if it is being triggered by an enemy combatant or a member of the civilian population.

b. When considering legal restr ictions on landmines, three questions must be

answered:

i. What type of mine is it: anti

- personnel, anti

- tank, or anti

- tank with

anti

- handling device?

ii. How is the mine delivered: remotely or non

- remotely?

iii. Does it ever become inactive or self

- destru ct? Is it “smart” or “dumb?” (“Smart” mines are those that are self

- destructing, self

neutralizing, or self

- deactivating; “dumb” landmines are persistent, and a threat until they are triggered or lifted.)

8 See Maj Donna Verchio, Just Say No! The SirUS Project: Well

- Intentioned, but Unnecessary and Superfluous , 51 A.F.L. Rev. 183 (2001).

9 Reprinted in the Documentary Supplement.

146 War Crimes and Command Responsibilityc. The primary treaty that restricts U.S. use of mines is Amended Protocol II

to the Convention on Prohibitions or Restri c tions on the Use of Certain Conventional Weapons (CCW). 10 The U.S. ratified the Amended Protocol on May 24, 1999. Amended Protocol II:

i. Expands the scope o f the original Protocol to include internal armed conflicts;

ii. Requires that all remotely delivered anti

- personnel landmines be
“smart”;

iii. Requires that all “dumb” anti

- personnel landmines be used within controlled, marked, and monitored minefields; a ccordingly, they may not be remotely delivered;

iv. Requires that all anti

- personnel landmines be detectable using available technology (i.e., that they contain a certain amount of iron so as to be detectable using normal mine sweeping equipment);

v. Requi res that the party laying mines assume responsibility to ensure against their irresponsible or indiscriminate use; and

vi. Provides for means to enforce compliance.

vii. Amended Protocol II also clarifies the use of the M

- 18 Claymore “mine” when used in the tripwire mode (art. 5(6)). (When used in

command

- detonated mode, the Protocol does not apply, as the issue of distinction is addressed by the “triggerman” monitoring the area). Claymores may be used in the tripwire mode, without invoking the “dumb” mine restrictions of Amended Protocol II, if:

A. They are not left out longer than 72 hours;

B. The Claymores are located in the immediate proximity of the military unit that emplaced them; and

C. The area is monitored by military perso nnel to ensure civilians stay out of the area.

10 Reprinted in the Documentary Supplement.

147 War Crimes and Command Responsibilityd. In addition to Amended Protocol II, the United States released a new policy statement on landmines i n February 2004. Under this policy:

i. The United States has committed to eliminate persistent (dumb)

lan dmines of all types from its arsenal.

ii. Persistent anti

- personnel landmines are only stockpiled for use by the United States in fulfillment of our treaty obligations to the Republic

of Korea.

iii. Persistent anti

- vehicle mines can only be employed outsid e the Republic of Korea when authorized by the President until the end of

2010.

iv. After 2010, the United States will not employ either persistent anti

personnel or persistent anti

- vehicle landmines.

e. Although not applicable to the U.S., many nations, i ncluding many of our allies, have signed the Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti

- Personnel Mines and on

Their Destruction. 11 This treaty is commonly referred to as the Ottawa Treaty. The treaty entered into force on Mar. 1, 1999. As of this writing, 156 States have ratified it. Although the U.S. was active in negotiations, in September of 1997 it withdrew when other countries would not allow exceptions for the use of anti

- personnel landmines mines in Korea and

other uses of smart anti

- personnel landmines. Note: Ottawa only bans

anti

- personnel landmines; therefore, Ottawa does not restrict our allies in regards to anti

- tank or anti

- tank with anti

- handling device mines.

2. Booby Tra ps

. A device designed to kill or maim an unsuspecting person who disturbs an apparently harmless object or performs a normally safe act.

a. Amended Protocol II of the 1980 Conventional Weapons Convention

contai ns specific guidelines on the use of booby

- traps in Article 7, prohibiting booby

- traps and other devices which are in any way attached

or associated with :

i. Internationally recognized protective emblems, signs or signals;

ii. Sick, wounded, or dead person s;

11 Reprinted in the Documentary Supplement.

148 War Crimes and Command Responsibilityiii. Burial or cremation sites or graves;

iv. Medical facilities, medical equipment, medical supplies or transportation;

v. Children’s toys or other portable objects or products specifically designed for the feeding, health, hygiene, clothing, or educat ion of children;

vi. Food or drink;

vii. Kitchen utensils or appliances, except in military establishments;

viii. Objects clearly of a religious nature;

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

x. Animals or their carcasses.

b. The above list is a useful “laundry list” for the operational law attorney to use when analyzing the legality of the use of a booby

- trap. There is one important caveat to the above list: sub

- paragr aph 1(f) of article 7 prohibits the use of booby

- traps against “food or drink.” Food and drink are not defined under the Protocol, and if interpreted broadly, could include such viable military targets as supply depots and logistical caches. Consequently , it was imperative to implement a reservation to the Protocol that recognized that legitimate military targets such as supply depots and logistical caches were permissible targets against which to employ booby

traps. The reservation clarifies the fact th at stocks of food and drink, if judged by the United States to be of potential military utility, will not be accorded special or protected status.

3. Cluster Bombs or Combined Effects Munitions

. The se effective weapon s against such targets as air defense radars, armor, artillery, and personnel. However, because the bomblets are dispensed over a relatively large area and a small percentage of them typically fail to detonate, there is an unexploded

or dinance hazard associated with this weapon. These sub

- munitions are not mines, and are not triggered to explode in the same way as anti

- personnel landmines, and therefore are acceptable under the laws of armed conflict. However, if the sub

- munitions are disturbed or disassembled, they may

149 War Crimes and Command Responsibilityexplode. 12 As with anti

- personnel landmines, there have been efforts to limit or

eliminate their use by treaty. Protocol V on Explosive Remnants of War to the 1980 Convention on Certain Conventional Weapons addresses some aspects of the use of cluster bombs. In short, Protocol V requires Parties to clear areas under its control of unexploded ordnance insofar as is feasible. The U.S. ratified Protocol V in January 2009. Protocol V should not be confused with the Convention on Cluster Munitions, otherwise known as the Oslo Treaty , which totally bans all cluster bombs; the U.S. has not signed the Oslo Treaty, and is unlikely to become a party in the near future

.

4. Incendiaries

. (FM 27

- 10, para. 36). Examples: napalm or flame

- throwers. These are not illegal per se or illegal by treaty. The only U.S. policy guidance is found in paragraph 36 of FM 27

- 10 ,which warns that they should “not be

used in such a way as to cause unnecessary suffering.”

a. Napalm and Flame

- throwers

. Designed for use against armored vehicles, bunkers, and built

- up emplacements.

b. Protocol III of the 1980 Convention on Certain Conventional Weapo ns 13
prohibits use of air

- delivered incendiary weapons on military objectives

located within concentrations of civilians.

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

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

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

5. Lasers

. U.S. p ol icy (announced by SECDEF in Sep 95) prohibits use of lasers specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision. The policy recognizes that collateral or incidental da mage may occur as the result of legitimate military use of lasers (range finding, targeting). This policy mirrors

12 See U.S. DoD Report to Congress: Kosovo/Operation Allied Force After Action Report. See also Maj. Thomas Herthel, On the Chopping Block: Cluster Munitions and the Law of War , 51 A.F.L. Rev. 229 (2001).

13 Reprinted in the Documentary Supplement.

150 War Crimes and Command Responsibilitythat found in Protocol IV of the 1980 Convention on Certain Conventional Weapons

. 14 The U.S. ratified Protocol IV in January 2009.

6. Chemical Weapons

. Poison has long been outlawed in battle as being a treacherous means of warfare. Chemical weapons, more specifically, have been regulated since the early 1900's by several treaties.

a. The 1925 Geneva Protocol . (FM 27

- 10, para 38). Applies to all

international armed conflicts.

i. Prohibits the use of lethal, incapacitating, and biological agents. The protocol prohibits the use of “asphyxiating, poisonous, or other gases and all analogous liqu ids, materials or devices.

. . .”

ii. The U.S. considers the 1925 Geneva Protocol as applying to both lethal and incapacitating chemical agents.

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

iv. Under the Geneva Protocol of 1925, the U.S. reserved the right to use lethal or incapacitati ng gases if the other side uses them first. (FM 27

- 10, para. 38b). The reservation did not cover the right to use bacteriological methods of warfare in second use. Presidential approval was required for use. (E.O. 11850, 40 Fed. Reg. 16187 (1975); FM 2 7

- 10, para. 38c.) However, the Chemical Weapons Convention (CWC), which the U.S. ratified in 1997, does not allow

this “second” use.

b. 1993 Chemical Weapons Convention (CWC)

. 15 This treaty was ratified by

the U.S. and came into force in April 1997. Key articles are:

14 Reprinted in the Documentary Supplement.

15 Reprinted in the Documentary Suppl ement.

151 War Crimes and Command Responsibilityi. Article I . Parties agree to never develop, produce, stockpile, transfer, use, or engage in military preparations to use chemical weapons. Retaliatory use (second use) is not allowed, a significant depa rture from 1925 Geneva Protocol. It requires the destruction of chemical stockpiles. Each party agrees not to use RCAs as a

“method of warfare.”

ii. Article II includes definitions of chemical weapons, toxic chemical, RCA, and purposes not prohibited by the convention.

iii. Article III requires parties to declare stocks of chemical weapons and facilities they possess.

iv. Articles IV and V include procedures for destruction and verification, including routine on

- site inspections.

v. Article VIII establish es the Organization for the Prohibition of Chemical Weapons (OPWC).

vi. Article IX establishes “challenge inspection;” a short notice inspection in response to another party’s allegation of non

compliance.

7. Riot Control Agents (RCA)

. The use of RCA by U.S. troops is governed by four key documents. In order to determine which documents apply to the situation at hand, you must first answer one fundamental question: is the U.S. currently engaged in war? If so, use of RCA is go verned by the CWC and Executive Order 11850. If not, then use of RCA is governed by CJCSI 3110.07C, and, more tangentially, by the Senate’s resolution of advice and

consent to the CWC.

a. War . In determining if the U.S. is at war for purposes of use of R CA, the question is whether the international armed conflict the U.S. is involved in is of a scope, duration, and intensity to be an operation that triggers the application of the law of war (i.e., a Common Article 2 conflict).

i. CWC . As noted above, the CWC prohibits use of RCA as a “method of warfare.” The President decides if a requested use of RCA qualifies as a “method of warfare.” As a general rule, during war, the more it looks like the RCA is being used on enemy combatants, the more likely it wi ll be considered a “method of warfare” and prohibited.

152 War Crimes and Command Responsibilityii. E

. O

. 11850

. Guidance also exists in Executive Order 11850. Note that E.O. 11850 came into force nearly 20 years before the CWC.

E.O. 11850 applies to use of RCA and herbicides . It requires Presidential approval before use, and only allows for RCA use in

armed conflicts in defensive military modes to save lives, such as:

A. Controlling riots;

B. Dispersing civilians where the enemy uses them to mask or screen an attack;

C. Resc ue missions for downed pilots, escaping POWs, etc.; and

D. For police actions in our rear areas.

iii. The rationale for the prohibition against use of RCA on the battlefield? We do not want to give States the opportunity for subterfuge. Keep all chemical equipment off the battlefield, even if it is supposedly only for use with RCA. Second, we do not want an appearance problem, with combatants confusing RCA equipment as equipment intended for chemical warfare. E.O. 11850 is still in

effect and RCA can be used in certain defensive modes with Presidential authority. However, any use in which “combatants” may be involved will most likely not be approved.

b. Operations other than w ar . In a situation less than a Common Article 2 conflict, t he CWC and E.O. 11 850 restrictions on RCA do not apply. Rather, CJCSI 3110.07 C applies. The authorization for RCA use may be

at a lower level than the President. CJCSI 3110.07 C states the United States is not restricted by the Chemical Weapons Convention in its use of

RC As, including against combatants who are a party to a conflict, in any of the following cases:

i. The conduct of peacetime military operations within an area of ongoing armed conflict when the United States is not a party to the

conflict.

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

iii. Peacekeeping operations when force is authorized by the Security Council under Chapter VII of the UN chart er.

153 War Crimes and Command Responsibilityiv. These allowable uses are drawn from the language of the Senate’s resolution of advice and consent for ratification of the CWC (S.

Exec. Res. 75

– Senate Report section 3373 of Apr. 24, 1997). The Senate required that the President certify when sig ning the CWC that the CWC did not restrict in any way the above listed uses of RCA. In essence, the Senate made a determination that the listed uses were not “war,” triggering the application of the CWC.

A. The implementation section of the resolution req uires the President not modify E.O. 11850. ( see S. Exec Res. 75, section 2 (26)(b), s3378)

B. The President’s certification document of Apr

. 25, 1997 states that “the United States is not restricted by the convention in its use of riot control agents in v arious peacetime and peacekeeping operations. These are situations in which the

U.S. is not engaged in the use of force of a scope, duration, and intensity that would trigger the laws of war with respect to U.S.

forces.”

v. Thus, during peacekeeping missi ons (such as Bosnia, Somalia, Rwanda and Haiti) it appears U.S. policy will maintain that we are not a party to the conflict for as long as possible. Therefore, RCA would be available for all purposes. However, in armed conflicts (such as Operation Iraqi Freedom, Enduring Freedom, Desert Storm, and Panama) it is unlikely that the President would approve the use

of RCA in situations where “combatants” are involved due to the CWC’s prohibition on the use of RCA as a “method of warfare.”

8. Herbicides

. E.O. 11850 renounces first use in armed conflicts of herbicides (e.g., Agent Orange in Vietnam), except for domestic uses and to control vegetation around defensive areas.

9. Biological Weapons

. The 1925 Geneva Protocol prohibits bacteriological methods of warfare. The 1972 Biological Weapons Convention 16 supplements the 1925 Geneva Protocol and prohibits the production, stockpiling, and use of biological and toxin weapons. The U.S. renounced al l use of biological and toxin weapons.

16 Reprinted in the Documentary Supplement.

154 War Crimes and Command Responsibility10. Nuclear Weapons

. (FM 27

- 10, para. 35). Not prohibited by international law. In 1996, the International Court of Justice (ICJ) issued an advisory opinion 17
that “[t]here is in neither cust omary nor international law any comprehensive and universal prohibition of the threat or use of nuclear weapons.” However, by a split vote, the ICJ also found that “[t]he threat or use of nuclear weapons would generally be contrary to the rules of interna tional law applicable in armed conflict.” The ICJ stated that it could not definitively conclude whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme

circumstance of self

- defense, in which the very survival of the state w ould be at

stake.



### V. T ACTICS

A. “Tricking” the enemy

1. Ruses

. (FM 27

- 10, para. 48). Injuring the enemy by legitimate deception (abiding by the law of war

— actions that are in good faith). Examples of ruses

include:

a. Naval Tactics . A com mon naval tactic is to rig disguised vessels or dummy ships, e.g., to make warships appear as merchant vessels.

i. World War I

- Germany: Germany often fitted her armed raiders with dummy funnels and deck cargoes and false bulwarks. The

German raider Kor moran passed itself off as a Dutch merchant when approached by the Australian cruiser Sydney . Once close enough to open fire she hoisted German colors and fired, sinking Sydney with

all hands. 18

ii. World War II

- Britain: British Q

- ship program during Wo rld War

II. The British took merchant vessels and outfitted them with concealed armaments and a cadre of Royal Navy crewmen disguised as merchant mariners. When spotted by a surfaced U

- boat, the disguised merchant would allow the U

- boat to fire on them, then once in range, the merchant would hoist the British battle ensign and engage the U

- boat. The British sank 12 U

- boats by this method.

17 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I

. C

. J

. 226 (July 8)

, available at http://www.icj

- cij.org/docket/files/95/7495.pdf

.

18 See C. J OHN C OLOMBOS

, T HE I NTERNATIONAL L AW OF THE S EA 454

- 55 (1962).

155 War Crimes and Command ResponsibilityThis tactic caused the Germans to shift from surfaced gun attacks to submerged torpedo attacks. 19

b. Land Warfare . C reation of fictitious units by planting false information, putting up dummy installations, false radio transmissions, or using a small force to simulate a large unit. (FM 27

- 10, para. 51.)

i. World War II

- Allies: The classic example of this ruse was the Allied Operation Fortitude prior to the D

- Day landings in 1944. The Allies, through the use of false radio transmissions and false references in bona fide messages, created a fictitious First U.S. Army Group, supposedly commanded by General Patton, locat ed in Kent, England, across the English Channel from Calais. The desire was to

mislead the Germans to believe the cross

- Channel invasion would be there, instead of Normandy. The ruse was largely successful. 20

ii. Gulf War

- Coalition: Coalition forces, sp ecifically XVIII Airborne Corps and VII Corps, used deception cells to create the impression that they were going to attack near the Kuwaiti boot heel, as opposed to the “left hook” strategy actually implemented. XVIII Airborne Corps set up “Forward Opera ting Base Weasel” near the boot heel, consisting of a phony network of camps manned by several dozen soldiers. Using portable radio equipment, cued by computers, phony radio messages were passed between fictitious headquarters. In addition, smoke generat ors and loudspeakers playing tape

- recorded tank and truck noises were used, as were inflatable Humvees and helicopters. 21

c. Use of Enemy Property . Enemy property may be used to deceive under the following conditions:

i. Uniforms

. Combatants may wear enemy uniforms but cannot fight in them. Note, however, that military personnel not wearing their uniform may lose their POW status if captured and risk being treated as spies (FM 27

- 10, para s . 54 and 74; NWP 1

- 14M, para. 12.5.3;

AFP 110

- 31, para. 8

- 6).

19 See LCDR Mary T. Hall, False Colors and Dummy Ships: The Use of Ruse in Naval Warfare

, N AV

. W AR

. C OLL

. R EV ., Summer 1989, at 60.

20 See J OHN K EEGAN

, T HE S ECOND W ORLD W AR 373

- 79 (1989).

21 See R ICK A TKINSON

, C RUSADE 331

- 33 (1993).

156 War Crimes and Command ResponsibilityA. World War II

- Germany: The most celebrated incident involving the use of enemy uniforms was the Otto Skorzeny trial arising from activities during the Battle of Bulge. Otto Skorzeny was brigade commander of the 150 th SS Panze r Brigade. Several of his men were captured in U.S. uniforms; their mission being to secure three critical bridges in advance of the German attack. Eighteen of Skorzeny’s men were executed as spies following the battle. Following the war, ten

of Skorzen y’s officers, as well as Skorzeny himself, were accused of the improper use of enemy uniforms, among other charges. All were acquitted. The evidence did not show that they actually fought in the uniforms, consistent with their instructions. The case gen erally stands for the proposition that it is only the fighting in the enemy uniform that violates the

law of war. 22

ii. Colors

. The U.S. position regarding the use of enemy flags is consistent with its practice regarding uniform s, i.e., the U.S. interprets the “improper use” of a national flag (HR, art. 23(f)) to permit the use of national colors and insignia of enemy as a ruse as long as they are not employed during actual combat (FM 27

- 10, para. 54; NWP 1

- 14M, para

. 12.5).

iii. Equipment

. Military forces must remove all enemy insignia in order to fight with the equipment. Captured supplies: may seize and use if

State property. Private transportation, arms, and ammunition may be seized, but must be restored and compensation fixed whe n peace is made. (HR, art. 53)

iv. Effect of Protocol I . AP I, art. 39(2), prohibits virtually all use of these enemy items. ( see NWP 1

- 14M, para 12.5.3). Article 39 prohibits the use in an armed conflict of enemy flags, emblems, uniforms, or insignia while engaging in attacks or “to shield, favour, protect or impede military operations.” The U.S. does not consider this article reflective of customary law. This article, however, expressly does not apply to naval warfare; thus the customary rule that naval vessels may fly enemy colors, but must hoist true colors prior to an attack, lives on. (AP I, art 39(3); NWP 1

- 14M, para. 12.5.1)

22 See DA Pam 27

- 161

- 2 at 54. For listing of examples of the use of enemy uniforms, see W. Hays Parks, Air War and the Law of War , 32 A.F. L. R EV

. 1 , 77

- 78 (1990). For an argument against any use of the enemy’s uniform, see Valentine Jobst III, Is the Weari ng of the Enemy’s Uniform a Violation of the Laws of War ?, 35 A M

. J. I NT ’ L L. 435 (1941).

157 War Crimes and Command Responsibility2. Treachery/Perfidy

. In contrast to the lawfu l ruses discussed above, treachery and perfidy are prohibited under the law of war. (FM 27

- 10, para. 50; HR, art. 23(b)). They involve injuring the enemy by his adherence to the law of war (actions that are in bad faith). As noted below, treachery/perfi dy can be further broken down into feigning and misuse.

a. History . Condemnation of perfidy is an ancient precept of the law of war, derived from the principle of chivalry. Perfidy degrades the protections and mutual restraints developed in the mutual in terest of all parties, combatants, and civilians. In practice, combatants find it difficult to respect protected persons and objects if experience causes them to believe or suspect that the adversaries are abusing their claim to protection under

the law o f war to gain a military advantage. Thus, the prohibition is directly related to the protection of war victims. The practice of perfidy also inhibits the restoration of peace. 23

b. Feigning and Misuse . Distinguish feigning from misuse. Feigning is

treac hery that results in killing, wounding, or capture of the enemy. Misuse is an act of treachery resulting in some other advantage to the

enemy.

c. Effect of Protocol I . According to AP I, art. 37(1), the killing, wounding,
or capture via “[a]cts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence [are perfidious, thus prohibited acts ].” The U.S. considers this as customary international law. Article 37(1) does not prohibit perfidy per se ; only certain perfidious acts that result in killing, wounding, or capturing, although it comes very close. The ICRC could not gain support for an absolute ban on perfidy at the diplomatic

conference. 24 Article 37 also refers only to confidence in international law (LOW), not moral obligations. The latter was viewed as too abstract by

certain delegations. 25 Note, however, that the U.S. view include s breaches of moral, as well as legal obligation as being a violation, citing the broadcasting of an announcement to the enemy that an armistice had been agreed upon, when it had not, as being treacherous. (FM 27

- 10, para. 50)

23 See M ICHAEL B OTHE

, ET

. AL

., N EW R ULES FOR V ICTIMS OF A RMED C ONFLICTS 202 (1982); FM 27

- 10, para. 50.

24 Bothe, supra note 21

, at 203.

25 Id. at 204

- 05.

158 War Crimes and Command Responsibilityd. Feigning incapacitation b y wounds/sickness . (AP I, art. 37(1)(b)). The

U.S. position is that HR, art. 23(b), also prohibits this, e.g., faking wounds and then attacking an approaching soldier. 26

e. Feigning surrender or the intent to negotiate under a flag of truce . (AP I,

a rt

. 37(1)(a)). Note that in order to be a violation of AP I, art. 37, the feigning of surrender or an intent to negotiate under a flag of truce must result in a killing, capture, or surrender of the enemy. Simple misuse of a flag of truce, not necessarily re sulting in one of those consequences is, nonetheless, a violation of AP I, art. 38, which the U.S. also considers customary law. An example of such misuse would be the use of a flag of truce to gain time for retreats or reinforcements. 27 AP I, art. 38

, is analogous to HR, art. 23(f), prohibiting the improper use of a flag of truce.

i. Falklands War

- British: During the Battle for Goose Green, some Argentinean soldiers raised a white flag. A British lieutenant and 2 soldiers went forward to accept what t hey thought was surrender. They were killed by enemy fire. The incident was disputed. Apparently, one group of Argentines was attempting to surrender, but not the other group. The Argentine conduct was arguably treachery if those raising the white flag killed the British soldiers, but it was not treacherous if other Argentines, either unaware of the white flag or not wishing to surrender, killed them. This incident emphasizes the rule that the white flag is an indication of a desire to negotiate only

, and that its hoister has the burden to come forward. 28

ii. Desert Storm: The Battle of Khafji incident was not a perfidious act. Media speculated that Iraqi tanks with turrets pointed to the rear, then turning forward to fire when action began, was a perf idious act. DOD Report to Congress rejected that observation, stating that the reversed turret is not a recognized symbol of surrender per se

. “Some tactical confusion may have occurred, since Coalition ground forces were operating under a defensive post ure at that time, and were to engage Iraqi forces only on a clear indication of hostile intent, or some hostile act.” 29

26 See Marjorie M. Whiteman, Dep’t of State, 10 Digest of International Law 390 (1968); NWP 1

- 14M, para. 12.7.

27 See M ORRIS G REENSPAN

, T HE M ODERN L AW OF L AND W ARFARE 320

- 21 (1959).

28 See Major Robert D. Higginbotham, Case Studies in the Law of Land Warfare II: The Campai gn in the

Falklands , Mil. Rev., Oct. 1984, at 49.

29 See Dep’t of Defense, Final Report to Congress

, supra note 6, at 621

.

159 War Crimes and Command Responsibilityiii. Desert Storm: On one occasion, however, Iraqi forces did apparently engage in perfidious behavior. In a situation analogous to

the Falklands War scenario above, Iraqi soldiers waved a white flag and also laid down their arms. As Saudi forces advanced to accept the surrender, they took fire from Iraqis hidden in buildings on either

side of street. 30 Similar conduct occurred during Op eration Iraqi Freedom when Iraqis took some actions to indicate surrender and then opened fire on Marines moving forward to accept the surrender.

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

and was killed. 31

f. Feigning civilian, noncombatant status . “ Attacking enemy forces while posing as a civilian puts all civilians at hazard.” (AP I, art

. 37(1)( c); NWP

1

- 14M, para. 12.7.)

g. Feigning protected status by using UN, neutral, or nations not party to the conflict’s signs, emblems, or uniforms. (AP I, art

. 37(1)(d))

i. As an example, on 26 May 1995, Bosnian Serb commandos dressed in uniforms, flak jac kets, helmets, weapons of the French, drove up to French position on a Sarajevo bridge in an armored personnel carrier with UN emblems. French forces thought all was normal. The commandos, however, then proceeded to capture French peacekeepers without fi ring a shot. 32

ii. It is not perfidy (a violation of A P I, a rt 37) to (mis)use the emblem of the UN to try to gain protected status if the UN has member forces in the conflict as combatants (even just as peacekeepers). As in the

case of the misuse of the f lag of truce, misuse of a UN emblem that does not result in a killing, capture, or surrender, is nonetheless a violation of AP I, art. 38, because that article prohibits the use of the

UN emblem without authorization.

h. Misuse of Red Cross, Red Crescent, or cultural property symbol.

30 Id.

31 Id

.

32 Joel Brand, French Units Attack Serbs in Sarajevo , Wash. Post, May 28, 1995, at A1.

160 War Crimes and Command Responsibilityi. Designed to reinforce/reaffirm HR, art. 23(f).

ii. GC I requires that wounded and sick, hospitals, medical vehicles, and, in some cases, medical aircraft be respected and protected. The protection is lost if forces are comm itting acts harmful to the enemy. As an example, during the Grenada Invasion, U.S. aircraft took fire from the Richmond Hills Hospital, and consequently engaged it. 33

iii. Cultural property symbols include the 1954 Hague Cultural Property Convention, Roeri ch Pact, and 1907 Hague Conventions symbols.

i. Misuse of internationally recognized distress signals.

B. Assassination

. Hiring assassins, putting a price on the enemy’s head, and offering rewards for an enemy “dead or alive” is proh ibited. (FM 27

- 10, para 31; E.O. 12333). Targeting military leadership, however, is not assassination. Recent U.S. practice is to offer money in exchange for “information leading to the capture of” the

individual. 34

C. Espionage

. (FM 27

- 10, para. 75; AP I, art. 46). Defined as acting clandestinely (or on false pretenses) to obtain information for transmission back to friendly territory. Gathering intelligence while in uniform is not espionage.

1. Espionage is not a law of war violation.

2. There is no protection, however, under Geneva Conventions for acts of espionage.

3. The spy is tried under the laws of the capturing nation; e.g., Art. 106, UCMJ.

4. Reaching friendly lines immunizes the spy for past espionage activiti es. Therefore, upon later capture as a lawful combatant, the former spy cannot be tried for past espionage.

D. Belligerent or wartime reprisals

. (FM 27

- 10, para. 497). Defined as an otherwise illegal act done in response to a prior ill egal act by the enemy. The purpose of a reprisal is to get the enemy to adhere to the law of war.

33 See DA Pam 27

- 161

- 2, p. 53, n. 61.

34 See W. Hays Parks, Memorandum of Law: Executive Order 12333 and Assassination

, A RMY L AW

. Dec. 1989, at 4.

161 War Crimes and Command Responsibility1. Reprisals are authorized if they are:

a. Timely;

b. Responsive to that enemy’s act that violated the law of war;

c. Follow an unsatisfied demand to cease and desist; and

d. Proportionate to the previous illegal act.

2. Prisoners of war and persons “in your control” cannot be objects of reprisals. AP I prohibits reprisals against numerous other targets, such as the entire civilian population, civilian prope rty, cultural property, objects indispensable to the survival of the civilian population (food, livestock, drinking water), the natural environment, and installations containing dangerous forces (dams, dikes, nuclear power plants) (AP I, arts. 51 and 53

- 56). The U.S. specifically objects to these as not reflective of customary international law.

3. U.S. policy is that a reprisal may be ordered only at the highest levels (President).

162 War Crimes and Command Responsibility

## W AR 

## C RIMES AND 

## C OMMAND 

## R ESPONSIBILITY

I. O BJECTIVES

A. Understand the h istory of the law of war as it pertains to war crimes and war crimes prosecutions, focusing on enforcement mechanisms.

B. Understand the d efinition of “war crimes.”

C. Understand t he doctrine of command responsibility.

D. Under stand the jurisdictions and f orums in which may war crimes be prosecuted.



### II. H ISTORY A ND 

### D EVELOPMENT O F 

### W AR 

### C RIMES A ND 

### W AR 

### C RIMES


### P ROSECUTIONS

A. General

. Although war is not a compassionate trade, rules regarding its conduct and trials of individuals for specific violations of the laws or customs of war have a long history.

B. American War of Independence . The most frequently punished violations were those committed by forces of the two armies against the persons and property of civilian

inhabitants. Trials consisted of courts

- mar tial convened by commanders of the

offenders. 35

C. American Civil War . In 1865, Captain Henry Wirz, a former Confederate officer and commandant of the Andersonville, Georgia, prisoner of war camp, was convicted and sentenced to death by a federal military tribunal for murdering and conspiring to ill

treat prisoners of war. 36

D. Anglo

- Boer War . In 1902, British courts

- martial tried Boers for acts contrary to the usages of war. 37

35 See George L. Coil, War Crimes of the American Revolution

, 82 M IL

. L. R EV . 171, 173

- 81 (1978).

36 See J. M C E LROY

, A NDERSONVILLE (1879); W.B. H ESS ELTINE

, C IVIL W AR P RISONS (1930) ; 1 L AW OF
W AR : A D OCUMENTARY H ISTORY 783

– 98 (Leon Friedman, ed. 1972).

37 See T HE M ILNER P APERS : S OUTH A FRICA

, 1897

- 1899, 1899

- 1905 (1933).

163 War Crimes and Command ResponsibilityE. Counter

- insurgency operations in the Philippines . Brigadier General Jacob H. Smith,

U.S. Army, was tried and convicted by court

- martial for inciting, ordering, and permitting subordinates to commit war crimes. 38

F. World War I . Because of German resistance to extradition

— under the 1919 Versailles peace treaty

— of persons accused of war crimes, the Allies agreed to permit the cases to be tried by the Supreme Court of Leipzig, Germany. The accused were treated as heroes by the German press and public, and many were acquitted despite strong evidence of guilt. 39

G. World War II . Victori ous allied nations undertook an aggressive program for the punishment of war criminals. This included the joint trial of 24 senior German leaders (in Nuremberg) and the joint trial of 28 senior Japanese leaders (in Tokyo) before specially created Internati onal Military Tribunals; twelve subsequent trials of other German leaders and organizations in Nuremberg under international authority and before panels of civilian judges; thousands of trials prosecuted in various national courts, many of these by British military courts and U.S. military commissions. 40

H. Geneva Conventions . Marked the codification

— beginning in 1949 when the Conventions were opened for signature

— of specific international rules pertaining to the trial and punishment of those committing “gr ave breaches” of the Conventions. 41

I. U.S. soldiers committing war crimes in Vietnam were tried by U.S. courts

- martial under analogous provisions of the UCMJ. 42

J. Panama . In a much

- publicized case arising in the 82d Airborne Division, a First Sergeant cha rged, under UCMJ, art. 118, with murdering a Panamanian prisoner, was acquitted by a general court

- martial. 43

38 See L. C. Green, Command Responsibility in International Humanitarian Law

, 5 T RAN SNAT ’ L L. &

C ONTEMP

. P ROBS . 319, 326 (1995); S. Doc. 213, 57 th Cong. 2 nd Session, p. 5.

39 See DA Pam 27

- 161

- 2 at 221.

40 See DA Pam 27

- 161

- 2 at 224

- 35; N ORMAN E. T UTOROW

, W AR C RIMES

, W AR C RIMINALS

, AND W AR
C RIMES T RIALS : A N A NNOTATED B IBLIOGRAPHY AND S OURC E B OOK 4

- 8 (1986).

41 See GC I Commentary 357

- 60

.

42 See M AJOR G ENERAL G EORGE S. P RUGH

, L AW AT W AR : V IETNAM 1964

- 1973 76

- 77 (1975) ; W. Hays Parks, Crimes in Hostilities

, M ARINE C ORPS G AZETTE , Aug. 1976, at 16

- 22.

43 See U.S. v. Bryan , Unnumbered Record of Tri al (Hdqtrs, Fort Bragg 31 Aug. 1990) [on file with the Office of the SJA, 82d Airborne Div.].

164 War Crimes and Command ResponsibilityK. Persian Gulf War . Although the United Nations Security Council (UNSC) invoked the threat of prosecutions of Iraqi violators of international hu manitarian law, the

post

- conflict resolutions were silent on criminal responsibility. 44

L. Former Yugoslavia . On Feb. 22, 1993, the UNSC established the first international war crimes tribunal since the Nuremberg and Far East trials after World War II. 45 O n May 25, 1993, the Council unanimously approved a detailed report by the Secretary General recommending tribunal rules of procedure, organization, investigative proceedings, and other matters. 46

M. Rwanda . On Nov. 8,1994, the UNSC adopted a Statute creati ng the International

Criminal Tribunal for Rwanda. 47 Art. 14 of the Statute for Rwanda provides that the rules of procedure and evidence adopted for the Former Yugoslavia shall apply to the Rwanda Tribunal, with changes as deemed necessary.

N. Sierra Leone . On Aug. 14, 2000

, the UNSC adopted Resolution 1315, which authorized the Secretary General to enter into an agreement with Sierra Leone and thereby establish the Special Court for Sierra Leone (agreement signed Jan. 16, 2002). The court is a hybrid int ernational

- domestic Court to prosecute those allegedly responsible for atrocities in the Sierra Leone.

O. International Criminal Court

. The treaty entered into force on July 1, 2002. At the

time of this wr iting, 110 States have ratified the Rome Statute of the International

Criminal Court. 48 Although the U.S. is in favor of a standing permanent forum to address war crimes, the U.S. does not support the treaty as written. The United States signed the Rome T reaty on Dec. 31, 2000. Based on numerous concerns, however, President George W. Bush directed, on May 6, 2002, that notification be sent to the Secretary General of the United Nations, as the depositary of the Rome Statute, that

the United States does n ot intend to become a party to the treaty and has no legal obligations arising from its previous signature.

P. Military Commissions . In October 2006, President Bush signed the Military Commissions Act (MCA) of 2006, significantly amending the original mil itary commissions order issued in 2001. In January 2009, President Obama paused

44 See S.C. Res. 692, U.N. SCOR, 2987 th mtg., U.N. Doc. S/RES/692 (1991), reprinted in 30 I.L.M. 864 (1991); see also Theodore Meron , The Case for War Crimes Trial s in Yugoslavia

, F OREIGN A FFAIRS

, Summer 1993, at 125.

45 S.C. Res. 808, U.N. SCOR, U.N. Doc. S/RES/808 (1993).

46 S.C. Res. 827, U.N. SCOR, U.N. Doc. S/RES/827 (1993).

47 S.C. Res. 955, U.N. SCOR, U.N. Doc. S/RES/955 (1994).

48 Reprinted in the Documentary Su pplement.

165 War Crimes and Command Responsibilityprosecutions while his administration reviewed the cases and whether to continue or change the military commissions. In November 2009, Congress amended the Military Commissio ns Act.



### III. W AR 

### C RIME S

A. Definition

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

conflict.

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

. ” 49

2. “Crimes committed by countries in violation of the international la ws governing wars. At Nuremberg after World War II, crimes committed by the Nazis were

so tried.” 50

3. “The term ‘war crime’ is the technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of t he law

of war is a war crime

. ” 51

4. As with other crimes, there are Actus Reus and Mens Rea elements.

5. Recurring problems with prosecution of war crimes:

a. Partiality.

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

49 L. O PPENHEIM , 2 I NTERNATIONAL L AW 251 ( 7 th ed., H. Lauterpacht, 1955); accord T ELFORD T AYLOR

, N UREMBERG AND V IETNAM 19

- 20 (1970).

50 Black ’ s Law Dictionary 1583 (6 th ed. 1990); cf

. FM 27

- 10, para. 498 (defining a broader category of

“crimes unde r international law” of which “war crimes” form only a subset and emphasizing personal responsibility of individuals rather than responsibility of states).

51 FM 27

- 10, para. 499 (emphasis added).

166 War Crimes and Command Responsibilityii. In the trial of Admiral Dönitz, in part for the crime of not coming to the aid of enemy survivors of subma rine attacks, he argued the point that this was the same policy used by U.S. forces in the Pacific under Admiral Nimitz. 22 I.M.T. 559 (1949).

iii. Influence of Realpolitik impacts prosecutions.

A. Yamashita . Appearance of expedited trial with sentence ( death) announced on Dec. 7, 1945. Justice Rutledge stated in his dissent that the trial was “the uncurbed spirit of revenge and retribution, masked in formal legal procedure for purposes of dealing with a fallen enemy commander.” 327 U.S. 1, 41 (1946).

B. War crimes prosecutions not pursued post

- conflict . In the Korean Conflict, 23 cases were ready for trial against POWs in

U.S. custody, yet they were released under terms of the

armistice. Prosecution was not mentioned in First Gulf War Ceasefire agree ment.

b. Legality.

i. Ongoing issues with respect to nullum crimen sine lege and ex post facto laws, and balancing gravity of offenses with no statute of limitations against reliability of evidence/witness testimony.

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

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

State.

167 War Crimes and Command Responsibilityc. Recording history . Didactic function of war crimes trials is important, but may interfere with evidentiary procedures, e.g. by admitting more evidence than may otherwise be admitted. 52

B. Customary International Law War Crimes.

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

custom , the violation has been termed a “war crime.”

2. Definitions.

a. FM 27

- 10, para. 504, includes the following categories of customary war

crimes : Making use of poisoned or otherwise forbidden arms or ammunition; Treacherous request for quarter; Maltreatme nt of dead bodies; Firing on localities which are undefended and without military significance; Abuse of or firing on the flag of truce; Misuse of the Red Cross emblem; Use of civilian clothing by troops to conceal their military character during battle; I mproper use of privileged buildings for military purposes; Poisoning of wells or streams; Pillage or purposeless destruction; Compelling prisoners of war or civilians to perform prohibited labor; Killing without trial spies or other persons who have

commit ted hostile acts; Violation of surrender terms.

b. The Rome Statute of the International Criminal Court, contains a similar, though more expansive list, under the heading of “other serious violations of laws and customs applicable in international armed co nflict.” (Rome Statute, art. 8.2.(b))

3. It is not clear the extent to which universal jurisdiction applies to customary war crimes. Those prosecutions which have occurred based solely on the customary right to try war criminals have involved States whic h were the victims of the crimes; there have been few, if any, cases where an unconnected third State attempts a prosecution. The effect of the lack of clarity has diminished, however, with the advent of special tribunals and the International Criminal

52 See T HE L AW OF W AR C RIMES : N ATIONAL AND I NTERNATIONAL A PP ROACHES (McCormack and Simpson eds., 1997).

168 War Crimes and Command ResponsibilityCo urt, both discussed below, which specifically grant jurisdiction to themselves for these types of crimes.

C. The Geneva Categories

. The 1949 Geneva Conventions were written to protect the

various non

- combatant victims of international armed conflict, namely the wounded and sick, shipwrecked, prisoners of war, and civilians, with a Convention devoted to each. Each Convention set forth various positive and negative duties toward those persons protected by its provisions ; for example, GC I, art. 12, states that the wounded and sick shall be treated humanely, and that they shall be respected (i.e., not targeted). Failure of either of these types of duties is a breach of the Convention, and potentially a war crime, though there is a significant qualitative difference between, for example, murdering a POW (GC III, art. 13) and failing to post a copy of the Convention in the POW’s language (GC III, art. 41). To provide greater guidance,

the Conventions characterize certain b reaches as “grave,” and mandate particular

State action.

1. Grave Breaches.

a. Each Convention has an article enumerating the applicable grave breaches. The articles are similar, though not exactly the same, and appear at

different places in each Convention, so they cannot be considered

“common” in the same sense as Common Article 2 or 3.

i. GC I: Article 50.

ii. GC II: Article 51.

iii. GC III: Article 130.

iv. GC IV: Article 147.

Common among these is the inclusion of murder, tortu re, causing great suffering or injuring, and medical experiments. Compelling a protected person to serve in his enemy’s armed forces, excessive destruction of property, and deprivation of a fair trial are also included as they are applicable to a particul ar type of victim.

b. With regard to grave breaches, each State has a duty to prosecute or
extradite . (GC I, art. 49; GC II, art. 50; GC III, art. 129; GC IV, art. 146)

. Specifically, each State must:

i. Enact penal la ws criminalizing grave breaches.

169 War Crimes and Command Responsibilityii. Bring persons alleged to have committed grave breaches before its courts, regardless of the person’s nationality. This is the basis for “universal jurisdiction” over grave breaches.

iii. Alternatively, hand the person over to another Party willing to

pro secute.

c. AP I contains additional acts that constitute grave breaches of that Protocol. (AP I, arts. 11(4) and 85). Some of these relate to targeting decisions, while others are restatements, or extensions, of the Geneva Convention grave breaches.

d. G rave breaches are only possible in an international armed conflict as defined by Common Article 2. In the Tadic case before the International Criminal Tribunal for the Former Yugoslavia (ICTY), the trial court found the defendant Not Guilty of charged gra ve breaches of the Geneva Conventions solely because, in its view, the conflict was not international (i.e., not a Common Article 2 conflict). The Appellate Chamber reversed, ruling that the conflict was international.

2. Other, or Simple Breaches.

a. The Conventions do not provide a term for breaches “other” than grave breaches; “simple” breaches is the term often used. In short, anything that is not a grave breach is a simple breach.

b. With regard to simple breaches, the State’s duty is to “take measures necessary for the suppression of such acts.” (GC I, art. 49; GC II, art. 50; GC III, art. 129; GC IV, art. 146)

. These measures may include prosecution, but might also be nothing more severe than additional training, depending on the breach. By the terms of the Conventions, there

is no universal jurisdiction over simple breaches.

3. Non

- International Armed Conflict . Common Article 3 provides minimum standards that Parties to a conflict are bound to apply, in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting parties. Nothing in Common Article 3, however, discusses individual criminal liability for violation of those standards. Nevertheless, other

instruments may make explicit reference to the standards of Common Article 3 in defining war crimes under that instrument:

1. The Rome Statute for the International Criminal Court, discussed below, specifically provides for prosecution of violations of Common Article 3. (Rome Statute, article 8(c))

170 War Crimes and Command Responsibility2. 18 U.S.C. § 2441 (War Crimes Act of 1996, as amended) permits prosecutions for violations of Common Article 3 in the U.S. federal court

system.

D. Genocide

. The Genocide Convention 53 defined this crime t o consist of killing and other acts committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group, “whether committed in time of peace or in time of war.” (Genocide Convention, art. 1). Although the Genocide Conven tion defines the crime, it contemplates trial before “a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction.” (Genocide Convention, art. 6).

E. International Crim inal Court

. The ICC has jurisdiction over the following crimes:

1. Genocide . The definition (Rome Statute, art. 6) is consistent with that of the

Genocide Convention.

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

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

nexus.

b. However, jurisdiction exits only where the “attacks” are “widespread or systematic.” This language suggests that there must be something akin to

a n armed conflict or at least large

- scale governmental abuse.

3. War Crimes . For the purposes of the ICC (Rome Statute, art. 8), war crimes

means:

53 Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature Dec. 11, 1948, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951). The U.S. ratified the Genocide Convention in
1988, and provided for domestic implementation by 18 U.S.C. § 1091.

171 War Crimes and Command Responsibilitya. In the case of an International Armed Conflict:

i. Grave Breaches of the Geneva Conventions.

ii. Serious v iolations of the Laws and Customs of War applicable in

international armed conflict. The statute lists what are considered to

be serious violations.

b. In the case of an Non

- International Armed Conflict:

i. Violations of Common Article 3.

ii. Other violat ions of the laws and customs of war “applicable ...

within the established framework of international law.”

A. The Statue provides a list of these crimes, drawn from various

treaties.

B. It also criminalizes the attack of personnel, equipment, installations, or vehicles involved with a UN peacekeeping or

humanitarian mission.

C. Recognizes that the Statute does not apply to situations of mere

internal disturbances and tensions that do not rise to the level

of a Common Article 3 conflict.

c. Rome Statute, art. 9, contemplated the publication of elements to each of the crimes discussed above, in a manner similar to the way UCMJ

offenses are broken down into constituent elements in the Manual for

Courts

- Martial. The elements were adopted for use in 2002. 54

4. Cri me of Aggression

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

F. Specialized Tribunals.

54 See The International Criminal Court, Elements of Crimes , at http://www.icc

cpi.int/Menus/ICC/Legal+Texts+and+Tools/Official+Journal/Elements+of+Crimes.htm

. See also K NUT
D ÖRMANN

, E LEMENTS OF W AR C RIMES UNDER THE R OME S TATUTE OF THE I NTERNATIONAL C RIMINAL
C OURT (2003), for an analysis of each of the crimes and their respective elements.

172 War Crimes and Command Responsibility1. Nuremberg Tribunals

. The Charter of the International Military Tribunal defined the following crimes 55 as falling within the Tribunal’s jurisdiction:

a

. Crimes Against Peace . Planning , preparation, initiation, or waging of a declared or undeclared war of aggression, or war otherwise in violation of international treaties, agreements, or assurances. This w as a charge intended to be leveled against high

- level policy planners, not generally at ground commanders.

b

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

dur ing the war.

c

. Violation of the Laws and Customs of War . The traditional violations of the laws or customs of war; for example, targeting non

- combatants.

2. International Criminal Tribunal for the Former Yugoslavia.

a. Crimes against Peace or Crime of Aggression are not among listed

offenses to be tried.

b. Violations of the Laws or Customs of War (War Crimes).

i. Traditional offenses such as murder, wanton destruction of citie s, towns or villages or devastation not justified by military necessity, firing on civilians, plunder of public or private property and taking of hostages.

ii. The Opinion & Judgment in the Tadic case set forth elements of proof required for finding that t he Law of War had been violated:

A. An infringement of a rule of international humanitarian law (Hague, Geneva, other);

B. Rule must be customary law or treaty law;

55 See Charter of the International Military Tribunal, art. 6, annexed to the Agreement for the Prosecution

a nd Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, reprinted in 1 Trials of

War Criminals 9

- 16

. See generally Oppenheim

, supra note 15, at 257 (noting that only one accused was found guilty solely of crimes against peace and two guilty solely of crimes against humanity).

173 War Crimes and Command ResponsibilityC. Violation is serious; grave consequences to victim or breach of law that protects import ant values;

D. Must entail individual criminal responsibility; and

E. May occur in international or internal armed conflict.

c. Crimes Against Humanity . Those inhumane acts that affront the entire international community and humanity at large. Crimes whe n committed as part of a widespread or systematic attack on civilian population.

i. Charged in the indictments as murder, rape , torture, and persecution on political, racial, and religious grounds, extermination, and deportation.

ii. In the Tadic Judgment, the Court cited elements as:

A. A serious inhumane act as listed in Statute;

B. Act committed in international or internal armed conflict;

C. At the time accused acted there were ongoing widespread or systematic attacks directed against civilian populatio n;

D. Accused knew or had reason to know he/she was participating in widespread or systematic attack on population (actual knowledge);

E. Act was discriminatory in nature; and

F. Act had nexus to the conflict

.

iii. Crimes against humanity also act as a gap filler to the crime of Genocide, because a crime against humanity may exist where a political group becomes the target.

d. Grave Breaches . As defined by the Geneva Conventions, may occur only

in the context of an international armed conflict.

e. Genocide . Any of the listed acts committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group.

174 War Crimes and Command Responsibility3. International Criminal Tribunal for Rwanda

.

a. Genocide

. Sa me definition as above. Charged in all indictments for acts such as torturing or killing of Tutsis.

b. Crimes against Humanity . Crimes when committed as part of widespread or systematic attack against any civil population on national, political,

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

c. Violations of Common Article 3 and AP II

. These are war crimes committed in the context of an internal armed conflict and traditionally left to domestic prosecution, but made subject to international prosecution pursuant to the Rwanda Statute.

4. Special Court for Sierra Leone

. Categories of crimes include:

a. Crimes Against Humanity.

b. Violations of Common Article 3 and Additional Protocol II.

c. Other Serious Violations of International Humanitarian Law.

d. Certain Crimes under Sierra Leonean Law, to include offenses r elating to the abuse of girls under the Prevention of Cruelty to Children Act (1926) and offenses relating to the wanton destruction of property under the Malicious Damage Act (1861).

5. Statute of the Iraqi High Tribunal.

a. Genocide.

b. Crimes Against Humanity.

c. War Crimes.

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

G. Defenses in a War Crimes Prosecution

. Not well

- settled based upon the competing interests of criminal law principles and the seriousness of protecting victims from war

175 War Crimes and Command Responsibilitycrimes, crimes against humanity, etc. Defenses available will be specifically

established in the court’s con stituting documents (although an argument from customary international law is always open as a possibility for a zealous defense counsel).

1. Official Capacity or Head of State Immunity

. Historically, this was thought a

comp lete defense rooted in sovereign immunity. The Charter for the International Military Tribunal explicitly rejected the defense, stating, “The official position of defendants, whether as Heads of State or responsible officials in Government Departments, sh all not be considered as freeing them from responsibility or mitigating punishment.” (Charter of the I.M.T., art. 7).

The Rome Statute for the International Criminal Court contains a similar provision (Rome Statute, art. 27). However, in the absence of a specific treaty or like provision which disposes of the defense, it appears that the defense of official capacity exists in customary international law. The International Court of Justice so held when it directed Belgium to quash an indictment of a sitt ing foreign minister of the Congo alleged to have committed war crimes, including grave breaches of the Geneva Conventions, even though the conduct was committed prior to the charged person’s tenure as foreign minister. 56 Insofar as the Court opined that B elgium could reinstate their warrant after the person had ceased to be foreign minister, the case could be limited to the proposition that, absent a conventional source which provides otherwise, the immunity of officials is absolute, but temporary.

2. Supe rior Orders

. Generally, it is only a possible defense if the defendant was required to obey the order, the defendant did not know it was unlawful, and the order was not manifestly unlawful.

3. Duress

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

4. Lack of Mental Responsibility

. Not clearly defined in customary international law. Possibly available if the defendant, due to mental disease or defect, did not

56 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, 2002

I.C.J. 3 (Feb. 14).

176 War Crimes and Command Responsibilityknow the nature and quality of the criminal act or was unable to control his/her

conduct.



### IV. C OMMAND 

### R ESPONSIBILITY F OR T H E 

### C RIMINAL 

### A CTS O F 

### S UBORDINATES

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

B. Customary International Treatment of Command Responsibility.

1. As with other customary international law theories of criminal liability, the doctrine dates back almost to the beginning of org anized professional armies. In his classical military treatise, Sun Tzu explained that the failure of troops in the field cannot be linked to “natural causes,” but rather to poor leadership. International recognition of the concept of holding commanders liable for the criminal acts of their subordinates occurred as early as 1474 with the trial of Peter of Hagenbach. 57

2. A commander is not strictly liable for all offenses committed by subordinates. The commander’s personal dereliction must have contribute d to or failed to prevent the offense. Japanese Army General Tomoyuki Yamashita was convicted and sentenced to hang for war crimes committed by his soldiers in the Philippines. Although there was no evidence of his direct participation in the crimes, the Military Tribunal determined that the violations were so widespread in terms of time and area, that the General either must have secretly ordered their commission or failed in his duty to discover and control them. Most

commentators have concluded that Y amashita stands for the proposition that

where a commander knew or should have known that his subordinates were involved in war crimes, the commander may be liable if he or she did not take reasonable and necessary action to prevent the crimes. 58

3. Two cas es prosecuted in Germany after WWII further helped to define the doctrine of command responsibility.

a. In the High Command case, the prosecution tried to argue a strict liability standard. The court rejected this, however, and stated: “Military

subordin ation is a comprehensive but not conclusive factor in fixing

57 See William H. Parks, Command Responsibility for War Crimes, 62 M IL L. R EV . 1 (1973).

58 U.S. v . Tomoyuki Yamashita, Military Commission Appointed by Paragraph 24 , Special Orders 110, Headquarters United States Army Forces Western Pacific, Oct. 1, 1945.

177 War Crimes and Command Responsibilitycriminal responsibility . . . A high commander cannot keep completely informed of the details of military operations of subordinates . . . He has the right to assume that details entrusted to res ponsible subordinates will be legally executed . . . There must be a personal dereliction. That can only occur where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his

par t. In the latter case, it must be a personal neglect amounting to a wanton, immoral disregard of the action of his subordinates amounting to acquiescence. Any other interpretation of international law would go far beyond the basic principles of criminal la w as known to civilized nations.”

b. The court in the Hostage Case found that knowledge might be presumed where reports of criminal activity are generated for the relevant commander and received by that commander’s headquarters.

C

. AP I, art. 86

. Represen ts the first attempt to codify the customary doctrine of command responsibility. The mens rea requirement for command responsibility is

“ knew, or had information which should have enabled them to conclude” that war crimes were being committed and “did not take all feasible measures within their power to prevent or repress the breach.”

D. The International Criminal Tribunals for the Former Yugoslavia and Rwanda.

1. “Individual Criminal Responsibility: The fact that any of the acts referred to in

articles 2 to 5 of the present Statute were committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know

that the subordinate was about to commit such acts or had done so and the superior failed to take the nec essary and reasonable measures to prevent such acts or to punish the perpetrators thereof.” ( ICTY Statute, art. 7(3); ICTR

Sta tute, art. 6(3)(emphasis added))

2. In ICTR, the doctrine of superior responsibility was used in numerous indictments; for exampl e, those against Theoneste Bagosora (assumed official

and de facto control of military and political affairs in Rwanda during the 1994 genocide) and Jean Paul Akayesu (bourgmestre (mayor), responsible for executive functions and maintenance of public order within his commune).

3. In ICTY, the doctrine of command responsibility was used in numerous indictments, to include those against Slobodan Milosevic (President of the FRY), Radovan Karadzic (as founding member and President of Serbian Democratic Party) a nd Gen. Ratko Mladic (Commander of JNA Bosnian Serb Army).

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

1. Art. 28(a) states: “A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

a. That military commander or person either knew or, owing to the circumstances at the time, should have known that the force s were committing or about to commit such crimes; and

b. That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorit ies for investigation and prosecution.”

2. Art. 28(b) states: “With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by su bordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

a. The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;

b. The crimes concerned activities that were within the effective responsibility and control of the superior; and

c. The superior failed to take all necessary and reasonable measures within

his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.”

F. Prosecution of command responsibility cases in the U.S. Military.

1

. It is U.S. Army policy that soldiers be tried in courts

- martial rather than international forums. (FM 27

- 10, para. 507)

179 War Crimes and Command Responsibility2. No separate crime of command responsibility or theory of liability exists, such as conspiracy, for command responsibility in the U CMJ. 59

3. UCMJ, art. 77, Principals.

a. For a person to be held liable for the criminal acts of others, the non

participant must share in the perpetrator’s purpose of design, and “assist, encourage, advise, instigate, counsel, command, or procure another to commit, or assist....” Where a person has a duty to act, such as a security guard, inaction alone may create liability. However, Art. 77 suggests that actual knowledge , not a lack of knowledge due to negligence, is required.

b. At the court

- martial of Cap tain Medina for his alleged participation in the My Lai incident in Vietnam, the military judge instructed the panel that they would have to find that Medina, the company commander, had actual knowledge in order to hold him criminally liable for the massac re. There was not enough evidence to convict Captain Medina under the standard and he was acquitted of the charges. 60 Accordingly, it appears that in

courts

- martial, a prosecutor must establish actual knowledge on the part of

the accused.



### V. F ORUMS F OR T H E 

### P ROSECUTION O F 

### W AR 

### C RIMES

A. International v. Domestic Crimes.

1. Built on the concept of national sovereignty, jurisdiction traditionally follows territoriality or nationality.

2. Universal international jurisdiction first appeared in piracy cases where the goal was to protect trade and commerce on the high seas, an area generally believed to be without jurisdiction.

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

“God and man” t ranscended the notion of sovereignty.

59 For a discussion of this and some proposed changes, see Michael L. Smidt, Yamashita, Medina an d Beyond: Command Responsibility in Contemporary Military Operations, 164 M IL

. L. R EV . 155 (2000).

60 See U.S. v. Calley, 46 C.M.R. 1131 (A.C.M.R. 1973); U.S. v. Medina, C.M. 427162 (A.C.M.R. 1971 ).

180 War Crimes and Command ResponsibilityB. Current International Jurisdictional Basis.

1. Grave Breaches of the Geneva Conventions

a. As discussed above, the Geneva Conventions establishes universal jurisdiction over those offenses which it defines as grave breaches. “Each High Contracting Party . . . shall bring [persons alleged to have committed grave breaches], regardless of their nationality, before its own courts.” (GC I, art. 49; GC II, art. 50; GC III, art. 129; GC IV, art. 146.)

b. There is no compa rable provision granting universal jurisdiction over simple breaches.

2. Violation of the Laws and Customs of War . It is not clear the extent to which customary international law vests universal jurisdiction is States for serious

violations of the law of war other than Geneva Conventions grave breaches. Most prosecutions have been sponsored by States intimately affected by the violations (e.g., Nuremburg, Tokyo) or been sanctioned by UN Security Council action. Some States, notably Belgium and Spain, hav e been active in charging alleged war criminals around the world. Spain has limited itself to cases where there has been a connection with Spain, generally cases where Spanish citizens have been among the victims. Belgium, in a 1993 law, passed a true un iversal jurisdiction law, which required no connection at all between the charged conduct and Belgium at all. The law was revised in 2003, however, to limit charges to those alleged offenses with a direct link to Belgium.

3. International Criminal Court.

a. The ICC has personal jurisdiction over:

i. State parties;

ii. Nationals of State parties;

iii. Conduct occurring within the territory of State parties;

iv. Non

- party States acceding to jurisdiction

b. Recently, the ICC has been granted personal jurisdic tion over nationals of

non

- signatory States through a UNSCR establishing jurisdiction. See UNSCR 1593 (referring charges to the ICC against sitting Sudanese

President Omar el

- Bashir for war crimes).

181 War Crimes and Command Responsibility4. Ad hoc tribunals under the authority of UN Security Co uncil (ICTY or ICTR) or separate treaty (Sierra Leone). Established via a UNSCR.

C. Domestic Jurisdictional Bases . Each nation provides its own jurisdiction. The following is the current U.S. structure.

1. General Courts

- Martial.

a. U.S. service members are subject to court

- martial jurisdiction under UCMJ, art 2(a)(1).

b. UCMJ, art. 18, also grants general court

- martial jurisdiction over “any person who by the law of war is subject to trial by military tribunal.”

c. In 2006, Congress amended UCMJ, art. 2(a)(10), to provide court

- martial jurisdiction over civilians accompanying U.S. forces not only during a

declared war 61 but also during “contingency operations,” which would

include OIF and OEF

2. War Crimes Act of 1 996

. (18 U.S.C. § 2441) (amended in 1997 and 2006). Authorizes the prosecution of individuals in federal court if the victim or the perpetrator is a U.S. national (as defined in the Immigration and Nationality Act) or membe r of the armed forces of the U.S., whether inside or outside the

U.S.. Jurisdiction attaches if the accused commits:

a. A Grave Breach of the 1949 Geneva Conventions.

b. Violations of certain listed articles of the Hague Conventions.

c. Some violations of Common Article 3 of the Geneva Conventions.

d. Violations of Amended Protocol II to the Conventional Weapons Treaty.

D. The Military Extraterritorial Jurisdiction Act of 2000 may also serve as a basis for prosecution for war crimes. DoD issued implementi ng instructions in DoD Instruction 5525.11 on Mar. 3, 2005.

E. Military Commissions.

61 Previous case law had strictly interpreted the “time of declared war” language. U.S. v. Averette, 19

U.S.C.M.A. 363, 41 C.M.R. 363 (1970).

182 War Crimes and Command Responsibility1. Military commissions, tribunals, or provost courts may try individuals for violations of the law of war. (UCMJ, art. 21). This jurisdicti on is concurrent with that of general courts

- martial.

2. Historical use can be traced back to Gustavus Adolphus and his use of a board

of officers to hear law of war violations and make recommendations on their resolution. Frequent use in British military history, which was incorporated into the U.S. Military from its beginning. Used first in U.S. to try Major John Andre for spying in conjunction with General Benedict Arnold. Later used by then

General Andrew Jackson after the Battle for New Orleans in 1 815, and again during the Seminole War and the Mexican

- American War. Used extensively in Civil War to deal with people hostile to Union forces in “occupied” territories. Its use continued in subsequent conflicts and culminated in World War II where

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

3. In Hamdan v. Rumsfeld, 548 U.S. 557 (2 006), the Supreme Court called into question the President’s unilateral power to convene military commissions, a power which had earlier been recognized in Ex p arte Quirin, 317 U.S. 1 (1942 ). Congress responded with Military Commissions Act of 2006. 62 The Act was revised and amended by the Military Commissions Act of 2009. 63 Among its most important provisions:

a. Jurisdiction is established over an alien who is also an “unprivileged enemy belligerent,” defined as an individual other than a privileged

bell igerent ( i .e., one who qualifies for POW protection under GC III, art.

4 ) who :

i

. H as engaged in hostilities against the United States or its coalition

partners;

ii

. H as purposefully and materially supported hostilities against the

United States or its coa lition partners; or

ii

. W as a part of al Qaeda at the time of the alleged offense. 64

62 Military Commissions Act of 2006, Pub L. No. 109

- 366, 120 Stat. 2600 (2006)

, codified at 10 U.S.C. §§ 948a et seq

.

63 Military Commissions Act of 2009, Pub. L. No. 111

- 84, 123 Stat. 2190.

64

. 10 U.S.C. § 948a.

183 War Crimes and Command Responsibilityb. Sets forth in detail procedures to be followed in such commissions, which generally follow those of general courts

- martial, with the exception of:

i. Speedy trial;

ii. R ules related to compulsory self

- incrimination; and

iii. The requirement for pre

- trial investigations (i.e., Article 32, UCMJ investigations). 65

c. Specifically excludes from evidence any statements obtained through torture or other cruel, inhuman, or degrad ing treatment. Other statements

are admissible if probative and voluntary. 66

d. Defines the specific crimes amenable to trial by military commission. 67 The crimes are generally consistent with “classic” war crimes, though a

new offense of “terrorism” is in cluded. 68



### F OR 

### F URTHER 

### R EADING

A. I NTERNATIONAL M ILITARY T RIBUNAL

, T RIAL OF THE M AJOR W AR C RIMINALS (1947) (42 volumes).

B. T RIALS OF W AR C RIMINALS B EFORE THE N UREMBERG M ILITARY T RIBUNALS U NDER
C ONTROL C OUNCIL L AW N O

. 10 (1950) (15 volumes).

C. I NTERNATIONAL J APANESE W AR C RIMES T RIALS IN THE I NTERNATIONAL M ILITARY
T RIBUNAL FOR THE F AR E AST (209 volumes).

D. U NITED N ATIONS W AR C RIMES C OMMISSION

, L AW R EPORTS OF T RIALS OF W AR
C RIMINALS (1948) (15 volumes).

E. U NITED N ATIONS W AR C RIMES C OMMISSION

, H ISTORY OF THE U NITED N ATIONS W AR
C RIMES C OMMISSION (1948).

65 10 U.S.C. § 948b. Sub

- chapters III

– VII contain the detailed procedures, from Pre

- Trial through Post

Trial matters.

66 10 U.S.C. § 948r.

67 10 U.S.C. § 950t.

68 10 U.S.C. § 950t(2 4).

184 War Crimes and Command ResponsibilityF. Statute of the International Criminal Tribunal for the Former Yugoslavia. S.C. Res.
827, U.N. SCOR, 48 th Sess., 3217 th mtg., U.N.Doc. S/RES/808 (1993); further amended in U.N. Security Council Resolutions 11 66 (13 May 1998), 1329 (30 Nov 2000) and 1411 (17 May 2002).

G. Rules of Procedure & Evidence, International Criminal Tribunal for the Former Yugoslavia Since 1991, Seventh Session, the Hague, U.N. Doc. IT/32/Rev. 22 (Dec. 13, 2001).

H. S.C. Res, 955, U.N. SCOR, U.N. DOC. S/RES/955(1994), reprinted in 33 I.L.M. 1598, Nov. 8, 1994 [Statute for the International Criminal Tribunal for Rwanda].

I. Y ORAM D INSTEIN & M ALA T ABROY

, W AR C RIMES I N I NTERNATIONAL L AW (1996).

185 War Crimes and Command Responsibility186 War Crimes and Command Responsibility

## H UMAN 

## R IGHTS

I. O BJECTIVES

A. Understand t he history and development of international human rights law and how it

interacts with the law of war.

B. Understand those human rights considered customary international law.

C. Understand major international human rights treaties, their scope and applica tion, as well as the Unites States’ approach to human rights treaty law.

D. Understand different regional international human rights systems.



### II. I NTRODUCTION

A. Human rights law 1 focuses on the life and dignity of human beings . I n contrast with most international law, international human rights law protects persons as individuals rather than as subjects of sovereign States.

B. To best understand international human rights law, it may be useful to think in terms of obligation versu s aspiration. International human rights law exists in two forms: treaty law and customary international law (CIL)

. 2 Human rights law established by treaty generally only binds the state in relation to persons within its territory and subject to its jur isdiction, and tends to be more aspirational. Human rights law based on CIL binds all States, in all circumstances, and is thus obligatory. For official U.S. personnel (“State actors” in the language of human rights law) dealing with civilians

outside th e territory of the United States , it is CIL that establishes the human rights considered fundamental, and therefore obligatory. Unfortunately, however, there exists no authoritative source that articulates which human rights the United States

considers to be CIL.



### III. H ISTORY AND 

### D EVELOPMENT OF 

### I NTERNATIONAL 

### H UMAN 

### R IGHTS 

### L AW

A. As a field of international law, human rights did not fully develop until the years following World War II. The systematic abuse and near

- extermination of entire

1 All references to “human rights law” in this chapter refer to international human rights law, not to domestic human rights law.

2 See R ESTATEMENT (T HIRD ) OF THE F OREIGN R ELATIONS L AW OF THE U NITED S TATES , at § 701 (2003) [hereinafter Restatement ].

187 Human Rightspopulations by Sta tes gave rise to a truly revolutionary aspect of human rights as international law. Prior to modern human rights law, how States treated their own citizens was regarded as a purely domestic matter . Furthermore, individual s had not been the object of prot ection of international law. Instead, international law had regulated State conduct vis

- à

- vis other States. International law only protected individuals as symbols of their parent States (e.g., diplomatic immunity). As sovereigns in the international sy stem, States could expect other States not to interfere in their internal affairs. Human rights law, however, pierced the “veil of sovereignty” by seeking directly to regulate how States treated their own people within their

own borders

. 3

1. The Nuremberg War Crimes Trials are an example of a human rights approach to protection. The trials held former government officials legally responsible for the treatment of individual citizens within the borders of their state. The trials did not rely on domestic la w, but rather on novel charges like “crimes against humanity.”

2. Human rights occupied a central place in the newly formed United Nations.

The Charter of the United Nations contains several provisions dealing directly with human rights. One of the earli est General Assembly resolutions, the Universal Declaration of Human Rights 4 (UDHR), is undoubtedly the strongest international statement of universal human rights norms.

3. Following the adoption of the 1949 Geneva Conventions , development of the

law of w ar (LOW) began to stall. Through the so

- called Geneva Tradition, the Conventions had introduced an approach to regulating armed conflict that focused on protecting and respecting individuals. By the mid

- 1950’s, however, the LOW process stalled completely . The international community largely rejected the 1956 Draft Rules for Limitation of Dangers Incurred by Civilian Populations in Time of War as a fusion of the Geneva and Hague Traditions. 5
In fact, the LOW would not see a significant development in hum anitarian protections until the 1977 Additional Protocols.

4. At the same time, however, human rights law experienced a boom. Two of the most significant human rights treaties, the International Covenant on Civil and

3 See Louis Henkin, T HE I NTERNATIONAL B ILL OF R IGHTS : T HE C OVENANT ON C IVIL AND P OLITICAL

R IGHTS , 13

– 16 (Henkin ed., 1981) (“International human rights law and institutions are designed to induce states to remedy the inadequacies of their national law and in stitutions so that human rights will be respected and vindicated. ”).

4 Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. GAOR, 3d Sess., U.N. Doc. A/810 (Dec. 10, 1948).

5 Draft Rules for the Limitation of the Dangers Incurred by the Civili an Population in Time of War, reproduced in D IETRICH S CHINDLER & J IŘĪ T OMAN

, T HE L AWS OF A RMED C ONFLICT , 339 (2004).

188 Human RightsPolitical Rights 6 (ICCPR) and the Inte rnational Covenant on Economic Social and Cultural Rights, 7 were adopted and opened for signature in 1966.

B. Human Rights and Law of War . Scholars and States disagree over the interaction between human rights law and the LOW. Positions range from argume nts that they are entirely separate systems to a view that makes the LOW a completely integrated component of human rights law. 8 In the late

- 1960’s, the United Nations General Assembly took on the application of human rights during armed conflict. 9

Ultim ately, however, the resolutions produced few useful pronouncements and many ambiguous references to humanitarian principles.

1. The Traditional / United States View

. 10 Traditionally, human rights law and the LOW have been viewed as separate systems of prot ection. This classic view applies human rights law and the LOW to different situations and different relationships respectively.

a. Human rights law, in the traditional view, regulates the relationship between States and individuals within their territory and under their jurisdiction and may, however, be inapplicable during emergencies. This reflects the original focus of human rights law, which was to protect individuals from the harmful acts of their own governments.

b. Law of War, in the traditional vi ew, regulates wartime relations between belligerents and civilians as well as protected persons, usually not one’s own citizens or nationals. The traditional view notes that LOW largely predates human rights law and, therefore, was never intended to compr ise

a sub

- category of human rights law. This view notes that LOW includes very restrictive triggering mechanisms which limit its application to

6 Int’l Covenant on Civil and Political Rights, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (Dec. 16, 1966) , 999 U.N.T.S. 171 (entered into force Mar. 23, 1976). Reprinted in the Documentary Supplement.

7 Int'l Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3.

8 R ENE P ROVOST

, I NTERNATIONAL H UMAN R IGHTS AND H UMANITARIAN L AW (2002)

.

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

. U. L. R EV

. 935 (1982) [hereinafter Schindler].

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

ILSA J. I NT ’ L & C OMP

. L. 459 (2006 ).

189 Human Rightsspecific circumstances. 11 As such, LOW is cited as a lex specialis to
situations of armed conflict and therefor e applies in lieu of human rights

law. 12 This view, however, is becoming increasingly hard to maintain. 13

2. Emerging view . An expanding group of scholars and States has come to view the application of human rights law and LOW as overlapping. In this view

, human rights law may create rights and duties beyond national borders between States and alien individuals during periods of armed conflict as well as during peace. The International Court of Justice recently adopted this view in two different Advisory Opinions. 14

C. Modern Challenges . As human rights are asserted on a global scale, many governments regard them as “a system of values imposed upon them.” 15 States in Asia and the Islamic world question the universality of human rights as a neo

colonialist attitude of northern states. 16 It is perhaps for this reason that neither of

11 See e.g. GC I, art. 2 ; see also , Legality o f the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ 226, para. 25 (July 8).

12 Christopher Greenwood, Rights at the Frontier

- Protecting the Individual in Time of War

, in L AW AT

THE C ENTRE

, T HE I NSTITUTE OF A DVANCED L EGAL S TUDIES AT F IFTY (1 999); Schindler, supra note 9 , at
397. Lex specialis means that a law governing a specific subject matter ( lex specialis ) is not overridden by a law which only governs related general matters ( lex generalis ).

13 See e.g. , Cordula Droege, Elective Affinitie s? Human Rights and Humanitarian Law 90 I NT ’ L

. R EV

. R ED C ROSS 501, 501 (2008) (“[T]here is today no question that human rights law comes to complement humanitarian law in situations of armed conflict.”)

14 Legality of the Threat or Use of Nuclear Weapons, A dvisory Opinion

, 1996 I.C.J. 226. (“The Court observes that the protection of the International Covenant on Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be deroga ted from in a time of national emergency.”). Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004, I.C.J. 36. The Advisory Opinion in the Wall case explained the operation of this “emerging view” as follows:

As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of hu man rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis , international humanitarian law.

15 M ANFRED N OWAK

, I NTRODUCTION TO THE I NTERNATIONAL H UMAN R IGHTS R EGIME 2 (2003) [hereinafter N OWAK ].

16 See D ARREN J. O’B YRNE

, H UMAN R IGHTS : A N I NTRODUCTION 52

- 55 (2003) (discussing Marxist, Confucian, and Islamic attitudes toward concepts of universal human rights); U PENDRA B AXI

, T HE
F UTURE OF H UMAN R IGHTS 132

- 35 (2002) (citing A RJUN A PPADURAI

, M ODERNITY AT L ARGE : C ULTURAL D IMENSIONS OF G LOBALIZATION (1997); M IKE F EATHERSTONE

, U NDOING C ULTURE : G LOBALIZATION

, P OS TMODERNISM AND I DENTITY (1995)).

190 Human Rightsthese two regions has a separate human rights system, such as the European, Inter

American, or African systems, discussed infra

.



### IV. F UNDAMENTAL 

### H UMAN 

### R IGHTS 

### : T HE 

### O BLIGATION

A. If a specific human right falls within the category of CIL, it should be considered a “fundamental” human right. As such, it is binding on U.S. forces during all overseas operations. This is because CIL is considered part of U.S. law, 17 and human rights

law operates to regulate the way State actors (in this case the U.S. armed forces) treat

all humans. 18 If a “human right” is considered to have risen to the status of CIL, then it is considered binding on U.S. State actors wherever such actors deal with human beings. Unfortunately, for the military practitioner there is no definitive “source list” of those human rights considered by the United States to fall within this category of fundamental human rights . As a result, the Judge Advocate (JA) must rely on a variety of sources to answer this question. These sources may include: the UDHR, although the United States has not taken the position that everything in the UDHR is CIL; Common Article 3 of the Geneva Conventions; and the Restatement (Third) of The Fore ign Relations Law of the United States (2003). The Restatement claims that a State violates international law when, as a matter of policy, it “practices, encourages, or condones” 19 a violation of human rights considered CIL. 20
Furthermore, the Restatement makes no qualification as to where the violation might occur, or against whom it may be directed. Therefore, it is the CIL status of certain human rights that renders respect for such human rights a legal obligation on the part of U.S. forces conducting o perations outside the United States, and not the fact that they may be reflected in treaties ratified by the United States.



### V. H UMAN 

### R IGHTS 

### T REATIES

A. The original focus of human rights law

— to protect individuals from the harmful acts

of their own governm ents 21

— must be re

- emphasized. Understanding this original focus is essential to understand why human rights treaties, even when signed and ratified by the United States, fall within the category of “aspiration” instead of

17 See The Paquete Habana , 175 U.S. 677 (1900); see also R ESTATEMENT

, supra note 2 at § 111.

18 R ESTATEMENT

, supra note 2 , at §701.

19 Id.

20 The Restatement gives the following examples of human rights that fall within the cat egory of CIL: genocide, slavery, murder or causing the disappearance of individuals, torture or other cruel, inhuman, or degrading treatment or punishment, violence to life or limb, hostage taking, punishment without fair trial, prolonged arbitrary detenti on, failure to care for and collect the wounded and sick, systematic racial discrimination, and consistent patterns of gross violations of internationally recognized human rights. Id. at §702.

21 See R ESTATEMENT

, supra note 2, and accompanying text.

191 Human Rights“obligation.” The original focus of human rights law was its “groundbreaking” aspect: that international law could regulate the way a government treated the residents of its own State. Human rights law was not originally intended to protect

individuals from the actions of any government agent they encountered. This is partly explained by the fact that historically, other international law concepts provided for the protection of individuals from the cruel treatment of foreign

nations. 22

B. Major Human Rights Instruments

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

1. International Covenant on Civil and Political Rights (ICCPR) (1966)

. 24 The most preeminent international human rights treaty, the ICCPR was ratified by

the United States in 1992. It is administ ered by UN Human Rights Committee (HRC). Parties must submit reports in accordance with Committee guidelines for review by the HRC. The HRC may question State representatives on the substance of their reports. The HRC may report to the UN Secretary Gene ral.

The HRC issues General Comments to members but those comments have no binding force in international law. The ICCPR addresses so

- called “first generation rights.” These include the most fundamental and basic rights and

freedoms. Part III of the Co venant lists substantive rights.

a. The ICCPR is expressly non

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

22 See id. at Part VII, Introductory Note.

23 T HOMAS B UERGENTHAL ET

. AL

., I NTERNATIONAL H UMAN R IGHTS IN A N UTSHELL 350 (2002).

24 Reprinted in the Documentary Supplement.

25 Human Rights Committee, General Comment No. 31, U.N. Doc. HRI/GEN/1/Rev.6 (2004).

26 Matthew Waxman, Head of U.S. Delegation, Principal Deputy Director of Policy Planning, Dep’t of State, Opening Statement to the U.N. Human Rights Committee (July 17, 2006), http://www.state.gov/g/drl/rls/70392. htm (last visited Feb. 26, 2008) (“[I]t is the longstanding view of the

192 Human Rightsb. First Optional Protocol . T he First Optional Protocol to the ICCPR empowers private parties to file “communications” with the UN HRC. Communications have evolved to operate as a basis for individual causes

of action under the ICCPR. United States is not a party to the First

Protoc ol.

c. Second Optional Protocol . The Second Optional Protocol to the ICCPR seeks to abolish death penalty. United States is also not a party to the

Second Protocol.

2. International Covenant on Economic, Social, and Cultural Rights (ICESCR) (1966)

. The ICESCR deals with so

- called “second generation human rights.” 27
Included in the ICESCR are the right to self

- determination (art. 1), the right to work (art. 6), the righ t to adequate standard of living (art. 11), and the right to an education (art. 13). States that are party to this treaty undertake “to take steps, individually and through international assistance and co

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

3. Convention on the Prevention and Punishment of the Crime of Genocide 28
(1948)

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

States ratified.

4. Convention Against Torture and Other Cruel, Inhuman, and Degrading

Treatmen t (CAT) (1984)

. 29 The CAT is a United Nations treaty, admin istered by UN Committee on Torture, which is composed of ten elected experts. The Committee is informed by periodic reporting system and inter

- state and

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

27 N OWAK

, supra note 15 , at 80.

28 Convention on the Prevention and Punishment of the Crime of Genocide

, Dec. 9,1948, 102 Stat. 3045,

78 UNTS 277 . Reprinted in the Documentary Supplement.

29 Reprinted in the Documentary Supplement.

193 Human Rightsindividual complaint procedures. Article 20 empowers the Committee to conduct independent investigations, but it must have cooperation of the State Party subject of investigation. The Convention Against Torture (CAT) requires States party to the Conv ention to take “effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under [their] jurisdiction.” (CAT, art. 2(1)). The United States ratified the CAT in 1994.

5. Convention on the Elimination of Al l Forms of Racial Discrimination 30 (CEFRD) (1965)

. The CEFRD prohibits and defines racial discrimination as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin” to “nullify[] or impair[] the r ecognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other filed of public

life.” 31 The parties agree to eliminate racial discrimination and apply rights set

ou t in the Universal Declaration of Human Rights and the two Covenants. The CEFRD is administered by United Nations Committee on the Elimination of Racial Discrimination. The United States signed in 1966, transmitted to the Senate in 1978, and ratified the CEFRD in 1994

. 32

C. The United States Treaty Process

.

1. Article II, Section 2, clause 2 of the United States Constitution enumerates to the President the power to make treaties. After receiving the advice and consent

of two

- thirds of the Senate, the Pres ident may ratify a treaty. Article VI of the United States Constitution establishes treaties as “the supreme Law of the Land.” Consequently, treaties enjoy the same force as statutes. When treaties and statutes conflict, the later in time is law.

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

in the United States Senate

.

a. Reservations modify treaty obligations with respect to relevant provisions between parties that accept the reservation; reservations do not modify

30 International Convention on the Elimin ation of All Forms of Racial Discrimination, Dec. 21, 1965, 660

U.N.T.S. 195, 5 I.L.M. 352 (entered into force Jan. 4, 1969).

31 Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 U.N.T.S. 195

.

32 The southern congressiona l delegation’s concern over the international community's view of Jim Crow laws in the South delayed U.S. ratification of this treaty, which was implemented by the Genocide Convention Implementation Act of 1987. See Genocide Convention Implementation Act of 1987, 18

U.S.C. §§ 1091

- 93.

194 Human Rightsprovisions for other parties; if a State refuses a reservation but does no t oppose entry into force between the reserving State and itself, the provision proposed for reservation does not operate between the two

States. 33 An example of a reservation would be the United States’ reservation to the ICCPR whereby it “reserves the ri ght, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes comm itted by persons below eighteen years of age.” 34

b. Understandings are statements intended to clarify or explain matters incidental to the operation of the treaty. For instance, a State might elaborate on or define a term ap plicable to the treaty. Understandings frequently clarify the scope of application. An example of an understanding would be the United States’ understanding to the ICCPR whereby it stated “[t]hat the United States understands that this Covenant

shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments.” 35

c. Declarations give notice of c ertain matters of policy or principle. For instance, a State might declare that it regards a treaty to be non

- self

executing under its domestic law. 36

d. United States practice

. When the Senate includes a reservation or understanding in its advice and con sent, the President may only ratify the treaty to the extent of the ratification or understanding.

D. Application of Human Rights Treaties . Understanding how the U.S. applies human rights treaties requires an appreciation of two concepts: non

- extraterrit oriality and

non

- self execution.

33 Vienna Convention on the Law of Treaties, .N. Doc. A/CONF.39/27 (1969), reprinted in 63 A M

. J.

I NT ’ L L. 875 (1969), and in 8 I.L.M. 679 (1969). Reprinted in the Documentary Supplement.

34 International Covenant on Civil and Political Rights, Text of Resolution of Advice and Consent to Ratification as Reported by the Committee on Foreign Relations and App roved by the Senate (Apr. 2

, 1992 ). The RUDs mentioned in the text are reprinted in the Documentary Supplement following the

ICCPR.

35 Id.

36 See e.g

., id. (“[T]he United States declares that the provisions of Articles 1 through 27 of the Covenant

are not s elf

- executing.”).

195 Human Rights1. Non

- extraterritoriality

. In keeping with the original focus of human rights law, the United States interprets human rights treaties to apply to persons living in the territory of the United States, and not to any person with whom agents of our government deal outside of our borders. 37 This theory of treaty interpretation is referred to as “non

- extraterritoriality.” 38 The result of this theory is that these international agreements do not create treaty

- based obligations o n U.S. forces when dealing with civilians in another country during the course of a contingency operation. This distinction between the scope of application of fundamental human rights, which have attained CIL status, versus the scope of application of no n

- core treaty based human rights, is a critical aspect of human rights law JAs must grasp.

2. Non

- self execution

. While the non

- extraterritorial interpretation of human rights treaties is the primary basis for the conclusion that these treaties do not bind U.S. forces outside the territory of the U.S., JAs must also be familiar with the concept of treaty execution

. According to this treaty interpretation doctrine, although treaties entered into by the United States become part of the “supreme law of the land,” 39 some are not enforceable in U.S. courts absent subsequent legislation or executive order to “execute” the obligations created by

such treaties.

37 While the actual language used in the scope provisions of such treaties usually makes such treaties applicable to “all individuals subject to [a state’s] jurisdiction” the United States interprets such scope provisions as referring to t he United States and its territories and possessions, and not any area under the functional control of United States armed forces. This is consistent with the general interpretation that such treaties do not apply outside the territory of the United State s. See R ESTATEMENT

, supra note 2, at §322(2) and Reporters’ Note 3; see also C LAIBORNE P ELL R EPORT ON THE I NTERNATIONAL C OVENANT

ON C IVIL AND P OLITICAL R IGHTS

, S. E XEC

. C OC

. N O

. 102

- 23 (Cost Estimate) (This Congressional Budget Office Report indicated tha t the Covenant was designed to guarantee rights and protections to people living within the territory of the nations that ratified it).

38 See Theodore Meron, Extraterritoriality of Human Rights Treaties , 89 A M

. J. I NT ’ L L . 78

- 82 (1995) ;

s ee also C ENTER FOR L AW AND M ILITARY O PERATIONS

, T HE J UDGE A DVOCATE G ENERAL ’ S S CHOOL

, U NITED S TATES A RMY

, L AW AND M ILITARY O PERATIONS IN H AITI , 1994

- 1995 , at 49 (1995) (citing human rights groups that mounted a defense for an Army captain that misinterpreted the ICCPR to cre ate an affirmative obligation to correct human rights violations within a Haitian Prison). See also L AWYERS ’

C OMMITTEE FOR H UMAN R IGHTS

, P ROTECT OR O BEY : T HE U NITED S TATES A RMY VERSUS CPT

L AWRENCE R OCKWOOD 5 (1995) (reprinting an amicus brief submitted in opposition to a prosecution pretrial motion).

39 U.S. C ONST

. art VI. According to the Restatement, “international agreements are law of the United States and supreme over the law of the several states.” R ESTATEMENT , s upra note 2 , at §111. The

Restatemen t Commentary states the point even more emphatically: “[T]reaties made under the authority of the United States, like the Constitution itself and the laws of the United States, are expressly declared to be ‘supreme Law of the Land’ by Article VI of the Con stitution.” Id. at cmt. d.

196 Human Rightsa. This “self

- execution” doctrine rel ates primarily to the ability of a litigant to secure enforcement for a treaty provision in U.S. courts. 40 However, the impact on whether a JA should conclude that a treaty creates a binding obligation on U.S. forces is potentially profound. First, there is an argument that if a treaty is considered non

- self

- executing, it should not be regarded as creating such an obligation. 41 More significantly, once a treaty is executed, it is the subsequent executing legislation or executive order, and not the treaty p rovisions, that is given effect by U.S. courts, and therefore defines the scope of U.S. obligations under our law. 42 U.S. courts have generally held human rights treaties to be non

- self

- executing

and therefore not bases for causes of action in domestic cou rts. 43

b. The U.S. position regarding the human rights treaties discussed above is that “the intention of the United States determines whether an agreement

is to be self

- executing or should await implementing legislation.” 44 Thus, the U.S. position is that its unilateral statement of intent, made through the

40 See R ESTATEMENT

, supra note 2 , at cmt h.

41 There are several difficulties with this argument. First, it assumes that a U.S. court has declared the

treaty non

- self

- executing, because absent such a ruling, the non

- self

- executin g conclusion is questionable: “[I]f the Executive Branch has not requested implementing legislation and Congress has not enacted such legislation, there is a strong presumption that the treaty has been considered self

- executing by the political branches, a nd should be considered self

- executing by the courts.” R ESTATEMENT

, supra note 2, at §111, Reporters Note 5. Second, it translates a doctrine of judicial enforcement into a mechanism whereby U.S. state actors conclude that a valid treaty should not be con sidered to impose international obligations upon those state actors, a transformation that seems to contradict the general view that failure to enact executing legislation when such legislation is needed constitutes a breach of the relevant treaty obligati on. “[A] finding that a treaty is not self

- executing (when a court determines there is not executing legislation) is a finding that the United States has been and continues to be in default, and should be avoided.” Id.

42 “[I]t is the implementing legislat ion, rather than the agreement itself, that is given effect as law in the

United States.” Id. Perhaps the best recent example of the primacy of implementing legislation over treaty text in terms of its impact on how U.S. state actors interpret our obliga tions under a treaty was the conclusion by the Supreme Court of the United States that the determination of refugee status for individuals fleeing Haiti was dictated not pursuant to the Refugee Protocol standing alone, but by the implementing legislation f or that treaty

– the Refugee Act. United States v. Haitian Centers Council, Inc

. , 113 S. Ct. 2549 (1993).

43 In Sei Fujii v. California , 38 Cal. 2d, 718, 242 P. 2d 617 (1952), the California Supreme Court heard a

claim that UN Charter Articles 55 and 56 in validated the California Alien Land Law. The land law had varied land owner rights according to alien status. The court struck down the law on equal protection grounds but overruled the lower court’s recognition of causes of action under the UN Charter. The court stated, “The provisions in the [C]harter pledging cooperation in promoting observance of fundamental freedoms lack the mandatory quality and definiteness which would indicate an intent to create justiciable rights in private persons immediately upon ratification.” 242 P. 2d at 621

- 22

. Federal and state courts have largely followed Sei Fujii’s lead.

44 See R ESTATEMENT

, supra note 2 , at § 131.

197 Human Rightsvehicle of a declaration during the ratification process, is determinative of the intent of the parties. Accordingly, if the United States adds such a declaration to a treaty, the declaration determines the interpretation the United States will apply to determining the nature of the obligation. 45

3. Derogations. Each of the major human rights treaties to which the United States is a party includes a deroga tions clause. Derogation refers to the legal right to suspend certain human rights treaty provisions in time of war or in cases of national emergencies . Certain rights, however, may not be derogated

from:

a. Right to life;

b. Prohibition on torture;

c. P rohibition on slavery;

d. Prohibition on ex post punishment;

e. Nor may States adopt measures inconsistent with their obligations under

international law.



### VI. I NTERNATIONAL 

### H UMAN 

### R IGHTS 

### S YSTEMS

A. General . International human rights are developed and impl emented through a layered structure of complimentary and coextensive systems. “The principle of universality does not in any way rule out regional or national differences and peculiarities.” 46 As the United States participates in combined operations, JAs will find that allies may have very different conceptions of and obligations under human rights law. In addition to the global system of the United Nations, regional human rights systems, such as the European, Inter

- American, and African systems, have

dev eloped in complexity and scope. Judge Advocates will benefit from an appreciation of the basic features of these systems as they relate to allies’ willingness to participate in and desire to shape operations. 47 Moreover, in an occupation setting,

JAs must understand the human rights obligations, both international and domestic, that may bind the host nation as well as how that host nation interprets those obligations.

45 See R ESTATEMENT

, supra note 2 , at § 111, cmt.

46 N OWAK

, supra note 15, at 2.

47 Sei Fujii v. California, 3 8 Cal.2d 718, 242 P.2d 617 (1952).

198 Human RightsB. The United Nations System . An understanding of international human rights obligations begins with the primary human rights system, the UN system, the foundation of which is the Universal Declaration of Human Rights.

1. The Universal Declaration of Human Rights (UDHR)

. The UDHR was a UN

General A ssembly Resolution passed on December 10, 1946. The UDHR is not a treaty but many of its provisions reflect CIL. The UDHR was adopted as “a common standard of achievement for all peoples and nations.”

2. The Human Rights Committee (HRC)

. The HRC was established by the ICCPR as a committee of independent human rights experts who oversee implementation of the treaty. In this role, the HRC reviews the periodic reports submitted by states party to the ICCPR. The HRC may also hear “communications” from individuals in states party to the (First) Optional

Protocol to the ICCPR. The United States, however, is not a party to the

First Protocol to the ICCPR.

3. The Human Rights Council

. The Human Right s Council is an inter

governmental body within the UN system made up of forty

- seven States responsible for strengthening the promotion and protection of human rights around the globe. The Council was created by the UN General Assembly in

March of 2006 wit h the main purpose of addressing situations of human rights violations and making recommendations on them. The Human Rights Council replaced the UN Commission on Human Rights, another General Assembly

created body designed to monitor and strengthen intern ational human rights practices. 48

C. The European Human Rights System

. The European Human Rights System was the first regional human rights system and is widely regarded to be the most robust. The European System is ba sed on the 1950 European Convention of Human Rights, a seminal document that created one of the most powerful human rights bodies in the world, the European Court of Human Rights.

D. The Inter

- American Human Rights System

. The Inter

- American System is based on the Organization of the American States (OAS) Charter and the American Convention on Human Rights. The OAS Charter created the Inter

- American Commission on Human Rights. The American Convention on Human Rights

, of

which the United States is not a party , created the Inter

- American Court of Human Rights. Because the United States is not a party to the American Convention, it is not

48 G

. A . Res. 60/251

, U.N. Doc A/Res/60/251 ( Apr. 3

, 2006 ).

199 Human Rightssubject to that court’s jurisdiction. However, the United States does respond to t he

comments and criticisms of the Inter

- American Commission on Human Rights. 49

E. The African Human Rights System

. The African System falls under the African Union, which was established in 2001. It is, therefore, the m ost recent and least formed human rights system. The African system is based primarily on the African Charter on Human and Peoples’ Rights which entered into force in 1986. The Charter created the African Commission on Human and People’s Rights. A later protocol created an African Court of Human and People’s Rights, designed to complement the work of the Commission. The Court came into being as a treaty body in 2004, however, it is still in the development stage.

49 See e.g ., U.S. Additional Response to the R equest for P recautionary M easures : D etention of E nemy C ombatants at Guantanamo Bay, Cuba, (July 15, 2002), available a t http://www.state.gov/s/l/38642.htm

.

200 Human Rights

## C OMPARATIVE 

## L AW

I. O BJECTIVES

A. Reali ze the importance of comparative law to an international/operational attorney.

B. Understand the difference between International Law, Foreign Law, and Comparative

Law.

C. Recognize a general approach for researching comparative law.

D. Gain familiarity wi th the differences and similarities between the predominant legal

traditions , as well as their geographical distribution.

E. Understand the distinction between legal traditions and legal systems

.



### II. D EFINING 

### C OMPARATIVE 

### L AW

A. What is “law?”

1. From Black ’s Law Dictionary :

a. “Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling authority, and having binding legal force.”

b. “That which is laid down, ordained, or established.”

c. “The ‘law’ of a state is to be found in its statutory and constitutional enactments, as interpreted by its courts, and, in absence of statute law, in rulings of its courts.”

d. “With reference to its origin, ‘law’ is derived from judicial precedents, from legislation, or from custom. ”

2. Law may mean or embrace:

a. Body of principles, standards, and rules promulgated by government

.

b. Rule of civil conduct commanding what is right and prohibiting what is

wrong

.

201
Comparative Lawc. General rule of human action, taking cognizance only of external acts,

enforced by a determinate authority, which authority is human, and among human authorities is that which is paramount in a political society

.

d. Statute s or enactment s of a legislative body

.

e. Judicial decisions, judgments or decrees

.

f. Long

- established local cus tom which has the force of law

.

g. Administrative agency rules and regulations

.

B. What is the purpose of law? This is a v alue

- laden question with significant philosophical disagreement.

1. One answer is that the purpose of law is t o provide a government of:

a. Security : To protect against anarchy

.

b. Predictability : To allow planning of affairs with confidence in legal

consequences

.

c. Reason : To provide guarantees against official arbitrariness

.

2. Some comparative law scholars refer to four “law jobs”:

a. Social control

.

b. Conflict resolution

.

c. Adaptation and social change

.

d. Norm enforcement

.

C. International law governs relations between two or more States (e.g., UN Charter, Geneva Conventions, Hague Regulations)

.

D. Foreign law is the domestic law of a foreig n State (e.g., the German Civil Code, Bürgerliche Besetzbuch ).

202
Comparative LawE. Comparative law is the study of the similarities and differences between the legal approach of two or more legal traditions (e.g., comparison between the common law

and the civil law approaches to criminal procedure), or between the laws of two or more legal systems (e.g., comparison of U.S. criminal code and the German criminal code). Comparative law can be at the theoretical or applied level.

F. Legal Tradition is a much broade r concept than a “legal system,” and may be thought of as a “legal family.” A legal tradition is a deeply rooted, historically conditioned cultural attitude about the nature of law, the role of law in society

, and the proper

o rganization of a legal system

.

1. Generally, there are seven or eight major legal traditions / families (Common Law, Civil Law, Tribal/customary, Talmudic, Hindu, Islamic, Asian, Socialist). Some scholars would remove the Socialist tradition from the grouping

, and others would add grou ps such as the Scandinavian Tradition

.

2. C ommon L aw tradition is located in England, the U.S., Canada, Australia, South Africa, and New Zealand.

3. C ivil L aw traditions are primarily located in Europe and Latin America.

4. The Muslim or Islamic Law Tradit ion is prevalent throughout the Middle East, Northern Africa, Southeast Asia, and portions of the Pacific.

5. Many countries are a mix of traditions

.

6. E ven with in a legal tradition

, there may be much variance between legal

systems (e.g., prevalence of ju ry trials in U.S. versus U.K.).

G. Legal System is an operating set of legal institutions, procedures, and rules. Thus, there are as many legal systems as there are sovereign States in the world.

H. Theoretical Level of comparative law: how and why certa in legal systems are different or alike (e.g., why does the U.S. Constitution focus on freedom of speech, whereas the premier right in the German “Basic Law” is the inviolability of dignity?).

I. Applied Level of comparative law: how a specific problem ca n best be solved under the given social and economic circumstances ; much richer variety of ideas “than

203
Comparative Lawcould be thought up in a lifetime by even the most imaginative jurist who was corralled in his own system.” 1

1. How positive law should be altered

.

2. Ho w a perceived gap should be filled

.

3. What rules should be adopted in an international uniform law

.



### III. H ISTORICAL 

### B ACKGROUND AND 

### R ELEVAN CE O F 

### C OMPARATIVE 

### L AW

A. Historical Background of Comparative Law

.

1. 18 th and 19 th Centuries

. R ise of sovereignty a nd the influence of legal positivism; beginning of learned societies for cross

- national legal studies and/or comparative law in France, Germany, and England

.

2. 1900

– World Exhibition in Paris . T wo French Scholars (Edouard Lambert and Raymond Saleilles) organized the 1 st International Congress for Comparative Law, with goal of “A Common Law for All Mankind

. ”

3. 20 th Century . F ocus on Common Law vs. Civil Law

. Comparative Law viewed as a tool for Private International Law (international business and comm erce)

.

4. 21 st Century . F ocus shifted to other Legal Traditions . C omparative Law applied to Public International Law, and viewed as useful in cross cultural understanding and diplomacy

.

B. Relevance of Comparative Law . The modern view is that Comparativ e Law is useful

in cross

- cultural understanding and diplomacy (e.g. , as an aid to negotiating more meaningful international agreements)

.

1. For the military international/operational law judge advocate, a comparative law study is a key component of pre

- dep loyment preparation. Not only should the judge advocate have a basic understanding of a host nation’s legal tradition and system to properly advise a commander on planned operations, but in the event that “Rule of Law” and counterinsurgency operations are planned, then a comparative law study is critical.

1 Conrad Zweigert and Hein Ko e tz, Introduction to Comparative Law 15 ( 3 rd ed

. , 1998 )

.

204
Comparative Lawa. “Rule of Law pertains to the fair, competent, and efficient application and fair and effective enforcement of the civil and criminal laws of a society through impartial legal institutions and competent police and corrections systems. This functional area includes judge advocates trained in international law as well as CA specialists in related subjects.” FM 3

­ 05.40, para. 2

- 8

.

b. “When insurgents are seen as criminals, they lose public support. Using a legal system established in line with local culture and practices to deal

with such criminals enhances the Host Nation government’s legitimacy. Soldiers and Marines help establish Host Nation institutions that sustain that legal regime, including polic e forces, court systems, and penal

facilities.” FM 3

- 24, MCWP 3

- 33.5, C ounterinsurgency , para

. 1

- 131

.

c. Some judge advocate activities in furtherance of Rule of Law operations

will include:

i. Determine capabilities of the host nation legal system

.

ii. R eview the host nation laws and legal traditions

.

iii. Advise and assist the host nation development of law consistent with

international standards

.

iv. Evaluate the host nation judicial infrastructure

.

v. Mentor the host nation judges, magistrates, prosecu tors, defense counsel, legal advisors and court administrators

.

d. From a moral perspe ctive, it is problematic for a S tate to impose a legal system that does not reflect its society’s values. From a practical perspective, the failure of a legal system to become internalized can devastate the official legal infrastructure either because of constant resistance or by requiring the S tate to rely on its coercive power to resolve more legal disputes than it has the capacity to handle.

e. Formalist v. Substantive conceptions of the “Rule of Law.”

i. Formalist : Focused on the procedures for making and enforcing law

and the structure of the nation’s legal system

.

ii. Substantive : Focused on the content of the law and protecting certain rights

.

205
Comparative Lawiii. The d istinction b etween “formalist” and “substantive” is a matter of emphasis and priority

. Formalist goals are less likely to result in

controversy and less likely to threaten the cultural identity

.

2. Comparative Law is also important at the international level; for exa mple at the

International Court of Justice , which is the judicial organ of the United Nations.

a. Article 38 of the Statute of the ICJ provides a hierarchy of law which the Court should apply to resolve disputes

. The Court shall apply: (a)

international conventions establishing rules expressly recognized by the contesting states [i.e.

, treaties]; (b) international custom, as evidence of a general practice accepted as law [i.e.

, customary international law]; (c) the general principles of law, recognized by civilized nations [i.e.

, as determined through comparative law studies ] ; (d) judicial decisions and teachings of most highly qualified publicists of various nations, as subsidiary means for determination of rules of law.

b. Article 38 of the Statute of th e ICJ is a useful starting point for understanding the relative hierarchy within international law, as well as recognizing the role that comparative law plays in determining what exactly are “the general principles of law, recognized by civilized

nations.”



### IV. C OMPARATIVE 

### M ETHODOLOGY

A. Comparative Law framework:

1. Is it a “social science” or a separate body of knowledge?

a. Scholars appear to be arguing over whether the data obtained should be regarded simply as part of the method, or whether they should be regarded as a separate body of knowledge.

b. Really the term “comparative law” can be used to include both the method and the data resulting from its application.

2. Macro

- comparison v. micro

- comparison

. Two differen t species of comparative study. There is no one single method applicable.

a. Macro

- comparison refers to the study of two or more ENTIRE legal

systems.

206
Comparative Lawb. Micro

- comparison refers to the study of topics or aspects of two or more legal systems.

3. The a cadem ic aims of Comparative Law include:

a. Aiding and informing the legislative process and law reform

.

b. Understanding the application of foreign law in the courts

.

c. Contributing to the unification and harmonization of laws.

B. Comparative Law Methodology and Research Strategy.

1. Identify the problem and state it precisely. The framing of the particular issue is crucial. What is the problem or issue? What is the goal or objective? What should be compared?

2. Identify the relevant jurisdictions/legal sy stems (which may be based on the availability of research materials).

3. Identify the foreign jur isdiction’s parent legal family u sing sources, mode of legal thought

, and ideology

. Note if it happens to be a “hybrid” system or a system predominantly based on a religious faith

.

4. Find, gather

, and organize primary and secondary sources of law and other

materials.

a. Should give equal attention to historical influence and socio

- economic

factors.

b. Think about hierarchy of sources. Can use l aw codes, case law, law

reports, l aw and socio

- legal journals, and legal periodicals. Also think about using introductory works

, and then go to their bibliographies.

c. Mandatory Authority: treaties , UN Security Council Resolutions, constitutions, statutes, regulations , etc.

d. Persuasive Authority (“Soft Law”): UN General Assembly Resolutions, UN Committee comments/recommendations, Agency Guidelines/Manuals, etc.

20 7 Comparative Lawe. Helpful Secondary Resources: Encyclopedias, Research Guides, Yearbooks, etc. , which are c omparative la w texts on specific topics (e.g.

, comparative criminal law). [Note: A comparative law researcher may want to start with these first to learn the primary sources .]

i. Encyclopedias

.

A. Encyclopedia of Public International Law

.

B. International Encyclopedi a of Laws (comparative) : http://www.cer

- leuven.be/cerleuven/iel/outlines/outlcrim.htm

and http://www.cer

- leuven.be/cerleuven/iel/published.htm

.

ii. Research Guides

.

A. Foreign Law: Current Sources of Codes and Basic Legislation

in Jurisdictions of the World http://www. foreignlawguide.com/login.htm

.

B. CIA World Factbook: https://www.cia.gov/library/publications/the

- world

- factbook/

C. Defense Language Institute resources (Note: contains both

li nguistic and extensive cultural information): http://www.lingnet.org/default.asp

iii. Yearbooks

.

A. Yearbook of the United Nations

.

B. Digest of U.S. Practice in International Law: http://www.state.gov/s/l/6151.htm

.

C. SIPRI Yearbook: Armaments, Disarmament and International Security

.

5. Determine similarities and differences

. Compare the different approaches, bearing in mind cultural differenc es and socio

- economic factors.

a. Ask how does the rule/institution really operate in practice?

208
Comparative Lawb. Are the reasons historical, pragmatic, or cultural ? Are they based on religious beliefs, economic practices or certain trade practices, etc?

6. Explain simi larities and differences . I ncludes an analysis of the rationale behind the system’s approach to resolving the legal issues being studied

. Analyze the legal principles in terms of their intrinsic meaning rather than according to any Western standards.

a. Historical Background

. Consider the cultural rather than the literal meaning of terms/phrases/concepts

.

b. Jurisprudential Basis

. What purpose does the rule fulfill? What principle, if any, does it support or apply? What practical effects might it have on the parties involved?

c. Evolutive (i.e., evolution of legal approaches).

7. Evaluate the results

. What are the key cases and legislation ? What does the future development of this area of law hold for the jurisdiction?

a. The comparatist is NOT seeki ng to be judgmental about legal systems in

the sense of whether he or she believes them to be “better” or “worse” than any other given system. Rather, the comparatist is seeking to evaluate the efficacy of a given solution or approach to a legal problem i n terms of that particular jurisdiction’s cultural, economic, political and legal background.

b. Given a set of priorities, the task is to assess the effectiveness of a solution in terms of achieving those aims and objectives.

C. Comparative Law Pitfalls a nd Perils.

1. Pitfall/Peril #1: Cultural differences between legal systems

.

a. The same legal ideas and institutions crop up in many different and diverse jurisdictions.

b. Law can survive without any close connection to any particular people, period

, or p lace (e.g., Roman law survived, despite radical change in circumstances; Civil law tradition subsists in countries as culturally and geographically diverse as Germany and Paraguay).

209
Comparative Lawc. B ut – every legal system is the product of its history and, very often, its political fortunes.

d. You have to look at the “values and attitudes” which bind the system together and which determine the place of the legal system in the culture of the society as a whole.

i. What kind of training and habits do lawyers and judges have?

ii. What do people think of law?

iii. Do groups or individuals willingly go in to court?

iv. For what purposes do people turn to lawyers?

v. For what purpose do people make use of intermediaries?

vi. Is there respect for law, government

, and traditio n?

vii. What is the relationship between class structure and the use or non

use of legal institutions?

viii. What informal social controls exist in addition to or in place of

formal ones?

ix. Who prefers which kinds of controls and why?

e. Note: The study of Asian law, Islamic law

, or Hindu law is probably going to require greater cultural attuning from U.S. military judge advocates than studying French or German law.

2. Pitfall/Peril # 2 : The tendency to impose one’s own (native) legal conceptions and expe ctations on the system(s) being compared

.

a. When studying non

- Western legal systems and cultures, Westerners must not approach or appraise these systems from their own Western viewpoints or judge them by European or American standards.

i. For example, som e Western lawyers concluded in the 1970 ’ s that

China ha d no legal system because it had no attorneys in the American or European sense, no independent judiciary, no codes

, and no system of legal education. But that is like the Western visitor

210
Comparative Lawwho assumed that there was no “proper” music played in China

because he did not see Western instruments in the Chinese concert

hall he visited.

ii. Had the scholars in the 70 ’ s looked for “functional equivalents of legal terms and concepts” and asked by which institut ions and which methods are the four “law jobs” being performed, they would have concluded that there is a Chinese legal system, albeit a unique system that didn’t fit into Western conceptions of law or legal

systems.

3. Pitfall/Peril # 3 : The difficulties of “comparability

. ” The military judge

advocate needs to be sensitive to the fact that it is difficult to “compare” legal systems that are at different points in their evolution. Without a baseline of similarities there can be misunderstandings.

4. Pitfa ll/Peril # 4 : The desire to see a common legal pattern in legal systems

.

a. Do NOT assume that there has been a general or similar pattern of legal development.

b. Such an assumption may obscure the discovery of the actual development of the legal system b eing studied.

5. Pitfall/Peril # 5 : Danger of exclusion and ignorance of extra

- legal rules

.

a. Do n o t ignore informal customs and practices which operate outside strict

law

.

b. Do n o t ignore various non

- legal phenomena which ultimately influence

the state of the law

. Obviously this includes revolutions, coup d’états

, and

wars , b ut also, radical devaluations of currency, radical changes in government economic and legal policy, widespread unemployment, technological change, nationalistic fervor, and the gain ing of independence.

c. Historical events in education, industry

, and commerce

.

d. The signing of international treaties that result in the integration of laws that unite the particular system with others, with the inevitable effects on legislation, case l aw, and even the everyday practice of law (e.g., European Union law)

.

211
Comparative Law6. Pitfall/Peril # 6 : Linguistic and terminological problems

.

a. The greatest difficulty and danger of comparative law

.

b. Physicians, chemists, mathematicians

, and musicians have a comm on vocabulary...but legal terminology is fraught with linguistic traps and potential minefields of misunderstanding.

c. Even in English speaking countries, the same word or phrase may have different meanings. A legal example in the common law system is star e decisis (“let the decision stand”). American and English systems each have adopted this doctrine of precedent. But in America it has never acquired the formalistic authority that it has in England. This is due to our differences in judicial and politi cal structure and hierarchy, the great volume of decisions in America, the conflicting precedents in different jurisdictions, etc.

d. There are even more difficulties in translating “alien” legal concepts, since

an authentic translation often demands more than mere linguistic accuracy. For a translation of a legal term to be meaningful, intimate knowledge is required both of the system being translated as well as of the native

system.



### V. C OMMON 

### L AW 

### T RADITION

A. Common Law has i ts origins only in 1066 with the Battle of Hastings and subsequent Norman Conquest

.

B. Common L aw characteristics.

1. Law created and molded by judges : Although legislation is binding, until it has been judicially interpreted, laws are sometimes believed to lack the authority which arises with judicial sanctification. Legislation gains greater respect, and perhaps authority, when judicially interpreted.

2. Authority to find legislation invalid or interpret legislation.

3. Lengthy, multiple judicial opinio ns, many of which are published.

4. Gradual development/”gap

- filling” of the law : judicial view that no system possesses a written law governing all conceivable disputes, therefore judges must fill the gaps by creating new law.

212
Comparative LawC. Sources of Law

.

1. Legis lation is paramount, but j udicial precedent is fabric of common law

.

2. Hierarchy of courts , with lengthy published opinions.

a. But “holding of case” vs. “mere obiter dicta

. ”

b. Distinguishing precedent that otherwise seems on point

.

3. Judicial Independe nce (some lifetime tenure)

.

4. Goals: certainty, but also flexibility

.

5. Criminal and Civil Trials, including j ury trials (typical in U.S., not in England)

.



### VI. C IVIL 

### L AW 

### T RADITION

A. Background: predominant system worldwide.

1. Spread throughout Western Europe via continental universities as an academic system of law.

2. Spread throughout Central and South America, and parts of Asia and Africa

, due to colonialism.

a. The French codification occurred at the beginning of the in dustrial revolution, and the German codification towards the end. Both occurred during the era of colonialism

, and contributed to the imposition of the civil law tradition throughout much of the world. As a result, not only are there a significant number of civil law systems in the world, there are an extremely large number of mixed systems that have components of the

civil law tradition.

b. As a percentage of the world population, civil law systems apply to four times more people than common law systems, and twice as many States (88 Civil Law vs. 42 Common Law States).

B. History

.

1. Origins in the Law of the Roman Empire with publication of the XII Tables of

Rome in 450 B.C.

.

213
Comparative Law2. In approximately 534 A.D. , Emperor Justinian sought to rescue Roman law

from centuries of deterioration by codifying and simplifying what had grown into an enormous and unwieldy body of law filled with conflict. Emperor Justinian ordered the preparation of Corpus Juris Civilis (CJC) , which was a compilation of the multitude of tr eatises and commentaries. Once the CJC was compiled, Emperor Justinian s ought to abolish all prior law except that included

in CJC ; he forbade study of the earlier works and even went so far as having many earlier treatises burned.

3. Roman Law was carrie d into all corners of the Roman Empire, but it was an imposed system and did not take root in most of Europe

— it fell into disuse with many cultures reverting back to customary systems after the collapse of the Empire. That isn’t to say that there were no remnants of Roman law

, and crude variants were adopted by some cultures.

4. Canon Law (Middle Ages): Throughout the middle ages the Canon Law system of the Christian Church remained and evolved replacing some aspects of the government that had collapsed. The Church assumed jurisdiction over certain aspects of family, property, and criminal law

, and the Church formed its own

tribunals. Canon Law

, although Christian, had borrowed heavily from Roman

Law

, and was influenced by the CJC , but over the centuries after the fall of the Empire, it evolved its own sets of rules and procedures that would influence development of the civil law tradition upon the re

- emergence of Roman Law in

the 10 th Century.

5. Commercial Law , developed by Merchant Guilds and Trade Ass ociations: As Europe settled politically, renewed travel and commerce helped foster a desire for predictability and efficient methods of dispute resolution. Scholars began to look once again at the CJC . A need arose for a body of law to govern business

transactions which the ancient Roman laws did not address well. Merchant guilds and trade associations developed their own rules and tribunals. These procedures became widely practiced and accepted and were deemed “customary

law.”

6. 10 th Century Revival of Roman Law : With the continued rise of the nation

- s tate in Europe and the re

- emergence and spread of Roman Law throughout Europe’s centers of learning, Roman Law once again took root

, but added elements from Canon and Commercial Law. Legal Scholars, s uch as St. Thomas Aquinas in

the 13 th Century

, wrote treatises and commentaries that were widely circulated and studied. As the influence of the reemerging law took effect

, with allowance

214
Comparative Lawfor some local or customary augmentation, the concept of “ Jus Commu ne ” 2 was born.

C. Competing Modern Traditions:

1. The French Revolutionary Tradition : as a result of the French Revolution and Napoleonic Rule, the French Tradition was codified and established in the

French Civil Code of 1804.

a. The characteristics of t his codification were recognition of a “Separation

of Powers

, ” “Natural Rights

, ” and “Glorification of the State.”

b. The code rejected feudalism and claimed the areas of property, contract, and family law for the citizen.

c. The Code was designed to be un derstandable by the average citizen.

2. The German Scientific Tradition : The German Civil Code of 1896 was based

on a scientific reconstruction of the legal system.

a. The underlying thought to the German system was that by studying legal

scholars in thei r historical context, a set of historically verified and essential principles could be discovered. That is, legal scientists can discover inherent principles and relationships just as the physical scientist discovers natural laws from the study of physica l data.

b. The Code was prepared for those trained in the law, and thus was responsive to the needs of lawyers, not the average citizen.

c. Similar to the French, the German system retained a sharp separation of

powers.

d. The German Civil Law system is di stinguished from the French System,

due to customary influences on the early German legal scholars who wanted to integrat e local custom into the Roman “J us Commune.”

D. Civil Law Jurisdictions in General

.

1. Secular in nature (post

- 1789)

.

2 That is

, the common law ( commune jus ) of all mankind.

215
Comparative Lawa. Law no longer considered of divine origin

.

b. Ultimate lawmaking power lay in the State

.

c. Heavily influenced by 19 th Century Liberalism

.

i. Individual autonomy

.

ii. Freedom of contract

.

iii. Respect for private property

.

2. Supremacy of the State

.

a. Only statutes ena cted by the legislature are law.

b. Books and articles written by scholars have a c entral place in legal

traditions

i. Trace importance back to Roman juris consuls

ii. Germany used to send difficult legal issues to law school faculties for discussion, deba te

, and ultimate decision

iii. Contrast with Common Law States

.

A. Common Law: Know the names and writings of great jurists from the past

B. Civil Law: Know the names and writings of great legal

scholars of the past

3. Elements of the Law

.

a. Statutes en acted by a legislature

. Five Basic Codes typically found in civil law jurisdictions

i. Civil Code

.

ii. Commercial Code

.

216
Comparative Lawiii. Code of Civil Procedure

.

iv. Penal Code

.

v. Code of Criminal Procedure

.

b. Legislation promulgated by the executive , by a uthority delegated from the legislature

.

c. Custom

.

4. Role of the Judge

.

a. Apply the law

.

b. Traditionally no judicial review of acts of the legislature. However, there

is a new trend toward Constitutionalism

.

i. Created special constitutional courts. Not part of the judicial system. Couldn’t give judges authority to overrule the legislature

ii. France: Constitutional Council

c. Judges viewed as functionaries , c ivil servants , and “Expert clerk s ”: Presented with a fact pattern; couple it with the appropriate l egislative provision

.

5. The Role of Lawyers

.

a. Judge

.

b. Public Prosecutor

.

i. Prosecutor in criminal actions

.

ii. Represent public interest in judicial proceedings between private

individuals

.

c. Government lawyer

.

d. Advocate

.

217
Comparative Lawe. Notary

.

i. Drafts lega l instruments (wills, corporate charters)

.

ii. Authenticates instruments

.

iii. Public records repository

.

f. Law

- professor/Scholar . C ommon law is the law of judges; but civil law is the law of the professors

.

6. Interpretation of Statutes

.

a. Theoreticall y: legislature only

.

b. French system:

i. Created a new governmental body

.

ii. Not a part of the judiciary

.

iii. Power to quash incorrect interpretations by the courts

.

iv. Maintained separation of powers

.

A. Delegated authority from legislature

.

B. Uphol ds legislative supremacy

.

v. Evolved into a Supreme Court

.

A. Supreme Court of Cassation

.

B. Quash and “instruct” lower courts

. Reviews issues of law only,

not issues of fact.

c. Interpretation of Unclear Provisions

. “In interpreting the statute, no othe r meaning can be attributed to it than that made clear by the actual significance of the words according to the connections between them, and by the intention of the legislature.”

218
Comparative Lawd. Civil Law interpretation in the absence of specific law: “If a controver sy cannot be decided by a precise provision, consideration is given to provisions that regulate similar cases or analogous matters; if the case still remains in doubt, it is decided according to general principles of the legal

order to the state.”

7. Legal Classifications

.

a. Public law

.

b. Private law

.

i. Civil Law

. Persons, the family, inheritance, property

, and obligations

.

ii. Commercial Law

. In many Civil Law jurisdictions, commercial law has remained its own distinct legal system

.

8. Jurisdiction of Civil Law Courts

.

a. “Ordinary” courts

.

b. Commercial courts

.

c. Administrative Courts (e.g., Council of State (France) ).

9. Civil Procedure

.

a. Trial

. Isolated hearings dominated by w ritten communications

.

b. Hearing judge vs. Adjudicator

.

c. Attorney’s fees based on an o fficial schedule

.

d. Appeal

.

e. Decisions

.

10. Criminal Procedure

.

a. Typically three phases:

219
Comparative Lawi. Investigative , which the p ublic prosecutor directs

.

ii. Examining

.

A. Controlled by the examining judge

.

B. Primarily written record, prepar ed by the examining judge.

C. Not public

.

D. Examining judge determines :

1. Crime committed?

2. Accused is perpetrator? If yes, trial.

iii. Trial

.

A. Presumption of Innocence

.

B. Jury Trial

.

1. Range of offenses depends on the code.

2. Size

.

3. Unanimity

.



### VII. T RIBAL O R 

### C USTOMARY 

### T RADITION

A. The Tribal or Customary legal tradition is a relatively new concept, although it describes the oldest of legal traditions. Interestingly, in spite of a mult itude of geographic and cultural variables, it is within the customary tradition that scholars

have found the most constants.

1. Indigenous systems

. All of the legal traditions have their roots in various

customary systems

, and were influenced by them

.

2. Modern View: still influential on legal systems in many areas of the world, including many of our modern concepts ; typically found in family and property

law.

220
Comparative Law3. Systems which are largely customary in nature are still active in almost every part of the w orld. Representative systems can be found throughout the South Pacific, Asia, Africa, Australia, and even in the United States on Native

American Reservations

— al though it must be conceded that they are not purely

customary

. In fact, i t is very difficult t o find a pure customary legal system today

.

B. Characteristics:

1. Oral (vs. written) tradition

.

2. Legal system is seen as an integral to “way of life” rather than a distinct system.

3. Council of Elders / Advisors, whose function is to interpret and deci de issues within the legal system, even if the group has a Chief or King.

4. Tendency to informal dispute resolution, even in criminal cases, and decision is based on the best interests of the community.

5. Family law characterized by mutual consent and in formality

.

6. Lacking law of obligation (e.g.

, no contracts or torts)

, when issues arise, they are dealt with relatively informally by the community or council of elders.

7. Property Law: the basic ideas are to keep large families together since many

memb ers were necessary for the many tasks of daily life

, and concepts of property look more towards communal use rather than individual ownership. Customary concepts of property are getting a fresh look as models for environmental laws and regulations in more modern traditions and systems.



### VIII. T ALMUDIC 

### T RADITION

A. Talmudic Law is one of the oldest remaining legal traditions (along with the Hindu Tradition).

1. Written Torah: revelations given to Moses, which were recorded as the first five books (Genesis, Exodus, Leviticus, Numbers, and Deuteronomy) of the Hebrew Bible, approximately 1400 B.C.

.

a. There is an all encompassing concept of “Torah” or revelation that

contributes to Talmudic Law.

221
Comparative Lawb. The “Written Torah” generated commen t and explanation

, and the oral tradition of commentary became an expansion on the Torah called the

“Oral Torah.”

2. Mishnah: Oral Torah, approximately 70 B.C. through 200 A.D.

.

a. Oral tradition which generated a written record compiled over time.

b. The Mishnah itself generated comment

, and this second set of expositions was recorded on two occasions in the Jerusalem and Babylonian Talmuds.

3. Jerusalem Talmud: approximately 400

– 500 A.D.

.

4. Babylonian Talmud: approximately 60 0

– 700 A.D.

.

5. There are s ome additional portions of the Talmud found in the Tosefta and Midrashe Halakhah as well. Consider that at the time of the writing of the two Talmud, almost two millennia of legal commentary had passed.

6. Commentaries and Restatements: During the middle ages, commentaries continued to be promulgated

, most notably that of Maimonides (a

. k

. a

. Rabbi Moses Ben Maimon) which is still considered one of the most influential.

a. Maimonides (12 th Century) was a scholar, physician, and philosopher whose works (lega l, religious, medical, and scientific) were influential throughout the Jewish and Arab communities as well as on later European culture and traditions as well. For example, Maimonides had a great influence on St. Thomas Aquinas.

b. Responsa: written advi ce regarding application of Talmudic Law.

B. Influential on later traditions (e .g.
, Greek, Roman and Islamic).

C. General sense of obligation to God and to act towards others in accordance with

God’s will.



### IX. H INDU 

### T RADITION

A. One of the oldest remaining legal traditions. Hinduism is also a religion, a way of life, which includes much outside of the law (e.g.

, how to engage in politics).

1. Four books of Veda ( = to see), approximately 2000 B.C.

.

222
Comparative Lawa. Revelations essential to Hindu w ay of life

.

b. Brahmans taught Vedas from memory, using Sutras , which were chains of

verbal maxims

.

2. Sastras = texts/poetry, including law and religious observance (200 B.C.

– 4 00

A.D. )

.

3. Commentaries and Digests (700

- 1700 A.D. )

.

B. Private/religious works of law without judicial or legislative founda tion, applicable to

all Hindus w orldwide (e.g.

, India, Pakistan, Burma, Singapore, Malaysia, Tanzania, Uganda , and Kenya)

.

1. Complex, hierarchical structure of appeals

.

2. Much Hindu teaching outside law books about how to live a life, e.g.

, politics (arthasutras/arthasastras) and pleasure ( kamasutras / kamasastras )

.

C. Dharma infuses Hindu law

.

1. Dharma = specific, individual sense of obligation to society, to do what is just

and what is right (righteous ness); it also assigns us a place in life (Varna =

caste ) and specific obligations in course of living that life

.

a. The word dharma (Sanskrit; " " in the Devanagari script) or dhamma
(Pali) is used in most or all philosophies and religions of Indian or igin, Dharmic faiths, namely Hinduism (Sanatana Dharma), Buddhism,

Jainism

, and Sikhism. It occurs first in the Vedas, in its oldest form as dharman. It is difficult to provide a single concise de finition for

“ Dharma ” ; the word has a complex history and an equivalently complex set of meanings.

2. One’s Dharma and caste are dictated by one’s past Karma (good or bad,

incl uding past lives)

.

a. In law, there is no 5 th class of untouchables, though popular conceptions of

untouchables translate into Sudras

.

b. Wi th the passage of time

, caste acquired significance as indicative of social status arising by virtue of birth only

.

223
Comparative Lawc. The current Indian Constitution prohibits discrimination on the basis of

caste , which are made up of Brahmans (teachers), Kshatriya (warr iors), Vaishyas (traders), and Sudras (servants)

.

3. Failure to comply with Dharma results in accumulating bad Karma, which must be repaid in future lives (e.g.

, lower caste)

.



### X. I SLAMIC 

### T RADITION

A. Background

.

1. Roots in pre

- Is lamic Arab society

.

2. Goal was not to establish a new legal order , but to teach people what to do in

life.

B. Definitions

.

1. Islam: “Submission or surrender to Allah’s will.”

2. Qadi: Islamic Judge

.

3. Sharia: “The path to follow God’s Law.”

4. Fiqh: The science of understanding and interpreting legal rulings (Islamic jurisprudence)

.

C. General Principles

.

1. No separation of church and State

.

2. Most Muslim States have a bifurcated legal system:

a. Civil laws applicable to Muslims and non

- Muslims

.

b

. Sharia applicable to Muslims only

.

D. The role of Judges

.

1. For serious crimes

, there are distinct punishments

.

224
Comparative Law2. For less serious crimes

, judges are free to create new options and ideas to

address the issue

3. Not bound by precedent and rules inherent in the Common Law system

. More

freedom/latitude than C ivil L aw judges

.

E. Sharia Law

.

1. Holistic approach to guide the individual in most daily matters

.

2. Controls all public and private behavior including p ersonal hygiene, diet, sexual conduct, child rearing, prayers, fasting, charity

, and other religious matters

.

3. Elements of Sharia Law

.

a. The Qur’an

. Primary source. No appeal

.

b. Sunna

.

i. Teachings of the Prophet Mohammed not explicitly found in the Qur’an

.

ii. Sunna is recorded in the hadith

.

iii. Isnad is the chain of reporters who produced the hadith

.

c. Ijma

. Consensus of religious scholars (Ulamas) on su bjects not found explicitly in t he Qur’an or the Sunna.

d. Qiyas . N ew cases or case law (application by analogy)

.

e. Other written works

.

i. The New Testament

.

ii. Legal discourses from Civil and Common Law jurisdictions

.

4. Classification of Hadith

.

a. According to the reference to a particular authority

225
Comparative Lawb. According to the links of Isnad

— in terrupted or uninterrupted

.

c. According to the n umber of reporters involved in each stage of Isnad

.

d. According to the nature of the text and Isnad

.

e. Overall Classifications of Hadith :

i. Sahih: Sound . O ne cannot question the rulings of the Qur’an and

sahih hadith

ii. Hasan: Good

. The source is k nown and its reporters are unambiguous

.

iii. Da’if: Weak

. Not to the level of hasan, usually because of a discontinuity in the Isnad, or o ne of the reporters is unreliable

.

iv. Maudu’: Fabricated

. A hadith whose text goes against the

established norms of the Prophet’s sayings, or i ts reporter is a liar

.

5. Crimes

.

a. Had d Crimes

. Crimes against God’s Law , the m ost serious of all crimes

.

i. Found by an exact reference in The Qur’an

.

A. A Specific act

.

B. A Specific punishment

.

ii. No plea bargaining

.

ii i. No reduced punishment

.

iv. Examples: (* Specific punishment listed in the Qur’an.)

.

A. *Murder

.

B. *Apostasy from Islam

. Making war upon Allah and his

messengers

.

226
Comparative LawC. *Theft

.

D. *Adultery

.

E. Defamation

. False accusation of Adultery or Fornication

.

F. Robbery

.

G. Alcohol

- drinking

.

v. Level of Proof : Confession, or a m inimum of two witnesses

.

vi. If any doubt; treat as a Ta’zir crime

.

vii. Mitigation

.

b. Ta’zir Crimes

.

i. Crimes against society

.

ii. Ta’zir crimes can be punished if they harm the societa l interest

.

iii. The assumption is that a greater “evil” will be prevented in the future if you punish the offender now

.

iv. Historically not written down or codified ; n ow set by parliament in some countries (Egypt)

.

v. Absent codification, judges are free to choose punishment they think will help the offender

.

vi. Examples of crimes:

A. Bribery

.

B. Selling defective products

.

C. Treason

.

D. Usury

.

227
Comparative LawE. Selling pornography

.

vii. Examples of punishments :

A. Counseling

.

B. Fines

.

C. Public or private censure

.

D

. Seizure of property

.

E. Confinement

.

F. Flogging

.

c. Qisas Crimes

.

i. A crime of retaliation

.

ii. Victim (or victim’s family) has a right to seek retribution or

retaliation

.

iii. Examples of crimes:

A. Murder ( Premeditated and non

- premeditated)

.

B. Preme ditated offense against human life, short of murder

.

C. Murder by error

.

D. Offenses by error against humanity, short of murder

.

iv. Punishments

. Sought, in most cases, by the victims family

A. Diya ( Blood money)

.

B. Public execution

1. Traditionally carr ied out by the victim’s family

.

228
Comparative Law2. Now carried out by the government

.

C. Pardon

.

6. Criminal Cases

.

a. Although all ostensibly are based on the Qur’an, handling of cases can vary between different schools of thought

.

b. Sunni Legal Schools :

i. Hanafi

.

A. T he oldest school of law

.

B. Founded in Iraq around 767

.

C. The most flexible of the four schools

.

D. Heavy emphasis on analogy

.

E. Turkey, Afghanistan, India

, and China

.

ii. Maliki

.

A. Founded in Medina around 795

.

B. Emphasis on the relevance and authorit y of traditions of the Prophet and first Muslim community at Medina

.

C. Incorporated local customs and traditions into Sharia

.

D. North Africa, Upper Egypt

, and the Sudan

.

iii. Shafi’i

.

A. Founded around 810.

B. Apply prophetic traditions; yet apply a rigo rous rational

criticism to them

.

229
Comparative Law1. Verify every link in the chain of transmission

.

2. Closely scrutinize the transmitters/reporters

.

C. Lower Egypt, southern India, Indonesia

, and Malaysia

.

iv. Hanbali

.

A. Strictly the Qur’an and verifiable tradition of t he Prophet

.

B. Rejected both reason and community consensus as the bases for legal rulings

.

C. Saudi Arabia (Wahhabis)

.



### XI. A SIAN 

### T RADITION

A. Overview

.

1. Asia has historically included other legal traditions ( customary , Talm udic, Islamic, Hindu), and is now picking and choosing from civil and common law

sources.

2. Some authors claim the Asian Tradition to be a misnomer today, due to

influence of colonization and modernization. 3

a. Common Law (UK colonies): India, Malaysia, Singapore , and Brunei

.

b. Civil Law (French and Dutch colonies): Indochina (Burma, Cambodia, Laos, Malaysia, Vietnam ), and Indonesia

.

c. Other Asian States chose to adopt systems based on Civil Law: China, Japan , and Thailand

.

d. U.S. law also had influe nce on Philippines and Japan, due to pre

- and post

World War II occupation

.

3 Margaret Fordham, Compara tive Legal Traditions

– Introducing the Common Law to Civil Lawyers in

Asia (2006) ; H. Patrick Glenn, Legal Traditions of the World 304, 306 ( 2000 )

.

230
Comparative LawB. Characteristics

1. Co nfucianism, Buddhism, Shintoism, and Taoism all have dim views of formal

law

.

2. Important issues regulated more by Persuasive, Informal Traditions

, and Soc ial Harmony ( Li ) than by Obligatory, Formal Laws

, and Sanctions ( Fa )

.

3. Fa focuses on penal and administrative law

.

4. Li focuses on everything else (including “non

- legal” issues) . B elief that business relations are best not reduced to writing and should be seen as ongoing, harmonious relationships of mutual advantage . For example, a n exemplary person seeks harmony vs. agreement on immediate detail; a small person does the opposite

5. Emphasis on Informal Dispute Resolution

.

6. Legal Maxims:

a. “Win a la wsuit and lose a friend

. ”

b. “The more laws are promulgated, the greater the number of thieves

. ”

c. “Litigation ultimately ends in disaster

. ”



### XII. S OCIALIST 

### T RADITION

A. Overview

. Very few comparative law texts still refe r to the “socialist tradition,”

which has all but died. 4

B. Fairly recent tradition, that mostly dissolved with disintegration of legal order of the

former Soviet Union

.

C. Only survives in partial form in communist regimes (Cuba, North Korea, and Vietnam)

.

D. Public law subsumes traditionally private law fields (e.g.

, bankruptcy, contracts, property, commercial law, torts)

.

4 Id.

231
Comparative LawE. Intense reliance on formal law, enforced by the communist party , e .g.
, judicial decisions of “independent” judges are subject to pa rty control and revision

.



### XIII. C OMBINED 

### S YSTEMS

A. Many countries have combined, or mixed, systems. For example, UK has a Common Law system, as do its former colonies, including the U.S., Canada, and Australia. But

the U.S. state of Louisiana is a blend of Civil Law and Common Law, as is the Canadian province of Quebec, both due to th e influence of French Civil Law. Most

of Eura sia and Central and South America are Civil Law countries, but Guyana is a

blend of Common Law and Civil Law due to British rul e from 1796 until 1966. Much of the rest of the world is a blend of various legal traditions. A lmost all of the Islamic legal systems are a blend of Islamic and either Civil Law, Common Law, or

Tribal Law.

B. Two main categories:

1. Mixture of civil law and common law systems (e.g., Botswana, Guyana, Lesotho, Namibia, the Philippines, Quebec, Scotland, South Africa, Sri Lanka, Swaziland, and Zimbabwe . Consider also the European Union).

2. Mixture of civil law and religious legal systems ( Algeria, Egypt, Indonesia, Iran, Iraq, and Syria ).



### F OR 

### F URTHER 

### R EADING

A. W ERNER M ENSKI

, C OMPARATIVE L AW IN A G LOBAL C ONTEXT : T HE L EGAL S YSTEMS

OF A SIA AND A FRICA (2 nd ed., 2006).

B. H. P ATRICK G LENN

, L EGAL T RADITIONS OF THE W ORLD : S USTAINABLE D IVERSITY IN
L AW (2 nd ed., 2004).

C. D ANIEL C.K. C HOW

, T HE L EGAL S YSTEM OF THE P EOPLE ’ S R EPUBLIC OF C HINA (2003).

D. V IVIAN G. C URRAN

, C OMPARATIVE L AW : A N I NTRODUCTION (2002).

E. S TEFAN A LBRECHT A. R IESENFELD

, W ALTER J. P AKTER

, C OMPARATIVE L AW
C ASEBOOK (2001).

F. M ARY A NN G LENDON

, M ICHAEL W. G ORDON

, AND P AOLO G. C AROZZA

, C OMPARATIVE L EGAL T RADITION ( 2 nd ed

., 1999 )

.

232
Comparative LawG

. D ALE F. E ICKELMAN AND J AMES P ISCATORI

, M USLIM P OLITICS (1996).

H. J.H. M ERRYMAN

, T HE C IVIL L AW T RADITION : A N I NTRODUCTION TO THE L EGAL
S YSTEMS OF W ESTERN E UROPE AND L ATIN A MERICA ( 2 nd ed

., 1985 )

.

I. M. C HERIF B ASSIOUNI

, T HE I SLAMIC C RIMINAL J USTICE S YSTEM (1982).

J

. C ENTER FOR L AW AND M ILITARY O PERATIONS

, R ULE OF L AW H ANDBOOK : A

P RACTITIONER ’ S G UIDE FOR J UDGE A DVOCATES , latest edition.

233
Comparative Law234
Comparative Law

## I NDEX

.
.50 caliber machine guns

................................ ....... 145



### A

Additional Protocol I

................................ ............... 38

Additional Protocol II

................................ .. 21, 22, 38

Additional Protocol III

................................ ............ 59

African Human Rights System

.............................. 200

Al

- Qaida

................................ ............................ 70, 72

Anticipatory Self

- Defense

................................ ....... 33

Article 5 Tribunal

................................ .................... 76

Asian Legal Traditio n

................................ ............ 230

Assassination

................................ ......................... 161

Auxiliary personnel

................................ ................. 60



### B

Belligerent

Privileged

................................ ........................... 96

Unprivileged

................................ ...................... 97

Biological weapons

................................ ............... 154

Booby traps

................................ ............................ 148



### C

CAT

................................ ................................ ....... 193

Chemical weapons

................................ ................. 151

Chemical Weapons Convention

............................ 151

Civil Law Tradition

................................ ............... 213

Civilian aircraft crews

................................ ............. 74

Civilians

De fined

................................ .............................. 95

General protections

................................ .......... 120

Internment

................................ ........................ 127

Protected Person defined

................................ . 122

Protected Persons in alien territory

.................. 124

Protected Persons in occupied territory

........... 125

Protected Persons treatment

............................. 123

Special Needs

................................ ................... 121

Clausewitz

................................ ............................... 11

Claymore mines

................................ ..................... 147

Cluster bom bs

................................ ........................ 149

Code of Conduct

................................ ...................... 84 Collateral damage

................................ .................. 142

Collective Self

- Defense

................................ ........... 32

Combatants

................................ ...................... 95, 134

Unlawful

................................ ............................ 96

Combined Effects Munitions

................................ . 149

Common Article 2

................................ ....... 20, 39, 69

Common Article 3

................................ ....... 21, 39, 70

Common Law Tradition

................................ ........ 212

Comparative Law methodology

............................ 206

Contra ctors

................................ ...................... 74, 102

Convention Against Torture

................................ .. 193

Cultural Property

................................ ................... 139

Customary international law

Defined

................................ ................................ 3

Persistent objector

................................ ................ 3

Customary Legal System

................................ ....... 220



### D

Defended places

................................ .................... 137

Derogations

................................ ........................... 198

Direct Part in Hostilities

................................ .......... 97

Direct Part test

................................ ................... 97

Functionality test

................................ ............... 98

ICRC Interpretive Guidance

.............................. 99

Discrimination

................................ ....................... 141

Distinction

................................ ............................. 141

Dunant, Henry

................................ ................... 12, 37

Duress

................................ ................................ .... 176



### E

E.O. 11850

................................ ..................... 153, 154

Emblems

................................ ................................ .. 59

Espionage

................................ .............................. 161

European Human Rights System

........................... 199

Exploding rounds

................................ .................. 144



### F

Flame

- throwers

................................ ...................... 150

Fragmentation weapons

................................ ......... 146

Fra ngible ammunition

................................ ........... 145

235
Comparative Law

### G

Geneva Tradition

................................ ............... 18, 94

Genocide

................................ ................................ 171

Genocide Convention

................................ ............ 193

Grave breaches

................................ ....................... 169



### H

Hague Tradition

................................ ................. 17, 93

Head of State Immunity

................................ ......... 176

Herbicides

................................ .............................. 154

Hindu Tradition

................................ ..................... 222

Hollow

- point ammunition

................................ ...... 145

Hors de combat

................................ ...................... 135

Hospital ships

................................ .......................... 58

Hospital/Safety Zones

................................ ............ 121

Hospitals

................................ ................................ .. 52

Human Rights Committee

................................ ..... 199

Human Rights Council

................................ .......... 199

Human Rights Law

................................ ................ 187



### I

ICC

................................ ................................ 165, 171

ICCPR

................................ ................................ .... 192

ICESCR

................................ ................................ . 193

ICTR

................................ ................................ ...... 175

ICTY

................................ ................................ ...... 173

Incendiaries

................................ ............................ 150

Inter

- American Rights System

............................... 199

International Covenant on Civil and Poli tical Rights

................................ ............................... 192

International Covenant on Economic, Social, and Cultural Rights

................................ .......... 193

International Criminal Court

.......................... 165, 171

International Criminal Tribunal for Rwanda

......... 175

International Criminal Tribunal for the Former Yugoslavia

................................ ........... 173

International law

Define d

................................ ................................ 1

Sources

................................ ................................ 2

International Military Tribunals

............................. 173

Internment of Civilians

................................ .......... 127

Islamic Tradition

................................ .................... 224 

### J

Journalists

................................ ........................ 74, 137

Jus ad bellum

................................ ............................ 8

Jus cogens

................................ ................................ . 4

Jus in bello

................................ ................................ 8

Just War

................................ ................................ .... 9



### K

Kellogg

- Briand Pact

................................ ................ 14



### L

Lack of mental responsibility

................................ 176

Landmines

................................ ............................. 146

Las ers

................................ ................................ ..... 150

League of Nations

................................ .................... 14

Legal review of weapons

................................ ....... 144

Levée en masse

................................ ........................ 74

Lieber Code

................................ ............................. 91



### M

M

- 16 ammunition

................................ .................. 145

Matchking ammunition

................................ .......... 145

Medical material

................................ ...................... 54

Medical personnel

Auxiliaries

................................ .......................... 50

Exclusively engaged

................................ .......... 48

Repatriation

................................ ........................ 49

Medical units

Fixed

................................ .......................... 52, 138

Mobile

................................ ........................ 52, 138

Self

- Defense

................................ ....................... 52

Medical vehicles

Aircraft

................................ ....................... 55, 139

Ambulances

................................ ................ 54, 139

Mercenaries

................................ ............................. 76

Merchant marines

................................ .................... 74

Military Commissions

................................ ........... 182

Military necessity

................................ ................... 131

Military objective

................................ ................... 133

Militias

................................ ................................ ..... 73



### N

Napalm

................................ ................................ ... 150

236

IndexNatural environment

................................ .............. 138

Neutralized Zone s

................................ .................. 120

Non

- combatants

................................ ..................... 135

Nuclear weapons

................................ ................... 155

Nuremberg Tribunals

................................ ............. 173



### O

Objects indispensable to the population

................ 140

Occupation

Authority of the Occupant

............................... 109

Defined

................................ ............................ 107

Proclamation

................................ .................... 107

Security of the Occupant

................................ .. 111

Termination

................................ ..................... 109

Treatment of Property

................................ ...... 115

Opinio juris

................................ ................................ 3

Oslo Treaty

................................ ............................ 150

Ottawa Treaty

................................ ........................ 148



### P

Parachutists

................................ ............................ 136

Perfidy

................................ ................................ ... 158

Persistent objector

................................ ..................... 3

Personnel of Aid Societies

................................ ....... 51

Persons accompanying armed forces

....................... 74

POW

Civilian aircraft crews

................................ ........ 74

Contractors

................................ ......................... 74

Disciplinary punishment

................................ .... 85

Escape

................................ ................................ 86

Jour nalists

................................ .......................... 74

Judicial punishment

................................ ........... 86

Labor

................................ ................................ .. 84

Levée en masse

................................ .................. 74

Merchant marines

................................ .............. 74

Militia

................................ ................................ 73

Persons accompanying armed forces

................. 74

Photographing

................................ .................... 78

Property

................................ ............................. 79

Questioning

................................ ........................ 80

Repatriation

................................ ....................... 88

Representative

................................ .................... 84

Status

................................ ................................ . 69

Status in doubt

................................ ................... 76 Transfer

................................ .............................. 83

POW camp administration

................................ ...... 81

Privileged Belligerent

................................ .............. 96

Proportionality (in targeting)

................................ . 142

Protocol I, CCW

................................ .................... 146

Protocol II, CCW

................................ ........... 147, 148

Protocol III, CCW

................................ ................. 150

Protocol IV, CCW

................................ ................. 151

Protocol V, CCW

................................ .................. 150



### R

Red Crescent

................................ ............................ 59

Red Cross

................................ ................................ 59

Red Shield of David

................................ ................ 59

Regional Orga nizations

................................ ........... 29

Rendulic Rule

................................ ........................ 132

Reprisals

................................ ................................ 161

Retained Personnel

................................ .................. 49

Riot Control Agents

................................ ............... 152

Ruses

................................ ................................ ..... 155



### S

Saboteurs

................................ ................................ . 75

Self

- Defense

................................ ............................ 29

Against Non

- State actors

................................ ... 35

Necessity

................................ ............................ 31

Proportionality

................................ ................... 31

Self

- execution of treaties

................................ ....... 196

Shipwrecked

Defined

................................ .............................. 41

Duty to se arch for

................................ .............. 46

Treatment

................................ ......................... 136

Shotguns

................................ ................................ 145

Simple breaches

................................ ..................... 170

SIrUS Project

................................ ......................... 145

Sniper rifles

................................ ........................... 145

Socialist Legal Tradition

................................ ....... 231

Special Court for Sierra Leone

.............................. 175

Spies

................................ ................................ ........ 76

Spying

................................ ................................ .... 161

Statute of the Iraqi High Tribunal

.......................... 175

Superfluous Injury and Unnecessary

Su ffering Project

................................ .............. 145

Superior orders

................................ ...................... 176

237
Comparative LawSuspension of Fire agreements

................................ 46



### T

Taliban

................................ ............................... 70, 71

Talmudic Tradition

................................ ................ 221

Tracers

................................ ................................ ... 150

Treachery

................................ ............................... 158

Treaties

Declarations

................................ ..................... 195

Derogations

................................ ...................... 198

Reservations

................................ ................. 3, 194

Self

- execution

................................ .................. 196

Understandings

................................ ............ 3, 195

Triage

................................ ................................ ....... 44

Trib al Law Tradition

................................ .............. 220



### U

UN Charter

................................ .............................. 26

Article 2(4)

................................ ......................... 26

Article 51

................................ ........................... 29

Chapter VII

................................ ........................ 27

UN Peacekeeping

................................ ..................... 29

UN Security Council

................................ ................ 28

Undefended places

................................ ................. 138

Universal Declaration of Human Rights

................ 199

Unlawful combatants

................................ ............... 96

Unnecessary suffering

................................ ............ 143

Unprivileged Enemy Belligerent

............................. 97 Enemy colors

................................ ......................... 157

Enemy uniforms

................................ ..................... 156

Enemy equipment

................................ .................. 157



### W

War as Fact

................................ .............................. 11

War Crimes

Customary

................................ ........................ 168

Defenses

................................ ........................... 175

Defined

................................ ............................. 166

General Court

- Martial

................................ ...... 182

Geneva Conventions

................................ ........ 169

Prosecuting U.S. military

................................ . 179

War Crimes Act of 1996

................................ ........ 182

War on Terro rism

................................ .................... 71

War Powers Resolution

................................ ........... 25

Weapons, Legal review

................................ .......... 144

White phosphorous rounds

................................ .... 150

Works containing dangerous forces

....................... 140

Wounded and Sick

Abandoning

................................ ........................ 45

Civilians

................................ ............................. 42

Defined

................................ ............................... 40

Order of treatment

................................ .............. 43

Relief efforts

................................ ...................... 48

Searching for

................................ ...................... 45

Standard of care

................................ ................. 4 3

Treatment

................................ ........................... 41

238

IndexLAW OFWARDESKBOOK

TJAGLCS



# 2010

## — Introduction to Public International Law (p. 1)

— History of the Law of War (p. 5 )

— Framework of the Law of War (p. 1 7 )

— Legal Bases for the Use of Force (p. 2 5 )

— GC I: Wounded and Sick in the Field (p. 3 7 )

— GC III: Prisoners of War (p. 6 3 )

— GC IV: Civilians on the Battlefield (p. 91 )

— GC IV: Occupation and Post

- Conflict Governance (p. 10 7 )

— Means and Methods of Warfare (p. 1 31 )

— War Crimes and Command Responsibility (p. 1 63 )

— Human Rights (p. 18 7 )

— Comparative Law (p. 201 )

— Inde x (p. 2 35 )