INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT
 

THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER AND SCHOOL, U.S. ARMY
 

CHARLOTTESVILLE, VIRGINIA
 

LAW OF WAR DESKBOOK 

Authors 

LTC Jeff A. Bovarnick, JA, USA 

LtCol 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 Brian J. Bill, JAGC, USN 

Technical Support 

Ms. Terri Thorne 

January 2010 
PREFACE
 

This Law of War Deskbook is intended to replace, in a single bound volume, similar individual 

outlines that had been distributed as part of the Judge Advocate Officer Graduate and Basic 

Courses and the Operational Law of War Course. Together with the Operational Law Handbook 

and Law of War Documentary Supplement, these three volumes represent the range of 

international and operational law subjects taught to military judge advocates. These outlines, 

while extensive, make no pretence of comprehensively covering this complex area of law. Our 

audience is the beginning and intermediate level practitioner; our hope is that this material will 

provide a solid foundation upon which further study may be built. 

The proponent of this publication is the International and Operational Law Department, The 

Judge Advocate General’s Legal Center and School (TJAGLCS). Send comments and 

suggestions to TJAGLCS, International and Operational Law Department, 600 Massie Road, 

Charlottesville, VA 22903-1781. Our phone number is (434) 971-3370; our administrative 

assistant will connect you with the author for the particular chapter. 

This Deskbook is not a substitute for official publications. Similarly, it should not be considered 

to espouse an “official” position of the U.S. Army, Department of Defense, or U.S. Government. 

While every effort has been made to ensure that the material contained herein is current and 

correct, it should be remembered that these are merely a collection of teaching outlines, 

collected, bound, and distributed as a matter of instructional convenience, intended only to 

introduce students to the law and point them to primary sources of that law. Accordingly, the 

only proper citation to a substantive provision of this Deskbook should be for the limited 

proposition of how the Army JAG School teaches its judge advocate students. 

ii 

Preface 
INTERNATIONAL AND OPERATIONAL LAW DEPARTMENT
 

THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER AND SCHOOL
 

CHARLOTTESVILLE, VIRGINIA
 

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 

Legal Basis 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 107 

Means and Methods of Warfare 131 

War Crimes and Command Responsibility 163 

Human Rights 187 

Comparative Law 201

Index 235
 

iii 

Table of Contents 
REFERENCES 

This Deskbook is intended as a teaching tool, not as a collection of law review articles. The 

references which most chapters cite are common, so to avoid undue repetition, they are cited 

only here in full. The Short Version citation will generally be used in the chapters. Those 

references which are reprinted in the Law of War Documentary Supplement are noted. 

Short Version Citation Doc 

Supp? 

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

annexed to Hague Convention ( IV) Respecting the Laws and 

Customs of War on Land, Oct. 18, 1907, T.S. 539 . 

X 

GC I Geneva Convention for the Amelioration of the Condition of the 

Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 

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

X 

GC II Geneva Convention for the Amelioration of the Condition of 

Wounded, Sick, and Shipwrecked Members of Armed Forces at 

Sea, Aug. 12, 1949, 6 UST. 3217, T.I.A.S. 3363, 75 U.N.T.S. 85. 

X 

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

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

X 

GC IV Geneva Convention, Relative to the Treatment of Civilian Persons 

in Time of War, Aug. 12, 1949, 6 UST. 3516, T.I.A.S. 3365, 75 

U.N.T.S. 287. 

X 

AP I Protocol Additional to the Geneva Conventions of 12 August 1949, 

and Relating to the Protection of Victims of International Armed 

Conflicts, June 8, 1977, 1125 U.N.T.S. 3. 

X 

AP II Protocol Additional to the Geneva Conventions of 12 August 1949, 

and Relating to the Protection of Victims of Non-International 

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

X 

AP III Protocol Additional to the Geneva Conventions of 12 August 1949, 

and Relating to the Adoption of an Additional Distinctive Emblem, 

Dec. 8, 2005. 

X 

iv 

References 
 

Short Version Citation Doc 

Supp? 

GC I Commentary 

GC II Commentary 

etc. 

INTERNATIONAL COMMITTEE OF THE RED CROSS, GENEVA 

CONVENTION (I) FOR THE AMELIORATION OF THE CONDITION OF 

THE WOUNDED AND SICK IN ARMED FORCES IN THE FIELD: 

COMMENTARY (Jean Pictet gen. ed., 1958). 

AP Commentary INTERNATIONAL COMMITTEE OF THE RED CROSS, COMMENTARY ON 

THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA 

CONVENTIONS OF 12 AUGUST 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 Methods of 

Warfare, June 17, 1925, 26 UST. 571, 94 L.N.T.S. 65. 

X 

CWC Convention on the Prohibition of the Development, Production, 

Stockpiling and Use of Chemical Weapons and on Their 

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

X 

H.CP 1954 Hague Convention for the Protection of Cultural Property in 

the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 216. 

X 

1972 BW Convention on the Prohibition of the Development, Production and 

Stockpiling of Bacteriological (Biological) and Toxin Weapons 

and on Their Destruction, Apr. 10, 1972, 26 UST. 583. 

X 

CCW Convention on Prohibitions or Restrictions of the Use of Certain 

Conventional Weapons Which May be Deemed to be Excessively 

Injurious or to Have Indiscriminate Effects, Oct. 10, 1980, 19 

I.L.M. 1523. 

X 

FM 27-10 DEP'T OF THE ARMY, FIELD MANUAL 27-10, THE LAW OF LAND 

WARFARE (July 1956). 

X 

NWP 1-14M DEP'T OF THE NAVY, NAVAL WARFARE PUBLICATION 1-14M/U.S. 

MARINE CORPS MCPW 5-2.1, THE COMMANDER'S HANDBOOK ON 

THE LAW OF NAVAL OPERATIONS (October 1995). 

v 

References 
ABBREVIATIONS 

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

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

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

CIL ..................................................... Customary International Law 

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
 

NIAC ................................................. 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 
 

INTRODUCTION TO PUBLIC INTERNATIONAL LAW
 

I. OBJECTIVES 

A. Understand the foundation of the international legal system. 

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

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

II. INTRODUCTION 

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 options, and imposes affirmative 

obligations related to the conduct of U.S. forces. Commanders rely on Judge 

Advocates to understand fundamental principles of international law, translate those 

principles into an operational product, and articulate the essence of the principles 

when required. 

III. FUNDAMENTAL PRINCIPLES OF INTERNATIONAL LAW 

A. Definition. International law is defined as “rules and principles of general application 

dealing with the conduct of States and of international organizations and with their 

relations inter se, as well as some of their relations with persons, natural or 

juridical.”1 Public international law is that portion of international law that deals 

mainly with intergovernmental relations. 

B. States. International law developed to regulate relations between States, and States 

are the focus of the international legal system. International law establishes four 

criteria that must be met for an entity to be regarded as a State under the law: 

1. Defined territory (which can be established even if one of the boundaries is in 

dispute or some of the territory is claimed by another State); 

2. Permanent population (the population must be significant and permanent even if 

a substantial portion is nomadic); 

1

 RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES, § 101 (1987). 

1 

Introduction to Public International Law 
 

 

3. Government (note that temporary occupation by enemy forces during war or 

pursuant to an armistice does not serve to extinguish statehood even if the legal 

control of the territory shifts temporarily); and, 

4. Capacity to conduct international relations.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. Inherent tension. Under international law, sovereignty is the ultimate benefit of 

statehood. Inherent to sovereignty is the notion that a State should be free from 

outside interference; international law, however, seeks to regulate State conduct. 

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

legal system. 

IV. SOURCES OF INTERNATIONAL LAW 

A. Article 38 of the Charter of the International Court of Justice (ICJ) 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 bind those States that are parties. Note, 

however, that customary international law can emerge from rules 

established in treaties and, as a consequence, bind all States. Also, 

customary international law can be codified in subsequent treaties. 

2

 Id. at § 201. 

3 Id. at § 206. 

2 

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

the Executive branch which receive the consent of at least two-thirds of 

the Senate. Once ratified by the President, they become the “supreme law 

of the land” pursuant to the Supremacy Clause of the U.S. Constitution 

(Article VI, Clause 2). 

c. Reservations and Understandings. A reservation is essentially a unilateral 

modification of the basic obligations established by a treaty. Under 

international law, a reservation is permitted if it is compatible with the 

object and purpose of the treaty. It is treated as a “counter-offer,” and is 

only binding upon other States that agree to it, though agreement is 

assumed. Unlike a reservation, an understanding does not modify basic 

treaty obligations; rather, it guides future interpretation of those 

obligations. 

d. Treaties and domestic statutes. U.S. laws fall under the umbrella of the 

Supremacy Clause. Accordingly, a “later in time” analysis determines the 

supremacy of a treaty in conflict with a statute. Courts always attempt to 

reconcile apparent inconsistent provisions before resorting to the later in 

time rule. A conflict must be explicit for a court to find a statutory intent 

to contradict 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 international law. While this factor is not 

dispositive, developing law is more suspect than established custom. 

d. Persistent objector. It is possible for a State not to be bound by a rule of 

customary international law if that State persistently and openly objects to 

the rule as it develops, and continues to declare that it is not bound by the 

rule. The U.S. may act in accordance with principles that other States 

assert amount to customary international law, but expressly state it does 

3 

Introduction to Public International Law 
 

 

not consider itself legally obligated to do so. This is motivated by a 

concern that our conduct not be considered evidence of a customary norm. 

e. Jus Cogens. Some principles of international law are considered 

peremptory norms and cannot be derogated, even by treaty. Examples 

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 principles of law recognized by civilized nations. These “general 

principles,” as reflected primarily in the judicial opinions of domestic courts, 

can serve as “gap fillers” in international law. 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 
 

HISTORY OF THE LAW OF WAR
 

I. OBJECTIVES 

A. Identify the two “prongs” of legal regulation of warfare. 

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

II. INTRODUCTION 

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

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

permeate armed conflict. 

B. What is War?2

 The international legal definition contains the following four 

elements: (a) A contention; (b) between at least two nation-states; (c) wherein armed 

force is employed; (d) with an intent to overwhelm. 

C. War v. Armed Conflict. Historically, 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: 

“Any difference arising between two States and leading to the intervention of 

armed forces is an armed conflict . . . [i]t makes no difference how long the 

conflict lasts, or how much slaughter takes place.”3 

D. The Law of War. The law of war is the “customary and treaty law applicable to the 

conduct of warfare on land and to relationships between belligerents and neutral 

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 factions, 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.” DICTIONARY OF 

MILITARY TERMS 261 (Trevor N. Dupuy et al. eds., 2nd ed, 2003). 

3 Id. 

5 

History of the Law of War 
 

States.”4 It “requires that belligerents refrain from employing any kind or degree of 

violence which is not actually necessary for military purposes and that they conduct 

hostilities with regard for the principles of humanity and chivalry.”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 present content over millennia based on the actions 

and beliefs of States. It is deeply rooted in history, and an understanding of this 

history is necessary to understand current law of war principles. 

III. UNIFYING THEMES OF THE LAW OF WAR 

A. Law exists to either prevent conduct or control conduct. These characteristics 

permeate the law of war, as exemplified by 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 injuring 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 only 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 War 
C. The trend toward regulation grew over time in scope and recognition. When 

considering whether these rules have validity, the student and the teacher (Judge 

Advocates teaching Soldiers) must consider the objectives of the law of war. 

1. The purposes of the law of war are to (1) integrate humanity into war, and (2) 

serve as a tactical combat multiplier. 

2. The validity of the law of war is best explained in terms of both objectives. For 

instance, many cite the German massacre at Malmedy as providing American 

forces with the inspiration to break the German advance during World War II’s 

Battle of the Bulge. Accordingly, observance of the law of war denies the 

enemy a rallying cry against difficult odds. 

D. Why respect the Law of War? 

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

2. May motivate the enemy to surrender. 

3. Guards against acts that violate basic tenets of civilization, protects against 

unnecessary suffering, and safeguards certain fundamental human rights. 

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

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

6. Helps restore peace. 

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

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

initiate armed conflict (i.e., under what circumstances the use of military power 

is legally and morally justified). 

2. Jus in Bello is the law governing the actions of States once conflict has started 

(i.e., what legal and moral restraints apply to the conduct of waging war). 

3. Both categories of the law of war have developed over time, drawing most of 

their guiding principles from history. The concepts of Jus ad Bellum and Jus in 

Bello developed both unevenly and concurrently. For example, during the 

majority of the Jus ad Bellum period, most societies only dealt with rules 

concerning the legitimacy of using force. Once the conditions were present that 

7 

History of the Law of War 
justified war, there were often no limits on the methods used to wage war. 

Eventually, both theories began to evolve together. 

IV. ORIGINS OF JUS IN BELLO AND JUS AD BELLUM 

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 (7th century B.C.). The ancient Babylonians treated both 

captured soldiers and civilians with respect in accordance with well-established 

rules. 

2. Ancient China (4th century B.C.). Sun Tzu’s The Art of War set out a number of 

rules that controlled what soldiers were permitted to do during war, including 

the treatment and care of captives and respect for women and children in 

captured territory. 

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

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

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

could treat the vanquished. 

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 justified 

resort to war both legally and morally. 

1. The ancient Egyptians and Sumerians (25th century B.C.) generated rules 

defining the circumstances under which war might be initiated. 

2. The ancient Hittites (16th century 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 conditions existed. If 

those conditions existed the conflict, was blessed by the gods and was just; 

otherwise, armed conflict was forbidden. 

4. The Romans formalized laws and procedures that made the use of force an act 

of last resort. Rome dispatched envoys to the States against whom they had 

grievances, and attempted to resolve differences diplomatically. The Romans 

8 

History of the Law of War 
also are credited with developing the requirement for declaring war. Cicero 

wrote that war must be declared to be just. 

V. THE HISTORICAL PERIODS 

A. JUST WAR PERIOD - JUS AD BELLUM. 

1. This period ranged from about 335 B.C.-1800 A.D. The primary tenet 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 humanity 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 interests of the led, or (3) 

enable men to become masters of men who naturally deserved to be enslaved. 

Cicero refined Aristotle’s model by stating that “the only excuse for going to 

war is that we may live in peace unharmed....” 

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 Christianity 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 (6th century A.D.). 

5. Middle Ages. In his Summa Theologica, Saint Thomas Aquinas (12th century 

A.D.) refined the Just War theory by establishing the three conditions under 

which a Just War could be initiated: (a) with the authority of the sovereign; (b) 

with a just cause (to avenge a wrong or fight in self-defense); and (c) so long as 

the fray is entered into with pure intentions (for the advancement of good over 

evil). The key element of such an intention was to achieve peace. This was the 

requisite “pure motive.” 

6. Juristic Model. 

a. Saint Thomas Aquinas’ work signaled a transition of Just War doctrine 

from a concept designed to explain why Christians could bear arms 

(apologetic) toward the beginning of a juristic model. The concept of Just 

War initially sought to solve the moral dilemma posed by the tension 

9 

History of the Law of War 
between the Gospel and the reality of war. With the increase in the 

number of Christian nation-states, this concept fostered an increasing 

concern with regulating war for more practical reasons. 

b. The concept of Just War was being passed from the hands of the 

theologians to the lawyers. Several great European jurists emerged to 

document customary laws related to warfare. Hugo Grotius (1583-1645) 

produced the most systematic and comprehensive work, On the Law of 

War and Peace. His work is regarded as the starting point for the 

development of the modern law of war. While many of the principles 

enunciated in his work were consistent with previous church doctrine, 

Grotius boldly asserted a non-religious basis for this law. According to 

Grotius, the law of war was based not on divine law, but on recognition of 

the true natural state of relations among States. Thus, the law of war was 

based on natural, not divine, law. 

7. End of the Just War Period. By the time the next period emerged, Just War 

doctrine had generated a widely-recognized set of principles that represented the 

early customary law of war. The most fundamental 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. JUST WAR PERIOD – JUS IN BELLO. 

10 

History of the Law of War 
1. 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 beginning. 

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 absolute 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 transformed war from a tool to achieve justice, 

into a tool for the legitimate pursuit of national policy objectives. 

2. Just War Notion Pushed Aside. Positivism, reflecting the rights and privileges 

of the modern State, replaced natural or moral law principles. This body of 

thought held that law is based not on some philosophical speculation, but on 

rules emerging from the practice of States and international conventions. Basic 

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

wage war, there is no international legal mandate, based on morality or nature, 

to regulate resort to war (realpolitik replaces justice as the reason to go to war). 

War is, based upon whatever reason, a legal and recognized right of statehood. 

In short, if use of military force would help a State achieve its policy objectives, 

then force may be used. 

3. Clausewitz. This period was dominated by the realpolitik of Clausewitz. He 

characterized war as a continuation of a national policy that is directed at some 

desired end. Thus, a State steps from diplomacy to war, not always based upon 

a need to correct an injustice, but as a logical and required progression to 

achieve some policy end. 

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

a dark era for the rule of law. Yet, a number of significant developments 

signaled the beginning of the next period. Based on the positivist view, the best 

way to reduce the uncertainty associated with conflict was to codify rules 

regulating this area. Intellectual focus began 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 Roosevelt pushed for the two Hague Conferences that produced the 

Hague Conventions and Regulations). 

11 

History of the Law of War 
 

D. 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 legal 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 served 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 modern 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 “War is Hell” 

demonstrates the emergence and reintroduction of morality. As 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 States held the Hague Conferences (1899­

1907) that produced the Hague Conventions. While some Hague law focuses 

on war avoidance, the majority of the law dealt with limitation of suffering 

during war. 

6. Geneva Conventions (1949). The four Conventions that evolved from the 

earlier conventions of 1864, 1906, and 19296

 were a comprehensive effort to 

protect the victims of war. 

a. “War” vs. “Armed Conflict.” Article 2 common to all four Geneva 

Conventions ended this debate. Article 2 asserts that the law of war 

applies in any instance of international armed conflict. 

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 wounded and sick in the field and added what became GC II by addressing the 

care and protection of wounded and sick at sea. The 1929 Convention added the Prisoner of War 

protections that were updated in GC III. 

12 

History of the Law of War 
 

b. Birth of the Civilians Convention. A post-war recognition of the need to 

specifically address this class of individuals. 

c. The four Conventions are considered customary international law. This 

means that even if a particular State has not ratified the treaties, that State 

is still bound by the principles within each of the four treaties because they 

are merely a reflection of customary law that binds all States. As a 

practical matter, the customary international law status matters little 

because every State is currently a party to the Conventions. 

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

international forces. In practice, forces operating under U.N. control 

comply with the Conventions. 

e. Clear shift toward a true humanitarian motivation: “the Conventions are 

coming to be regarded less and less as contracts on a basis of reciprocity 

concluded in the national interest of each of the parties, and more and 

more as solemn affirmations of principles respected for their own sake.”7 

7. The 1977 Additional Protocols. These two treaties were negotiated to 

supplement the four Geneva Conventions. Protocol I supplements rules 

governing international armed conflicts, and Protocol II extends the protections 

of the Conventions as they relate to internal armed conflicts. 

E. JUS CONTRA BELLUM PERIOD. 

1. World War I represented a significant challenge to the validity of the “war as 

fact” theory. Despite the moral outrage directed toward the aggressors of World 

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

war constituted a breach of international law. Nevertheless, world leaders 

struggled to give meaning to a war of unprecedented carnage and destruction. 

The “war to end all wars” sentiment manifested itself in a 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 War 
a. League of Nations. First time in history that States agreed upon an 

obligation under the law not to resort to war to resolve disputes or to 

secure national policy goals. The Covenant of the League of Nations was 

designed to impose upon States certain procedural mechanisms prior to 

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, with 

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 

Renunciation of War, it banned aggressive war. This is the event 

generally thought of as the “quantum leap”: for the first time in history, 

aggressive war is clearly and categorically banned. In contradistinction to 

the post-World War I period, this treaty established an international legal 

basis for the post-World War II prosecution of those responsible for 

waging aggressive war. The Kellogg-Briand Pact remains in force today. 

Virtually all commentators agree that the provisions of the treaty banning 

aggressive war have ripened into customary international law. 

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 procedural requirements of the Hague Conventions did not prevent World 

War I, just as the procedural requirements of the League of Nations and the 

Kellogg-Briand Pact did not prevent World War II. World powers recognized 

the need for a world body with greater power to prevent war, and international 

law that provided more specific protections for the victims of war. 

2. Post-World War II War Crimes Trials (Nuremberg, Tokyo, and Manila 

Tribunals). The trials of those who violated international law during World War 

II demonstrated that another quantum leap had occurred since World War I. 

a. Reinforced tenets of Jus ad Bellum and Jus in Bello, and ushered in the era 

of “universality,” establishing the principle that all States are bound by the 

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

customary international law. 

14 

History of the Law of War 
 

b. International law focused on ex post facto problem during prosecution of 

war crimes. The universal nature of law of war prohibitions, and the 

recognition that they were at the core of international legal values, resulted 

in the legitimate application of those laws to those tried for violations. 

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

the ban, 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 States and commentators assumed that the absolute language 

in the Charter’s provisions permitted the use of force only if a State had 

already suffered an armed attack. 

b. Contemporary Period. Most States now agree that a State’s ability to 

defend itself is much more expansive than the provisions of the Charter 

seem to permit based upon a literal reading. This view is based on the 

conclusion that the inherent right of self-defense under customary 

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

remains a controversial issue. 

VI. CONCLUSION 

“Wars happen. It is not necessary that war will continue to be viewed as an 

instrument of national policy, but it is likely to be the case for a very long time. 

Those who believe in the progress and perfectibility of human nature may continue to 

hope that at some future point reason will prevail and all international disputes will be 

resolved by nonviolent means . . . . Unless and until that occurs, our best thinkers 

must continue to pursue the moral issues related to war. Those who romanticize war 

do not do mankind a service; those who ignore it abdicate responsibility for the future 

of mankind, a responsibility we all share even if we do not choose to do so.”8 

8

 Malham M. Wakin, Introduction to War and Morality, in WAR, MORALITY, AND THE MILITARY 

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

15 

History of the Law of War 
History of the Law of War 

16 
 

FRAMEWORK OF THE LAW OF WAR
 

I. OBJECTIVES 

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

B. Understand 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. THE LANGUAGE AND PRIMARY SOURCES OF THE LAW OF WAR 

A. The first step in understanding the law of war is to become 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 victims 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 the 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 primarily 

derived from Articles 22 through 41 of the Regulations Respecting the 

Laws and Customs of War on Land annexed to Hague Convention IV. 

Article 22 states that the means of injuring the enemy are not unlimited. 

c. Treaties. The following treaties, limiting specific aspects of warfare, are 

also sources of targeting guidance. These treaties are discussed more fully 

in the Means and Methods of Warfare section on weapons. 

i. Gas. The 1925 Geneva Protocol prohibits use in war of 

asphyxiating, poisonous, or other gases. A number of States, 

17 

Framework of the Law of War 
including the U.S., reserved the right to respond with chemical 

weapons to a chemical attack. The 1993 Chemical Weapons 

Convention, however, prohibits production, stockpiling, and use of 

chemical weapons, even in retaliation. The U.S. ratified the CWC 

in April 1997. 

ii. Cultural Property. The 1954 Hague Cultural Property Convention 

seeks to protect cultural property. 

iii. Biological Weapons. The 1925 Geneva Protocol prohibits biological 

weapons. However, the 1972 Biological 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 War 
 

 

3. 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 aerial 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. Status. At the time of this writing, 168 States 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 

consider 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 articles. 

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 the 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 to the 1949 Geneva Conventions, 2 AM. U. J. INT’L L. & POL’Y 419, 420 

(1987). This article is summarized in the Documentary Supplement. 

19 

Framework of the Law of War 
5. Army Publications. Because these publications are no longer available in 

printed form they have been compiled, along with many other key source 

documents, in the Law of War Documentary Supplement. 

a. FM 27-10, The Law of Land Warfare. Organized functionally by 

category, and incorporates rules from multiple sources including 

customary and treaty law. Note that FM 27-10 is dated July 1956, with 

Change 1 dated 15 July 1976. 

b. DA Pam 27-1, Treaties Governing Land Warfare. A verbatim reprint of 

the Hague and Geneva Conventions. 

c. DA Pam 27-1-1, Protocols to the Geneva Conventions of 12 August 1949. 

A verbatim reprint of the 1977 Additional Protocols to the Geneva 

Conventions. 

III. HOW THE LAW OF WAR IS TRIGGERED 

A. The Barrier of Sovereignty. Normally, the concept of sovereignty protects a State 

from outside interference with its internal affairs. This is exemplified by the 

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 regulated 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 them.” Insofar as this is an 

article common to all four Conventions, its triggering indicates that all four 

Conventions are thereby applicable. 

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

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

20 

Framework of the Law of War 
favor of the broader principle of armed conflict. According to the GC 

Commentary, this article was intended to be broadly defined in order to 

extend the reach of the Conventions to as many conflicts as possible. 

b. The Commentary states that the law of war applies to “any difference 

arising between two States and leading to the intervention of armed 

forces.” Accordingly, the following two facts result in application of the 

entire body of the law of war, from the inception of the conflict: 

i. A dispute between States, and 

ii. Armed conflict. 

c. Additional Protocol I. Supplements Common Article 2. 

i. This controversial expansion of Common Article 2 expands the 

Geneva Conventions’ application to conflicts previously considered 

non-international: “[A]rmed conflicts in which peoples are fighting 

against colonial domination and alien occupation and against racist 

regimes in the exercise of their right of self determination.” 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 expansive 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 Conflict: “Armed conflict not of an 

international character occurring in the territory of one of the High Contracting 

Parties . . . .” 

21 

Framework of the Law of War 
a. These types of conflicts make up the vast bulk of ongoing conflicts. 

Whereas the existence of an international armed conflict triggers the entire 

body of the law of war, the existence of an internal armed conflict only 

triggers application of Common Article 3’s “mini convention” protections. 

b. Providing for the interjection of international regulation 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 combatants 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 conflicts 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. What 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 group demonstrate respect for the law of war? This is more 

often accepted to mean that the group must not demonstrate an 

unwillingness to abide by the law of war. 

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

forces? 

d. Additional Protocol II. Supplements Common Article 3. 

22 

Framework of the Law of War 
i. Controversial shrinking coverage of law relating to non-international 

armed conflict. Intended to supplement the substantive provisions of 

Common Article 3, AP II formalized the criteria for the application 

of that Convention to a non-international armed conflict. 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 think of the law related to international armed conflict, also 

think of AP I; and 

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

AP II. 

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

relevance 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 international 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, whether 

international armed conflict, internal armed conflict, or situations short of armed 

conflict. 

23 

Framework of the Law of War 
 

1. DoD Directive 2311.01E (9 May 2006), DoD Law of War Program, requires all 

members of the armed forces to “comply with the law of war during all armed 

conflicts, however such conflicts are characterized, and in all other military 

operations.”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 during 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 primarily protect 

individuals from the arbitrary or cruel treatment by their own governments. While 

the substance of human rights protections may be synonymous with certain law of 

war protections, it is critical to remember these are two distinct bodies of international 

law. The law of war is triggered by conflict. No such trigger is required for human 

rights law. These two bodies of international law are easily confused, especially 

because of the 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) that required members of the armed forces to “comply with the law of war during 

all armed conflicts, however such conflicts are characterized, and with the principles and spirit of the law 

of war during all other operations.” DoD Directive 2311.01E is reprinted in the Documentary 

Supplement. 

3

 This instruction is reprinted in the Documentary Supplement. 

24 

Framework of the Law of War 
LEGAL BASIS FOR THE USE OF FORCE
 

I. OBJECTIVES
 

A. Understand the international legal prohibition against the threat or use of force as 

found in Article 2(4) of the United Nations (UN) Charter (the “rule”). 

B. Understand enforcement action taken by the UN Security Council pursuant to 

Chapter VII of the UN Charter (“exception #1”). 

C. Understand the “inherent right of self-defense” as found in Article 51 of the UN 

Charter (“exception #2”). 

II. INTRODUCTION 

A. General. There are a variety of internationally-recognized legal bases for the use of 

force in relations between States, found in both customary and treaty law. Generally 

speaking, however, modern jus ad bellum (the law governing a State’s resort to 

force) is reflected in the United Nations (UN) Charter. The UN Charter provides two 

bases for the resort to force: Chapter VII enforcement actions under the auspices of 

the UN Security Council, and self-defense pursuant to Article 51 (which governs acts 

of both individual and collective self-defense). 

B. Policy and Legal Considerations. 

1. Before committing U.S. military force abroad, decision-makers must make a 

number of fundamental policy determinations. The President and the national 

civilian leadership must be sensitive to the legal, political, diplomatic, and 

economic factors inherent in a decision to further national objectives through 

the use of force. The legal aspects of such a decision, both international and 

domestic, are of primary concern in this determination. Any decision to 

employ force must rest upon the existence of a viable legal basis in 

international law as well as in domestic law (including application of the 1973 

War Powers Resolution (WPR), Public Law 93-148, 50 U.S.C. §§ 1541-1548). 

This chapter will focus exclusively on the international legal basis for the use of 

force. 

2. Though these issues will normally be resolved at the national political level, 

Judge Advocates (JAs) must understand the basic concepts involved in a 

determination to use force abroad. Using the mission statement provided by 

higher authority, JAs must become familiar with the legal justification for the 

mission and, in coordination with higher headquarters, be prepared to brief all 

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

25 

Legal Basis for the Use of Force 
 

 

better plan their missions, structure public statements, and conform the conduct 

of military operations to U.S. national policy. It will also assist commanders in 

drafting and understanding mission-specific Rules of Engagement (ROE) which 

authorize the use of force consistent with national security and policy 

objectives. 

3. The JA must also remember that the success of any military mission abroad will 

likely depend upon the degree of domestic support demonstrated during the 

initial deployment and sustained operation of U.S. forces. A clear, wellconceived, effective, and timely articulation of the legal basis for a 

particular mission is essential to sustaining support at home and gaining 

acceptance abroad. 

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

1. The UN Charter mandates that all member States resolve their international 

disputes peacefully,1

 and requires that they refrain in their international relations 

from the threat or use of force against the territorial integrity or political 

independence of any State.2 This ban on aggression, taken from Article 2(4) of 

the UN Charter, is regarded as the heart of the UN Charter and the basic rule of 

contemporary public international law.3 Complementing Article 2(4) is the 

principle of non-intervention, which provides that the United Nations, and 

implicitly all other States, must refrain from interference in other States’ 

internal affairs.4 Put simply, non-intervention stands for the proposition that 

States must respect each other’s sovereignty. 

2. American policy statements have frequently affirmed the principle of nonintervention, 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 and justice are not endangered.” The UN Charter is 

reprinted in the Documentary Supplement. 

2

 UN Charter, Article 2(4): “All members shall refrain in their international relations from the threat or 

use of force against the territorial integrity or political independence of any state . . . .” 

3 See 1 THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 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 Nations 

to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require 

the Members to submit such matters to settlement under the present Charter; but this principle shall not 

prejudice the application of enforcement measures under Chapter VII.” 

5

 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 Force 
 

which specifically incorporate non-intervention as a basis for mutual 

cooperation. The emerging concept of humanitarian intervention, however, 

has watered down the principle of non-intervention and respect for State 

sovereignty in circumstances when the State is unable or unwilling to avert a 

humanitarian catastrophe or is itself responsible for massive violations of 

human rights against its citizens.6 

III. THE LAWFUL USE OF FORCE 

A . General. Despite the UN Charter’s broad legal prohibitions against the use of force 

and other forms of intervention, specific exceptions exist that justify a State’s 

recourse to the use of force or armed intervention. While States have made numerous 

claims, using a wide variety of legal bases to justify a use of force, it is generally 

agreed that there are only two exceptions to the Article 2(4) ban on the threat or use 

of force: (1) actions authorized by the UN Security Council under Chapter VII of the 

UN Charter, and (2) actions that constitute a legitimate act of individual or collective 

self-defense pursuant to Article 51 of the UN Charter and/or customary 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 UNTS 3, 2 UST 2394, available at 

http://www.oas.org/dil/treaties_A-41_Charter_of_the_Organization_of_American_States.htm. See also 

Inter-American Treaty of Reciprocal Assistance (Rio Treaty), Art. 1: “. . . Parties formally condemn war 

and undertake in their international relations not to resort to the threat or the use of force in any manner 

inconsistent with the provisions of the Charter of the United Nations or this Treaty.” Inter-American 

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

http://www.oas.org/juridico/English/treaties/b-29.html. 

6 See Report of the International Commission on Intervention and State Sovereignty, December 2001 

(“Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state 

failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention 

yields to the international responsibility to protect.”) The United States does not accept humanitarian 

intervention as a separate basis for the use of force; however, the United Kingdom has expressed support 

for it. See Lord Goldsmith, Attorney General, Iraq: Resolution 1441, para. 7 (Mar. 7, 2003) (secret memo 

to Prime Minister, released Apr. 28, 2005), available at http://www.number10.gov.uk/files/pdf/Iraq%20Resolution%201441.pdf. 

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 it is not being 

violated. 

27 

Legal Basis for the Use of Force 
 

 

1. The UN Security Council. The UN Charter grants the UN Security Council a 

powerful role in determining the existence of an illegal threat or use of force, 

and wide discretion in mandating or authorizing a response to such a threat or 

use of force (enforcement). The unique role is grounded primarily in Chapter 

VII of the UN Charter which demonstrates the Charter’s strong preference 

for collective responses to the illegal use of force over unilateral actions in 

self-defense. Chapter V of the UN Charter establishes the composition and 

powers of the Security Council. The Security Council includes five permanent 

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

and ten non-permanent, elected members. Article 24 states that UN members 

“confer on the Security Council primary responsibility for the maintenance of 

international peace and security” and, in Article 25, members “agree to accept 

and carry out the decisions of the Security Council in accordance with the 

present Charter.” 

2. Chapter VII of the UN Charter, entitled “Action With Respect to Threats to 

the Peace, Breaches of the Peace, and Acts of Aggression,” gives the UN 

Security Council authority to label as illegal threats and uses of force, and then 

to determine what measures should be employed to address the illegal behavior. 

Before acting, the Security Council must first, in accordance with Article 

39, determine/label the existence of a threat to the peace, a breach of the 

peace, or an act of aggression. Provided it makes such a determination, the 

UN Charter gives the Security Council the ability to do one of three things: 1) 

make recommendations pursuant to Article 39; 2) mandate non-military 

measures (i.e., diplomatic and economic sanctions) pursuant to Article 41; or 3) 

mandate military enforcement measures (“action by air, land, or sea forces”) 

pursuant to Article 42. 

a. Article 39, the same article whereby the Security Council performs its 

“labeling” function, allows the Council to make non-binding 

recommendations to maintain or restore international peace and security. 

Because Article 42 has not operated as intended (see infra), some have 

grounded UN Security Council “authorizations” to use military force in 

Article 39 (as non-binding permissive authorizations) vice Article 42 (as 

binding mandates).8 

b. Article 41 lists several non-military enforcement measures designed to 

restore international peace and security. These include “complete or 

partial interruption of economic relations and of rail, sea, air, postal, 

telegraphic, radio, and other means of communication, and the severance 

of diplomatic relations.” Article 41 measures are stated as a “decision” 

(mandate), binding on all UN members. Article 42 implies that Article 

8 See YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 310-15 (4th ed. 2005). 

28 

Legal Basis for the Use of Force 
 

41 measures must be attempted (or at least considered) before the Security 

Council adopts any of the military measures available to it. 

c. Article 42 contemplated that the Security Council would be able to 

mandate military action by forces made available to it under special 

agreements with UN member States. However, because no Article 43 

special agreement has ever been made, Article 42 has not operated as 

envisioned. This means that the Security Council is unable to mandate 

military enforcement action in response to illegal threats or uses of force. 

Consequently, military measures taken pursuant to Chapter VII are 

fundamentally permissive, phrased by the Security Council in the 

form of an authorization to member States rather than a mandate. 

3. UN Peacekeeping and Peace Enforcement Operations. In the absence of special 

agreements between member States and the Security Council, UN peacekeeping 

operations enable the Security Council to carry out limited enforcement actions 

through member States on an ad hoc, voluntary basis. While these operations 

were traditionally grounded in Chapter VI of the UN Charter, which deals with 

peaceful means of settling disputes, today more peace operations are considered 

peace enforcement operations and carry with them a Chapter VII authorization 

from the Security Council. The authorization that accompanies these operations 

is usually narrowly worded to accomplish the specific objective of the peace 

operation. For example, UN Security Council Resolution (UNSCR) 794 (1992) 

authorized member States to use “all necessary means to establish, as soon as 

possible, a secure environment for humanitarian relief operations in Somalia.” 

4. Regional Organization Enforcement Actions. Chapter VIII of the UN Charter 

recognizes the existence of regional arrangements among States that deal with 

such matters relating to the maintenance of international peace and security, as 

are appropriate for regional actions (Article 52). Regional organizations, such 

as the OAS, African Union, and the Arab League, attempt to resolve regional 

disputes peacefully, before referral to the UN Security Council. Regional 

organizations do not, however, have the ability to unilaterally authorize the 

use of force (Article 53). Rather, the Security Council may utilize the 

regional organization to carry out Security Council enforcement actions. In 

other words, regional organizations are subject to the same limitation on the use 

of force as are individual States. 

IV. SELF-DEFENSE 

A. Generally. 

1. The right of all nations to defend themselves was well-established in CIL prior 

to adoption of the UN Charter. Article 51 of the Charter provides: 

29 

Legal Basis for the Use of Force 
 

Nothing in the present Chapter shall impair the inherent right of individual 

or collective self-defense if an armed attack occurs against a member of 

the UN until the Security Council has taken measures necessary to 

maintain international peace and security. . . . 

2. The questions that inevitably arise in conjunction with the UN Charter’s 

“codified” right of self-defense involve the scope of authority found therein. 

Does this right, as the language of Article 51 suggests, exist only after a State 

has suffered an “armed attack,” and then only until the Security Council takes 

effective action? Did the UN Charter thus limit the customary right of selfdefense in such a way that eliminated the customary concept of anticipatory 

self-defense (see infra) and extinguished a State’s authority to act independently 

of the Security Council in the exercise of self-defense? Some in the 

international community advocate a restrictive approach based on the text of 

Article 51. Others argue that the customary right of self-defense was not 

extinguished by Article 51 of the UN Charter. 

3. Those in the international community who advocate a restrictive interpretive 

approach to Article 51 argue that reliance upon customary concepts of selfdefense, to include anticipatory self-defense, is inconsistent with the clear 

language of Article 51 and counterproductive to the UN goal of peaceful 

resolution of disputes and protection of international order. 

4. In contrast, some States, including the United States, argue that an expansive 

interpretation of the UN Charter is more appropriate, contending that the 

customary law right of self-defense (including anticipatory self-defense) is an 

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

Charter. Because contemporary experience has demonstrated the inability of 

the Security Council to deal effectively with acts and threats of aggression, 

these States argue that, rather than artificially limiting a State’s right of selfdefense, it is better to conform to historically-accepted criteria for the lawful use 

of force, including circumstances which exist outside the “four corners” of the 

Charter. 

B. Self-Defense Criteria: Necessary and Proportional. 

1. It is well-accepted that the UN Charter provides the essential framework of 

authority for the use of force, effectively defining the foundations for a modern 

jus ad bellum. Inherent in modern jus ad bellum is the customary requirement 

that all uses of force be both necessary and proportional.9 

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 purposes of using force whereas jus in bello (law of war) 

30 

Legal Basis for the Use of Force 
 

2. In order to comply with the necessity criterion, States must consider the 

exhaustion or ineffectiveness of peaceful means of resolution, the nature of 

coercion applied by the aggressor State, the objectives of each party, and the 

likelihood of effective community intervention. In other words, force should be 

viewed as a “last resort.” 

3. In order to comply with the proportional force criterion, States must limit the 

magnitude, scope, and duration of any use of force to that level of force which is 

reasonably necessary to counter a threat or attack.10 

C. Types of Self-Defense. 

1. Individual Self-Defense. The inherent right of individual self-defense is the 

most prototypical of the different types of self-defense that a State may rely on 

to justify a use of force. Within the bounds of both the UN Charter and 

customary practice, the inherent right of individual self-defense has primarily 

found expression in three recurring areas: 1) protection of a nation’s territorial 

integrity; 2) protection of a nation’s political independence; and 3) protection of 

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

with these foundational issues, as well as basic concepts of self-defense, as they 

relate to overseas deployments and operations, such as the Chairman of the Joint 

Chiefs of Staff (CJCS) Standing Rules of Engagement (SROE)11 and the 

response to State-sponsored terrorism. 

a. Protection of Territorial Integrity. States possess an inherent right to 

protect their national borders, airspace, and territorial seas. No nation has 

the right to violate another nation’s territorial integrity, and force may be 

used to preserve that integrity consistent with the customary and the 

Article 51 right of self-defense. 

b. Protection of Political Independence. A State’s political independence is a 

direct attribute of sovereignty, and includes the right to select a particular 

form of government and its officers, the right to enter into treaties, and the 

right to maintain diplomatic relations with the world community. The 

rights of sovereignty or political independence also include the freedom to 

engage in trade and other economic activity. Consistent with the 

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 immediacy 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 Documentary Supplement. 

31 

Legal Basis for the Use of Force 
 

principles of the UN Charter and CIL, each State has the duty to respect 

the political independence of every other State. Accordingly, force may 

be used to protect a State’s political independence when it is threatened 

and all other avenues of peaceful redress have been exhausted. 

c. Protection of Nationals. Customarily, a State has been afforded the right 

to protect its citizens abroad if their lives are placed in jeopardy and the 

host State is either unable or unwilling to protect them. This right is cited 

as the justification for non-combatant evacuation operations (NEO).12 

i. The protection of U.S. nationals was identified as one of the legal 

bases justifying U.S. military intervention in both Grenada and 

Panama. In each case, however, the United States emphasized that 

protection of U.S. nationals, standing alone, did not necessarily 

provide the legal basis for the full range of U.S. activities undertaken 

in those countries. Thus, while intervention for the purpose of 

protecting nationals is a valid and essential element in certain uses of 

force, it cannot serve as an independent basis for continued U.S. 

military presence in another country after the mission of 

safeguarding U.S. nationals has been accomplished. 

ii.	 The right to use force to protect citizens abroad also extends to those 

situations in which a host State is an active participant in the 

activities posing a threat to another State’s citizens (e.g., the 

government of Iran’s participation in the hostage-taking of U.S. 

embassy personnel in that country in 1979-81; and Ugandan 

President Idi Amin’s support of terrorists who kidnapped Israeli 

nationals and held them at the airport in Entebbe in 1976). 

2. Collective Self-Defense. Also referred to in Article 51, the inherent right of 

collective self-defense allows victim States to receive assistance from other 

States in responding to and repelling an armed attack. To constitute a legitimate 

act of collective self-defense, all conditions for the exercise of an individual 

State’s right of self-defense must be met, along with the additional requirement 

that assistance must be requested by the victim State. There is no recognized 

right of a third-party State to unilaterally intervene in internal conflicts where 

the issue in question is one of a group’s right to self-determination and there is 

no request by the de jure government for assistance. 

a. Collective Defense Treaties and Bilateral Military Assistance Agreements. 

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

32 

Legal Basis for the Use of Force 
i. Collective defense treaties, such as that of the North Atlantic Treaty 

Organization (NATO); the Inter-American Treaty of Reciprocal 

Assistance (the Rio Treaty); the Security Treaty Between Australia, 

New Zealand, and the United States (ANZUS); and other similar 

agreements do not provide an international legal basis for the use of 

U.S. force abroad, per se. These agreements simply establish a 

commitment among the parties to engage in “collective self-defense” 

as required by specified situations, and provide the framework 

through which such measures are to be taken. From an international 

law perspective, a legal basis for engaging in measures involving the 

use of military force abroad must still be established from other 

sources of international law extrinsic to these collective defense 

treaties (i.e., there still must be a justifiable need for collective selfdefense, 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. These are 

not defense agreements, and thus impose no commitment on the part 

of the United States to come to the defense of the other signatory 

State in any given situation. Moreover, such agreements, like 

collective defense treaties, also provide no intrinsic legal basis for 

the use of military force. 

3. Anticipatory Self-Defense. As discussed above, some States embrace an 

interpretation of the UN Charter that extends beyond the black letter language 

of Article 51, under the CIL principle of “anticipatory self-defense.” 

Anticipatory self-defense justifies using force in anticipation of an “imminent” 

armed attack. Under this concept, a State is not required to absorb the “first hit” 

before it can resort to the use of force in self-defense to repel an imminent 

attack. 

a. Anticipatory self-defense finds its roots in the 1837 Caroline case and 

subsequent correspondence between then-U.S. Secretary of State Daniel 

Webster and his British Foreign Office counterpart, Lord Ashburton. 

Secretary Webster posited that a State need not suffer an actual armed 

attack before taking defensive action, but may engage in anticipatory selfdefense if the circumstances leading to the use of force are “instantaneous, 

overwhelming, and leaving no choice of means and no moment for 

deliberation.” As with any form of self-defense, any use of force based on 

the customary right of anticipatory self-defense must be both necessary 

and proportional. 

b. Because the invocation of anticipatory self-defense is fact-specific in 

nature, and therefore appears to lack defined standards of application, it 

remains controversial in the international community. Concerns over 

33 

Legal Basis for the Use of Force 
 

 

 

extension of anticipatory self-defense as a pretext for reprisal or 

preventive actions (i.e., the use of force before the coalescence of an 

actual threat) have not been allayed by contemporary use. It is important 

to note, however, that anticipatory self-defense serves as a foundational 

element in the CJCS SROE, as embodied in the concept of “hostile 

intent,” which makes it clear to commanders that they do not, and should 

not, have to absorb the first hit before their right and obligation to exercise 

self-defense arises. 

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

the U.S. Government took a step toward what some view as a significant 

expansion of use of force doctrine from anticipatory self-defense to 

preemption.13 This position was reinforced in the 2006 NSS, which 

reaffirmed the doctrine of preemptive self-defense against “rogue states 

and their terrorist clients” who pose a threat to the United States based on 

their expressed desire to acquire and use weapons of mass destruction.14 

The “Bush doctrine” of preemption basically re-cast the right of 

anticipatory self-defense based on a different understanding of 

imminence. Thus, the NSS stated, “We must adapt the concept of 

imminent threat to the capabilities and objectives of today’s adversaries.” 

It concluded: “The greater the threat, the greater is the risk of inaction— 

and the more compelling the case for taking action to defend ourselves, 

even if uncertainty remains as to the time and place of the enemy’s 

attack.”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 defender’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 selfdefense—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 MICH. J. INT’L L. 513, 534 (2003). 

34 

Legal Basis for the Use of Force 
 

 

D. Self-Defense Against Non-State Actors. Up to now, this chapter has discussed armed 

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

attacks launched by non-state actors from a State. The law is still grappling with this 

reality. While the answer to this question may depend on complicated questions of 

state responsibility, many scholars base the legality of cross border attacks 

against non-state actors on whether the “host” State is unwilling or unable to 

deal with the non-state actors who are launching armed attacks from within its 

territory.

17 Some scholars have posited that a cross border response into a “host” 

State requires the “victim” State to meet a higher burden of proof in demonstrating 

the criteria that establish the legality of a State’s use of force in self-defense.18 

17 See DINSTEIN, supra note 8, at 244-46. 

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

Framework, 56 NAVAL L. REV. 1 (2009). 

35 

Legal Basis for the Use of Force 
Legal Basis for the Use of Force 

36 
GENEVA CONVENTION I: WOUNDED AND SICK IN THE FIELD 

I. OBJECTIVES 

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

field. 

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

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

D. Recognize the different status given to medical personnel and chaplains and the 

implications of such status, including the protections they are afforded, and the 

difference between being retained vice being a prisoner of war. 

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

F. Recognize the distinctive emblems which enjoy the Convention’s protections, as well 

as the additional distinctive emblem introduced by AP III. 

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

the armed forces at sea. 

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

sick, and shipwrecked. 

II. INTRODUCTION 

A. Background. 

1. Henry Dunant’s book “A Memory of Solferino,” published in 1859, served as a 

catalyst in Europe to discuss the treatment of wounded and sick on the 

battlefield. 

a. Led to 1863 Conference in Geneva. 

b. The Conference resulted in the 1864 Geneva Convention, which U.S. 

ratified in 1882. Key provisions include: 

i. Military ambulances and hospitals are neutral. 

37 

GC I: Wounded and Sick 
ii. Medical personnel and Chaplains are neutral. Repatriation is the 

rule. 

iii.	 Wounded must be cared for. Repatriation if incapable of further 

service and agree not to take up arms again. 

2. Updated in 1906 (followed shortly by the Xth Hague Convention of October 18, 

1907, for the adaption to Maritime Warfare of the principles of the Geneva 

Convention of 1906. The Xth Hague convention was replaced in 1949 by a new 

Geneva Convention related to the shipwrecked (GC II). (See GC II, art. 58). 

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

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

IV). 

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

AP II for non-international armed conflicts. 

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

U.S. will ratify them any time soon, especially since the U.S. has 

expressed its opposition to certain provisions. 

b. Despite the fact that the U.S. has not ratified these treaties, understanding 

AP I and II is important for at least two reasons: (1) Certain provisions of 

AP I and AP II are considered customary international law, and therefore 

binding on the U.S.; and (2) many U.S. coalition partners have ratified AP 

I and II and therefore may have different legal obligations than the U.S. 

during a combined operation. 

c. AP I, Part II, concerns “Wounded, sick and shipwrecked” in international 

armed conflict. It developed the protections and obligations contained 

within GC I and II in a number of ways, including: 

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

ii. Recognized that civilian medical personnel and units shall receive 

the same protection as that formerly reserved for military medical 

personnel and units; 

iii.	 Confirmed and extended the humanitarian role of the civilian 

population and of relief societies; 

38 

GC I: Wounded and Sick 
iv. Extended the scope of the protection for medical transportation by 

air by developing the procedures required to invoke this right; 

v. Introduced the right of families to be informed of the fate of their 

relatives and developed the provisions concerning missing persons 

and the remains of the deceased. 

d. AP II, Part III, concerns “Wounded, sick and shipwrecked” in noninternational armed conflict and supplements AP II, Part II (Humane 

Treatment). This Part reiterates the essential substance of AP I, Part II, 

but taking into account the particular context of non-international armed 

conflict. It develops the protections and obligations contained within 

Common Article 3, attempting to make explicit what were implicit in that 

article’s very simple statements. 

B. Geneva Conventions – Scope of Application. The purpose of this section is to 

provide a brief review of when the Geneva Conventions become applicable. Students 

should consult the chapter on the Framework of the Law of War, elsewhere in this 

deskbook, for a more in-depth discussion. When conducting a legal analysis applying 

the Geneva Conventions, one starting point for the analysis could be to answer the 

following two questions: (1) In what type of conflict are the parties engaged?; and 

(2) What type of person is the subject of the analysis? 

1. Geneva Trigger: What Type of Conflict? All four Geneva Conventions of 1949 

have “common articles,” which are verbatim in each. Common Article 2 , is 

singularly important in that it sets up all four Conventions with an “either/or” 

condition/trigger: 

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

Article 2 states that the Geneva Conventions apply in their entirety. 

b. Or it is a non-international conflict (NIAC), in which case Common 

Article 3 states that, although the Geneva Conventions do not apply, there 

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

c. Note 1: Both IAC and 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 fighting against colonial 

domination and alien occupation and against racist regimes in the exercise 

39 

GC I: Wounded and Sick 
 

of their right of self-determination.” This expansion is one of the reasons 

the U.S. has not ratified AP I. 

e. Note 3: For States party to AP II, article 1 restricts the scope of NIAC to 

conflicts of a certain degree of intensity over that provided by Common 

Article 3.1 The U.S. opposes this contraction of protection. 

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

Conventions must not only inquire into the nature of the conflict (as discussed 

above), but must also ask what is the type of person that is the subject of the 

analysis? Since each Convention, and parts of those Conventions, protect 

different types of persons, an understanding of the person’s identity and role in 

the armed conflict is required to determine their associated legal protections. 

a. So, for instance, civilians are primarily protected by GC IV, while the 

protections governing a shipwrecked sailor would generally be found in 

GC II. 

b. The types of persons protected by GC I will be discussed below. 

However, the point made here is that persons who do not fit into a GC I 

category are not legally protected by that particular Convention, but might 

be protected by another. For example, a shipwrecked sailor, initially 

protected by GC II, who is sick or wounded is protected by GC I once put 

ashore; once he recovers, he is protected as a POW by GC III. 

3. Even if the “Type of Conflict/Type of Person” analysis reveals that the 

protections of the Geneva Conventions are not legally required, the lack of legal 

protection does not prevent a policy judgment being made to provide the 

protections/treatment anyway. For instance, DoD Directive 2311.01E, the DoD 

Law of War Program, states that U.S. Forces will “comply with the law of war 

during all armed conflicts, however such conflicts are characterized, and in all 

other military operations.” 

C. Definitions. 

1. The term “wounded and sick” is not defined in GC I or II. Concerned that any 

definition would be misinterpreted, the drafters decided that the meaning of the 

words was a matter of “common sense and good faith.”2 However, AP I, art. 

8(1), contains the following definition of “wounded” and “sick”: “Persons, 

whether military or civilian, who, because of trauma, disease or other physical 

1 See AP Commentary at 1348. 

2

 GC I Commentary at 136. 

40 

GC I: Wounded and Sick 
or mental disorder or disability, are in need of medical assistance or care and 

who refrain from any act of hostility.” 

2. “Shipwrecked” is also not defined in GC II, though it includes shipwrecks 

“from any cause and includes forced landings at sea by or from aircraft.” (GC 

II, art. 12). AP I, art. 8(2) provides a more detailed definition of “shipwrecked” 

to mean “persons, whether military or civilian, who are in peril at sea or in other 

waters as a result of misfortune affecting them or the vessel or aircraft carrying 

them.” 

D. General Substantive Protections. 

1. NIAC and Common Article 3 Protections for the Wounded and Sick. Common 

Article 3, also known as the “Mini-Convention” because it alone provided 

protections in NIAC, does include some protections for the wounded and sick. 

a. “Persons . . . placed hors de combat by sickness, wounds, detention, or any 

other cause, shall in all circumstances be treated humanely, without any 

adverse distinction founded on race, colour, religion or faith, sex, birth or 

wealth, or any other similar criteria.” (Common Article 3, para. 1) 

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

Article 3, para. (2)) 

c. Recall that AP II also applies to NIAC. For those nations which are 

parties to AP II (the United States is not a party), the Protocol expands 

slightly the protection for the wounded and sick and those who aid them 

beyond that provided for in Common Article 3. 

2. IAC and Protections for the Wounded and Sick. In a Common Article 2 

conflict, the full GC I (and GC II for those at sea) are applicable. It is with 

these protections that the remainder of this chapter will be concerned. The 

protections can be summarized as consisting of three pillars: 

a. Treatment of the wounded and sick; 

b. Protections for personnel aiding the wounded and sick; 

c. Distinctive emblems/symbols to identify protected personnel, units, and 

establishments. 

41 

GC I: Wounded and Sick 
 

III. CATEGORIES OF WOUNDED AND SICK 

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 forth those persons protected by GC I. This article 

is the same as GC III, art. 4; therefore, the analysis to determine whether the person 

is protected by GC I is identical to the analysis of whether the person is entitled to 

POW status under GC III, art. 4. Students should refer to the deskbook chapter on 

Geneva Convention III – Prisoners of War, for a more detailed discussion of these 

categories. 

B. Other Persons. Wounded and sick persons who do not qualify under any of the 

categories in GC I, art. 13, will be covered as civilians by GC IV. 

1. GC IV, art. 16, provides: “The wounded and sick, as well as the infirm, and 

expectant mothers, shall be the object of particular protection and respect.” 

a. This coverage of civilians is qualified by the following language in GC 

IV, art. 16: “As far as military considerations allow, each Party to the 

conflict shall facilitate the steps taken to search for the killed and 

wounded, to assist the shipwrecked and other persons exposed to grave 

danger, and to protect them against pillage and ill-treatment” (emphasis 

added). This recognizes the fact that saving civilians is the responsibility 

of the civilian authorities rather than of the military. The military is not 

required to provide injured civilians with medical care in a combat zone. 

However, once the military starts to provide treatment, the provisions of 

GC I apply.3 

b. It is U.S. policy that “[c]ivilians who are injured, wounded, or become 

sick as a result of military operations may be collected and provided initial 

medical treatment in accordance with theater policies.”4 

3. AP I, art. 8(a), however, expressly includes civilians within its definition of 

“wounded and sick.” Though the U.S. is not bound by AP I, practitioners 

should be wary of treating wounded and sick civilians in a manner different 

from wounded and sick combatants. Given the GC IV protections and the 

development of the law by AP I, as a practical matter, all wounded and sick, 

3

 Dept. of Army, Field Manual 4-02, Force Health Protection in a Global Environment, para. 4-4.e (Feb. 

13, 2003) (hereinafter FM 4-02). 

4

 Dept. of Army, Field Manual 4-02.6, The Medical Company Tactics, Techniques, and Procedures, para. 

A-4 (August 2002) (hereinafter FM 4-02.6) (emphasis added). 

42 

GC I: Wounded and Sick 
 

military and civilian, in the hands of the enemy must be respected and protected. 

(See also FM 27-10, para. 208) 

4. The rules applicable to civilians connected with medical transports may vary 

depending on whether such persons accompany the armed forces (GC III, art. 

4.A.(4)), are members of the staff of voluntary aid societies either of a 

belligerent State (GC I, art. 26) or of a neutral State (GC I, art. 27), or are 

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

IV. THE HANDLING OF THE WOUNDED AND SICK 

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

1. General: “Members of the armed forces and other persons mentioned in the 

following Article, who are wounded or sick, shall be respected and protected in 

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

2. Respect: to spare, not to attack. It is “unlawful for an enemy to attack, kill, ill 

treat or in any way harm a fallen and unarmed soldier.” (GC I Commentary at 

135). The shooting of wounded soldiers who are out of the fight is illegal. 

Similarly, there is no lawful justification for “mercy killings.” 

3. Protect: to come to someone’s defense; to lend help and support. The enemy 

has an obligation to come to the aid a fallen and unarmed soldier and give him 

such care as his condition requires. (See GC I Commentary at 135) 

4. These duties apply “in all circumstances.” Military considerations do not 

permit any lesser degree of treatment. 

B. Standard of Care. (GC I, art. 12). Protected persons “shall be treated humanely and 

cared for by the Party to the conflict in whose power they may be, without any 

adverse distinction founded on sex, race, nationality, religion, political opinions, or 

any other similar criteria.” (GC I, art. 12). Thus the standard is one of humane 

treatment: “[E]ach belligerent must treat his fallen adversaries as he would the 

wounded of his own army.” (GC I Commentary at 137) 

C. Order of Treatment. (GC I, art. 12) 

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

reasons. (GC I, art. 12). Medical personnel must make the decisions regarding 

medical priority on the basis of their medical ethics. (See also AP I, art. 10) 

43 

GC I: Wounded and Sick 
 

a. May not discriminate against wounded or sick because of “sex, race, 

nationality, religion, political opinions, or any other similar criteria.” (GC 

I, art. 12) 

b. Note the use of the term “adverse” permits favorable distinctions, e.g., 

taking physical attributes into account, such as children, pregnant women, 

the aged, etc. 

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

to be administered.” (GC I, art. 12). Designed to strengthen the principle of 

equal treatment articulated above. 

a. Treatment is accorded using triage principles which provide the greatest 

medical assets to those with significant injuries who may benefit from 

treatment, while those wounded who will die no matter what, and those 

whose injuries are not life-threatening, are given lesser priority. 

b. The U.S. applies this policy at the evacuation stage, as well as at the 

treatment stage. Sick, injured, or wounded enemy are treated and 

evacuated through normal medical channels, but can be physically 

segregated from U.S. or coalition patients. Subject to the tactical situation 

and available resources, enemy personnel will be evacuated from the 

combat zone as soon as possible. Only those injured, sick, or wounded 

enemy who would run a greater health risk by being immediately 

evacuated may be temporarily kept in the combat zone.5 

3. Triage Categories:6 

a. Immediate. Condition demands immediate resuscitative treatment. 

Generally the procedures are short in duration and economical in terms of 

medical resources. Example: control of a hemorrhage from an extremity. 

[Note: NATO divides this category into two groups: Urgent: quick short 

duration life saving care, which is first priority; and Immediate: which 

require longer duration care to save a life.] 

b. Delayed. Treatment can be delayed for 8-10 hours without undue harm. 

Examples: Soft tissue injuries requiring debridement; maxillofacial 

injuries without airway compromise; eye and central nervous system 

injuries. 

5 See FM 4-02.6, para. A-2. 

6 See id. at para. C-3; see also Dept. of Army, Field Manual 8-42, Combat Health Support in Stability 

Operations and Support Operations, para. J-3 (Oct. 27, 1997). 

44 

GC I: Wounded and Sick 
c. Minimal (or Ambulatory). Next to last priority for medical officer care; 

but head of the line at the battle dressing station. (Can be patched up and 

returned to the lines in minutes.) (Major difference with civilian triage.) 

d. Expectant. Injuries are so extensive that even if they were the sole 

casualty, survival would be unlikely. Treatment will address pain and 

discomfort. 

4. The wounded and sick “shall not willfully be left without medical assistance 

and care, nor shall conditions exposing them to contagion or infection be 

created.” (GC I, art. 12) 

a. The first prohibition stems from a recognition that wounded personnel, 

who had not yet received medical treatment, were profitable subjects for 

interrogation. During World War II, the Germans frequently delayed 

medical treatment until after interrogation at their main aircrew 

interrogation center. Such conduct is now expressly forbidden. 

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

sealing off Russian POW camps once typhus or tuberculosis was 

discovered. 

D. Abandoning Wounded and Sick to the Enemy. (GC I, art. 12) 

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

the commander is required to leave behind medical personnel and material to 

assist in their care. 

2. “[A]s far as military considerations permit” – provides a limited military 

necessity exception to this requirement. Thus a commander need not leave 

behind medical personnel if such action will leave his unit without adequate 

medical staff. Nor can the enemy refuse to provide medical care to abandoned 

enemy wounded on the grounds that the enemy failed to leave behind medical 

personnel. The detaining power ultimately has the absolute respect and protect 

obligation. (See GC I Commentary at 142) 

E. Search for Casualties. (GC I, art. 15) 

1. Search, Protection, and Care. (GC I, art. 15) 

a. “At all times, and particularly after an engagement.” Parties have an 

ongoing obligation to search for the wounded and sick as conditions 

45 

GC I: Wounded and Sick 
 

permit. The commander determines when it is possible to do so. This 

mandate applies to all casualties, not just friendly casualties. 

i. The drafters recognized that there were times when military 

operations would make the obligation to search for the fallen 

impracticable. (See GC I Commentary at 151) 

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

not to search for casualties in Iraqi tanks or armored personnel 

carriers because of concern about unexploded ordnance. 

iii. Similar obligations apply to maritime operations (GC II, art. 18). 

“Following each naval engagement at sea, the belligerents are 

obligated to take all possible measures, consistent with the security 

of their forces, to search for and rescue the shipwrecked.”7 

b. The protection requirement refers to preventing pillage of the wounded by 

the “hyenas of the battlefield.” 

c. Care refers to the requirement to render first aid. 

d. Note that the search obligation also extends to searching for the dead, 

again as military conditions permit. 

2. Suspensions of Fire and Local Agreements. (GC I, art. 15) 

a. Suspensions of fire are agreements calling for ceasefires that are 

sanctioned by the Convention to permit the combatants to remove, 

transport, or exchange the wounded, sick and the dead. Such exchanges of 

wounded and sick between parties did occur to a limited extent during 

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

b. Suspensions of fire were not always possible without negotiation and, 

sometimes, the involvement of staffs up the chain of command. 

Consequently, local agreements, an innovation in the 1949 Convention to 

broaden the practice of suspensions of fire by authorizing similar 

agreements at lower command levels, are sanctioned for use by local onscene commanders to remove or exchange wounded and sick from a 

besieged or encircled area, as well as the passage of medical and religious 

personnel and equipment into such areas. GC IV, art. 17, contains similar 

7

 The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M, para. 11.6 (2007). 

46 

GC I: Wounded and Sick 
 

provisions for civilian wounded and sick in such areas. It is this type of 

agreement that was used to permit the passage of medical supplies to the 

city of Sarajevo during the siege of 1992. 

F. Identification of Casualties. (GC I, arts. 16-17) 

1. Parties are required, as soon as possible, to record the following information 

regarding the wounded, sick, and the dead: name, identification number, date of 

birth, date and place of capture or death, and particulars concerning wounds, 

illness, or cause of death. 

2. Forward the information to the Information Bureau required by GC III, art. 122. 

Information Bureaus are established by Parties to the conflict to transmit and to 

receive information/personal articles regarding Prisoners Of War to/from the 

International Committee of the Red Cross’ (ICRC’s) Central Tracing Agency. 

The U.S. employs the National Prisoner of War Information Center (NPWIC) in 

this role. 

3. In addition, Parties are required to forward the following information and 

materials regarding the dead: 

a. Death certificates. 

b. Identification disc. 

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

d. Personal property found on the body. 

4. Handling of the Dead. 

a. Examination of bodies (a medical examination, if possible) is required to 

confirm death and to identify the body. Such examinations can play a 

dispositive role in refuting allegations of war crimes committed against 

individuals. Thus, they should be conducted with as much care as 

possible. 

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

c. Honorable burial. Individual burial is strongly preferred; however, there is 

a military necessity exception which permits burial in common graves, 

e.g., if circumstances, such as climate or military concerns, necessitate it. 

(See GC I Commentary at 177) 

47 

GC I: Wounded and Sick 
d. Mark and record grave locations. 

G. Voluntary Participation of Local Population in Relief Efforts. (GC I, art. 18) 

1. Commanders may appeal to the charity of local inhabitants to collect and care 

for the wounded and sick. Such actions by the civilians must be voluntary. 

Similarly, commanders are not obliged to appeal to the civilians. 

2. Spontaneous efforts on the part of civilians to collect and care for the wounded 

and sick are also permitted. 

3. Ban on the punishment of civilians for participation in relief efforts. This 

provision arose from the fact that the Germans prohibited German civilians 

from aiding wounded airmen. 

4. Continuing obligations of occupying power. Thus, the occupant cannot use the 

employment of civilians as a pretext for avoiding their own responsibilities for 

the wounded and sick. The contribution of civilians is only incidental. (See GC 

I Commentary at 193) 

5. Civilians must also respect the wounded and sick. This is the same principle 

discussed above (GC I, art. 12) vis-à-vis armed forces. This is the only article 

of the Convention that imposes a duty directly on civilians. (See GC I 

Commentary at 191) 

V. STATUS AND PROTECTION OF PERSONNEL AIDING THE WOUNDED AND SICK 

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

wounded and sick. 

1. First category: Medical personnel exclusively engaged in the search for, or the 

collection, transport or treatment of the wounded or sick, or in the prevention of 

disease; staff exclusively engaged in the administration of medical units and 

establishments; chaplains attached to the armed forces (GC I, art. 24); and 

personnel of national Red Cross/Red Crescent Societies and other recognized 

relief organizations (GC I, art. 26). 

a. Respect and protect “in all circumstances.” (GC I, art. 24). This means 

that they must not knowingly be attacked, fired upon, or unnecessarily 

prevented from discharging their proper functions. The accidental killing 

or wounding of such personnel, due to their presence among or in 

proximity to combatant elements actually engaged, by fire directed at the 

latter, gives no just cause for complaint. (FM 27-10, para. 225) 

48 

GC I: Wounded and Sick 
 

b. Status upon capture: Retained Personnel, not POWs. (GC I, art. 28) 

i. This was a new provision in the 1949 convention. The 1864 and 

1906 conventions required immediate repatriation. The 1929 

convention also required repatriation, absent an agreement to retain 

medical personnel. During World War II, the use of these 

agreements became extensive, and very few medical personnel were 

repatriated. Great Britain and Italy, for example, retained 2 doctors, 

2 dentists, 2 chaplains, and 12 medical orderlies for every 1,000 

POWs. 

ii.	 The 1949 convention institutionalized this process. Some 

government experts proposed making medical personnel regular 

POWs, the idea being that wounded POWs prefer to be cared for by 

their countrymen who speak the same language. The other camp, 

favoring repatriation, cited the traditional principle of inviolability— 

that medical personnel were non-combatants. What resulted was a 

compromise: medical personnel were to be repatriated, but if needed 

to treat POWs, they were to be retained and treated at least as well as 

POWs. (See GC I Commentary at 238-40) 

iii.	 Note that medical personnel may only be retained to treat POWs. 

Under no circumstances may they be retained to treat enemy 

personnel. While the preference is for the retained persons to treat 

POWs of their own nationality, the language is sufficiently broad to 

permit retention to treat any POW. (See GC I Commentary at 241) 

c. Repatriation of Medical Personnel. (GC I, arts. 30-31) 

i. Repatriation is the rule; retention the exception. Medical personnel 

are to be retained only so long as required by the health and spiritual 

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

indispensable.8 

ii. GC I, art. 31, states that selection of personnel for return should be 

irrespective of race, religion or political opinion, preferably 

according to chronological order of capture—first-in/first-out 

approach. 

8 See GC I Commentary at 260-261. Since World War II, this 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 THE 

ARMY LAWYER, April 1989, at 5. 

49 

GC I: Wounded and Sick 
 

 

iii. Parties may enter special agreements regarding the percentage of 

personnel to be retained in proportion to the number of prisoners and 

the distribution of the said personnel in the camps. The U.S. practice 

is that retained persons will be assigned to POW camps in the ratio 

of 2 doctors, 2 nurses, 1 chaplain, and 7 enlisted medical personnel 

per 1,000 POWs. Those not required will be repatriated.9 

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

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

medical and religious duties. 

ii. They will receive at least all benefits conferred on POWs, e.g., pay, 

monthly allowances, correspondence privileges. 

iii. They are subject to camp discipline. 

e. Relief. Belligerents may relieve doctors retained in enemy camps with 

personnel from the home country. (GC I, art. 28). During World War II 

some Yugoslavian and French doctors in German camps were relieved. 

(See GC I Commentary at 257) 

f. Continuing obligation of detaining power (GC I, art. 28). The detaining 

power is bound to provide, free of charge, whatever medical attention the 

POWs require. 

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

(GC I, arts. 25 and 29) 

a. These are personnel who have received special training in other medical 

specialties (e.g., orderlies, stretcher bearers) in addition to performing 

other military duties. (While Article 25 specifically refers to nurses, 

nurses are Article 24 personnel if they meet the “exclusively engaged” 

criteria of that article.) 

b. Respect and protect: when acting in their medical capacity. (GC I, art. 25) 

c. Status upon capture: POWs; however, must be employed in medical 

capacity insofar as a need for their special training arises. (GC I, art. 29) 

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 Sick 
 

 

d. Treatment. (GC I, art. 29) 

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

ii. When performing medical duties, they remain POWs, but receive 

treatment under GC III, art. 32 as retained personnel; however, they 

are not entitled to repatriation. 

iii.	 Auxiliaries are not widely used.10 

iv. The U.S. Army does not have any personnel who officially fall into 

the category identified in Article 25.11 

3. Third category: Personnel of aid societies of neutral countries. (GC I, art. 27 

and 32) 

a. Nature of assistance: procedural requirements. (GC I, art. 27) 

i. Consent of neutral government. 

ii. Consent of party being aided. 

iii.	 Notification to adverse party. 

b. Retention prohibited: must be returned “as soon as a route for their return 

is open and military considerations permit.” (GC I, art. 32) 

c. Treatment pending return: must be allowed to perform medical work. (GC 

I, art. 32) 

VI. MEDICAL UNITS AND ESTABLISHMENTS 

A. Protection. 

10 But see W. Hays Parks memorandum, supra note 8, for discussion 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 24 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. REV. 242 

(1994). 

51 

GC I: Wounded and Sick 
1. Fixed Establishments and Mobile Medical Units. (GC I, art. 19) 

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

b. Commanders are encouraged to situate medical units and establishments 

away from military objectives. See also AP I, art. 12, which states that 

medical units will, in no circumstances, be used to shield military 

objectives from attack. 

c. If these units fall into the hands of an adverse party, medical personnel 

will be allowed to continue caring for wounded and sick, as long as the 

captor has not ensured the necessary care. 

d. GC I does not confer immunity from search by the enemy on medical 

units, establishments, or transports. (FM 27-10, para. 221) 

2. Discontinuance of Protection. (GC I, art. 21) 

a. Medical units/establishments lose protection if committing “acts harmful 

to the enemy.” Acts harmful to the enemy are not only acts of warfare 

proper, but also any activity characterizing combatant action, such as 

setting up observation posts, or the use of the hospital as a liaison center 

for fighting troops. (See FM 27-10, para. 258). Other examples include 

using a hospital as a shelter for combatants, or as an ammunition dump. 

(See GC I Commentary at 200 - 201) 

b. Protection ceases only after a warning has been given, and it remains 

unheeded after a reasonable time to comply. A reasonable time varies 

depending on the circumstances, e.g., no time limit would be required if 

fire is being taken from the hospital. (See GC I Commentary at 202) 

c. AP I, art. 13, extends this same standard to civilian hospitals. 

3. Conditions not depriving medical units and establishments of protection: (GC 

I, art. 22) 

a. Unit personnel armed for their own defense against marauders and those 

violating the law of war, e.g., by attacking a medical unit. Medical 

personnel thus may carry small arms, such as rifles or pistols for this 

52 

GC I: Wounded and Sick 
 

purpose. In contrast, placing machine guns, mines, LAAWS, etc., around 

a medical unit would cause a loss of protection.12 

b. Self-Defense Defined. Although medical personnel may carry arms for 

self-defense, they may not employ such arms against enemy forces acting 

in conformity with the law of war. These arms are for their personal 

defense and for the protection of the wounded and sick under their charge 

against persons violating the law of war. Medical personnel who use their 

arms in circumstances not justified by the law of war expose themselves to 

penalties for violation of the law of war and, provided they have been 

given due warning to cease such acts, may also forfeit the protection of the 

medical unit or establishment of which they form part or which they are 

protecting. (See FM 27-10, para. 223) 

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

own personnel. It will not lose its protection, however, if a military guard 

attached to a medical unit guards it. These personnel may be regular 

members of the armed force, but they may only use force in the same 

circumstances as discussed in the previous paragraph.13 

d. Small arms and ammunition taken from wounded may be present in the 

unit. However, such arms and ammunition should be turned in as soon as 

practicable and, in any event, are subject to confiscation. (FM 27-10, 

para. 223) 

e. Presence of personnel from the veterinary service. 

f. Provision of care to civilian wounded and sick. 

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

1. Mobile Medical Units. (GC I, art. 33) 

a. Material of mobile medical units, if captured, need not be returned. This 

was a significant departure from the 1929 Convention which required 

mobile units to be returned. 

b. But captured medical material must be used to care for the wounded and 

sick. First priority for the use of such material is the wounded and sick in 

12 FM 4-02, supra note 3, at para. 4-8. 

13 Id. 

53 

GC I: Wounded and Sick 
 

the captured unit. If there are no patients in the captured unit, the material 

may be used for other patients.14 

2. Fixed Medical Establishments. (GC I, art. 33) 

a. The captor has no obligation to restore this property to the 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 necessity,” they may be used for 

other purposes. 

c. If a fixed medical establishment is converted to other uses, prior 

arrangements must be made to ensure that wounded and sick are cared for. 

Medical material and stores of both mobile and fixed establishments “shall 

not be intentionally destroyed.” No military necessity exception. 

VII. MEDICAL TRANSPORTATION 

A. Medical Vehicles—Ambulances. (GC I, art. 35) 

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

medical function. 

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

and they need not be specially equipped for medical purposes. (See GC I 

Commentary at 281). As ambulances are not always available, any vehicles 

may be adapted and used temporarily for transport of the wounded. During that 

time they will be entitled to protection, subject to the display of the distinctive 

emblem. Thus military vehicles going up to the forward areas with ammunition 

may bring back the wounded, with the important reservation the emblem must 

be detachable, e.g., a flag, so that it may be flown on the downward journey. 

Conversely military vehicles may take down wounded and bring up military 

supplies on the return journey. The flag must them be removed on the return 

journey. 

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

accords them protection. 

14 See GC I Commentary at 274; see also FM 4-02, supra note 3, at para. 4-6. 

54 

GC I: Wounded and Sick 
 

a. Camouflage scenario: Belligerents are only under an obligation to respect 

and protect medical vehicles so long as they can identify them. 

Consequently, absent the possession of some other intelligence regarding 

the identity of a camouflaged medical vehicle, belligerents would not be 

under any obligation to respect and protect it.15 

b. Display the emblem only when the vehicle is being employed on medical 

work. Misuse of the distinctive symbol is a war crime. (See FM 27-10 at 

para. 504) 

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

a. Captor may use the vehicles for any purpose. However, the material of 

mobile medical units falling into the hands of the enemy must be used 

only for the care of the wounded and sick, and does not constitute war 

booty, until GC I ceases to be operative. (See FM 27-10, para. 234) 

b. If the vehicles are used for non-medical purposes, the captor must ensure 

proper care of the wounded and sick they contained, and, of course, ensure 

that the distinctive markings have been removed. 

B. Medical Aircraft. (GC I, art. 36) 

1. Definition: Aircraft exclusively employed for the removal of wounded and sick 

and for the transport of medical personnel and equipment. 

2. Protection. 

a. Marked with protected emblem. 

b. However, protection ultimately depends on an agreement: medical 

aircraft are not to be attacked if “flying at heights, times and on routes 

specifically agreed upon between the belligerents.” (GC I, art. 36). The 

differing treatment accorded to aircraft, as opposed to ambulances, is a 

function of their increased mobility and consequent heightened fears about 

their misuse. Also the speed of modern aircraft makes identification by 

color or markings useless. Only previous agreement could afford any real 

safeguard. 

15 See FM 4-02, supra note 3, at para. 4-6. 

55 

GC I: Wounded and Sick 
 

 

 

c. Without such an agreement, belligerents 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 ensure protection. The GC I Commentary also says 

“exclusively engaged” means flying without any armament.17 

e. Reporting information acquired incidentally to the aircraft’s humanitarian 

mission does not cause the aircraft to lose its protection. Medical 

personnel are responsible for reporting information gained through casual 

observation of activities in plain view in the discharge of their duties. This 

does not violate the law of war or constitute grounds for loss of protected 

status. For example, a Medevac aircraft could report the presence of an 

enemy patrol if the patrol was observed in the course of their regular 

mission and was not part of an information gathering mission outside their 

humanitarian duties. 

f. Flights over enemy or enemy-occupied territory are prohibited unless 

agreed otherwise. 

3. Summons to land. 

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.” PETER DORLAND AND JAMES NANNEY, DUST OFF: ARMY 

AEROMEDICAL EVACUATION IN VIETNAM 85-86 (1982). Medical aircraft (and vehicles) took fire from 

Panamanian paramilitary forces (DIGBATS) during Operation Just Cause. CENTER FOR ARMY LESSONS 

LEARNED, OPERATION JUST CAUSE: LESSONS LEARNED, p. III-14, (October 1990). By contrast, in the 

Falklands each of the hospital ships (four British and two Argentinean) had one dedicated medical aircraft 

with Red Cross emblems. Radar ID was used to identify these aircraft because of visibility problems. 

Later it was done by the tacit agreement of the parties. Both sides also used combat helicopters 

extensively, flying at their own risk. No casualties occurred. SYLVIE-STOYANKA JUNOD, PROTECTION 

OF THE VICTIMS OF THE ARMED CONFLICT IN THE FALKLANDS 26-27 (1984). 

17 See also AP I, art. 28(3); Dept. of Army, Field Manual 8-10-6, Medical Evacuation in a Theater of 

Operations – Tactics, Techniques, and Procedures, para. A-4 (Apr. 14, 2000) (the mounting or use of 

offensive weapons on dedicated Medevac vehicles and aircraft jeopardizes the protection afforded by the 

Conventions. Offensive weapons include, but are not limited to, machine guns, grenade launchers, hand 

grenades, and light anti-tank weapons). 

56 

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

use of medical aircraft—must be obeyed. 

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

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

be allowed to continue. 

4. Involuntary landing. 

a. Occurs as the result of engine trouble or bad weather. Aircraft may be 

used by captor for any purpose. Materiel will be governed by the 

provisions of GC I, arts. 33 and 34. (See GC I Commentary at 293) 

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

c. Wounded and sick must still be cared for. 

5. The inadequacy of GC I, art. 36, in light of growth of use of medical aircraft, 

prompted an overhaul of the regime in AP I (AP I, arts, 24 - 31). 

a. Establishes three overflight regimes: 

i. Land controlled by friendly forces (AP I, art. 25): No agreement 

between the parties is required for the aircraft to be respected and 

protected; however, the article recommends that notice be given, 

particularly if there is a SAM threat. 

ii. Contact Zone (disputed area) (AP I, art. 26): Agreement required for 

absolute protection. However, enemy is not to attack once aircraft 

identified as medical aircraft. 

iii.	 Land controlled by enemy (AP I, art. 27): Overflight agreement 

required. Similar to GC I, art. 36(3) requirement. 

b. Bottom line: Known medical aircraft shall be respected and protected 

when performing their humanitarian functions. 

c. Optional distinctive signals, e.g., radio signals, flashing blue lights, 

electronic identification, are all being employed in an effort to improve 

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

57 

GC I: Wounded and Sick 
 

C. Hospital ships. Military hospital ships, which are to be marked in the manner 

specified by GC II, art. 43, may in no circumstances be attacked and captured but 

must be respected and protected, provided their names and descriptions have been 

notified to the Parties to the conflict ten days before those ships are employed. (GC I, 

art. 20; GC II, art. 22) 

1. Hospital ships must be used exclusively to assist, treat, and transport the 

wounded, sick, and shipwrecked. The protection to which hospital ships are 

entitled shall not cease unless they are used to commit, outside their 

humanitarian duties, acts harmful to the enemy. (GC II, art. 34) 

2. Traditionally, hospital ships could not be armed, although crew members could 

carry light individual weapons for the maintenance of order, for their own 

defense, and that of the wounded, sick, and shipwrecked. However, due to the 

changing threat environment in which the Red Cross symbol is not recognized 

by various hostile groups and actors as indicating protected status, the United 

States views the manning of hospital ships with defensive weapons systems, 

such as anti-missile defense systems or crew-served weapons to defend against 

small boat threats, as prudent force protection measures, analogous to arming 

crew members with small arms, and consistent with the humanitarian purpose of 

hospital ships and the duty to safeguard the wounded and sick.18 

3. GC II, art. 34 provides that hospital ships may not use or possess “secret codes” 

as means of communication, so that belligerents could verify that hospital ships’ 

communications systems were being used only in support of their humanitarian 

function and not as a means of communicating information that would be 

harmful to the enemy. However, subsequent technological advances in 

encryption and satellite navigation, while recognized as problematic, have not 

been specifically addressed by treaty. As a practical matter, modern 

navigational technology requires that the traditional rule prohibiting “secret 

codes” be understood to not include modern encryption communication 

systems.19 

4. Coastal Rescue Craft. Small craft employed by a State or by the officially 

recognized lifeboat institutions for coastal rescue operations are to be respected 

and protected, so far as operational requirements permit. (GC II, art. 27) 

5. Any hospital ship in a port which falls into the hands of the enemy is to be 

authorized to leave the port. (GC II, art. 29) 

18 NWP 1-14M, supra note 7, at para. 8.6.3. 

19 Id. 

58 

GC I: Wounded and Sick 
 

 

6. Retained Personnel and Wounded and Sick Put Ashore. The religious, medical, 

and hospital personnel of hospital ships retained to care for the wounded and 

sick are, on landing, subject to GC I. (GC II, art. 37). Other forces put ashore 

become subject to GC I. (GC II, art. 4) 

VIII. DISTINCTIVE EMBLEMS 

A. Emblem of the Conventions and Authorized Exceptions. (GC I, art. 38) 

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

2. Red Crescent. Authorized exception. 

3. Red Lion and Sun. Authorized exception employed by Iran, although it has 

since been replaced by the Red Crescent. 

4. Red Crystal. On 14 January 2007, the Third Additional Protocol to the 1949 

Geneva Conventions (AP III) entered into force. The United States is a party 

to AP III, which established an additional 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 danger of substituting 

national or religious symbols for the emblem of charity, which must be neutral. 

There was also concern that the proliferation of symbols would undermine the 

universality of the Red Cross and diminish its protective value. (See GC I 

Commentary at 301). In the various Middle East conflicts involving Israel and Egypt, 

however, the “Shield of David” has been respected.20 

C. Identification of Medical and Religious Personnel. (GC I, art. 40) 

20 See FM 4-02, supra note 3, at para. 4-6. 

59 

GC I: Wounded and Sick 
 

1. Note the importance of these identification mechanisms. The two separate and 

distinct protections given to medical and religious personnel are, as a practical 

matter, accorded by the armband and the identification card.21 

a. The armband provides protection from intentional attack on the battlefield. 

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

2. Permanent medical personnel, chaplains, personnel of National Red Cross and 

other recognized relief organizations, and relief societies of neutral countries. 

(GC I, art. 40) 

a. Armband displaying the distinctive emblem. 

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

personnel. 

c. Confiscation of ID card by the captor prohibited. Confiscation renders 

determination of “retained person” status extremely difficult. 

3. Auxiliary personnel. (GC I, art. 41) 

a. Armband displaying the distinctive emblem in miniature. 

b. ID documents indicating special training and temporary character of 

medical duties. 

D. Marking of Medical Units and Establishments. (GC I, art. 42). The distinctive flag 

of the Convention (e.g., the Red Cross) may be hoisted only over such medical units 

and establishments as are entitled to be respected under GC I. It may be accompanied 

by the national flag of the Party to the conflict. However, if captured, the unit will fly 

only the Red Cross flag. 

E. Marking of Medical Units of Neutral Countries. (GC I, art. 43) 

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

assisted. 

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

21 See id. at para. 4-5. 

60 

GC I: Wounded and Sick 
 

F. Authority over the Emblem. (GC I, art. 39). Article 39 makes it clear that the use of 

the emblem by medical personnel, transportation, and units is subject to “competent 

military authority.” The commander may give or withhold permission to use the 

emblem, and the commander may order a medical unit or vehicle camouflaged. (See 

GC I Commentary at 308). While the Convention does not define who is a competent 

military authority, it is generally recognized that this authority is held no lower than 

the brigade commander (generally O-6) level.22 

G. The emblem of the red cross on a white ground and the words “Red Cross” or 

“Geneva Cross” may not be employed, either in time of peace or in time of war, 

except to indicate or to protect the medical units and establishments, the personnel 

and material protected by GC I and other Conventions dealing with similar matters. 

(GC I, art. 44 (which also lists exceptions to the rule). See also AP I, art. 38, and AP 

II, art. 12, which prohibit the improper use of the distinctive emblems, such as the red 

cross) 

H. “The use by individuals, societies, firms or companies . . . of the emblem . . . shall be 

prohibited at all times.” (GC I, art. 53) 

FOR FURTHER READING: 

A. Joint Chiefs of Staff, Joint Publication 4-02, Health Service Support (31 October 

2006). 

B. Dept. of Army, Field Manual 4-02.1, Combat Health Logistics (September 2001). 

22 See id. at para. 4-6. 

61 

GC I: Wounded and Sick 
 

 

 

GENEVA CONVENTION III: PRISONERS OF WAR
 

I. OBJECTIVES
 

A. Become familiar with the historic influences on the development of protections for 

prisoners of war (POWs) during periods of armed conflict. 

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

when that status is conferred. 

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

1. Combatants during international armed conflict; 

2. Combatants during internal armed conflict; and 

3. Detainees during ANY type of conflict. 

II. HISTORY OF PRISONERS OF WAR 

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

became the victor’s ‘chattel.’”2

 The captive could be killed, sold, or put to work and 

the discretion of the captor. No one was as helpless as an enemy prisoner of war.3 

1 See WILLIAM FLORY, PRISONERS OF WAR: A STUDY IN THE DEVELOPMENT OF INTERNATIONAL LAW 

(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. While crossing 

Europe in disguise, he was captured by Leopold, Duke of Austria. Leopold and his ally, the Holy Roman 

Emperor, Henry VI, entered into a treaty with Richard on St. Valentine's Day, 1193, whereby England 

would pay them £100,000 in exchange for their king. This amount then equaled England's revenues for 

five years. The sum was ultimately paid under the watchful eye of Richard's mother, Eleanor of 

Aquitaine, and he returned to English soil on March 13, 1194. See M. Foster Farley, Prisoners for Profit: 

Medieval Intrigue Quite often Focused upon Hopes of Rich Ransom, MIL. HISTORY (Apr. 1989), at 12. 

Richard’s confinement by Leopold did seem to ingrain some compassion for future prisoners of war he 

captured. Richard captured 15 French knights in 1198. He ordered all the knights blinded but one. 

Richard spared this knight one eye so he could lead his companions back to the French army. This was 

considered an act of clemency at the time. MAJOR PAT REID, PRISONER OF WAR (1984). 

62 

GC III: Prisoners of War 
 

 

 

B. Greek, Roman, and European theologians and philosophers began to write on the 

subject of POWs. However, treatment of POWs was still by and large left to military 

commanders.4 

C. The American War of Independence. For the colonists, it was a revolution. For the 

British, it was an insurrection. To the British, the colonists were the most dangerous 

of criminals, traitors to the empire, and threats to state survival, and preparations were 

made to try them for treason. However, British forces begrudgingly recognized the 

colonists as belligerents and no prisoner was tried for treason. Colonists that were 

captured were, however, subject to inhumane treatment and neglect. There were 

individual acts of mistreatment by American forces of the British and Hessian 

captives; however, General Washington appears to have been sensitive to, and to have 

had genuine concern for POWs. He took steps to prevent abuse.5 

D. The first agreement to establish prisoner of war (POW) treatment guidelines was 

probably in the 1785 Treaty of Friendship between the U.S. and Prussia.6 

E. American Civil War. At the outset, the Union forces did not view the Confederates 

as professional Soldiers deserving protected status. They were considered nothing 

more than armed insurrectionists. As southern forces began to capture large numbers 

of Union prisoners, it became clear to Abraham Lincoln that his only hope for 

securing humane treatment for his troops was to require the proper treatment of 

Confederate Soldiers. President Lincoln issued General Orders No. 100, 

“Instructions of the Government of Armies of the United States in the Field,” known 

as the Lieber Code, after its author, Francis Lieber. 

1. Although the Lieber Code went a long way in bringing some humanity to 

warfare, many traditional views regarding POWs prevailed. For example, 

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 Catholic University of America. (on file with the 

TJAGLCS library) [hereinafter Grady]. 

5

 JOHN C. MILLER, TRIUMPH OF FREEDOM (1948); REV. R. LIVESAY, THE PRISONERS OF 1976; A RELIC 

OF THE REVOLUTION COMPILED FROM THE JOURNAL OF CHARLES HERBERT (1854); SYDNEY GEORGE 

FISHER, THE STRUGGLE FOR AMERICAN INDEPENDENCE (1908). 

6 See HOWARD S. LEVIE, 60 INTERNATIONAL LAW STUDIES, DOCUMENTS ON PRISONERS OF WAR 8 

(1979) [hereinafter Levie, DOCUMENTS ON PRISONERS OF WAR] (providing additional test interpreting the 

Third Geneva Convention). 

63 

GC III: Prisoners of War 
 

 

 

 

 

 

 

 

to give no quarter, in great straits, when his own salvation makes it impossible 

to cumber himself with prisoners.”7 

2. Confederate policy called for captured black Soldiers to be returned or sold into 

slavery and for white Union officers serving with black troops to be prosecuted 

for “exciting servile insurrection.”8 Captured blacks that could not prove they 

were free blacks were sold into slavery. Free blacks were not much better off. 

They were treated like slaves and forced to perform labor to support the 

Confederate war effort. In response to this policy, Article 58 of the Lieber Code 

stated that the Union would take reprisal for any black POWs sold into slavery 

by executing Confederate prisoners. Very few Confederate prisoners were 

executed in reprisal. However, Confederate Soldiers were often forced into 

hard labor as a reprisal. 

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

system.9 The Union stopped paroling southern Soldiers for several reasons, 

most notably its significant numerical advantage. It was fighting a war of 

attrition and POW exchanges did not support that effort. This Union decision 

may have impacted on the poor conditions in southern POW camps because of 

the additional strain on resources at a time when the Confederate army could 

barely sustain itself. Some historians point out that the Confederate POW 

guards were living in conditions only slightly better than their Union captives.10 

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

Americans associate POW maltreatment during the Civil War with the 

Confederate camp at Andersonville. However, maltreatment was equally brutal 

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 in 

the Field, 1 AM. J. INT’L L. 13 (1907) (providing a summary of who Doctor Francis Lieber was and the 

evolution of the Lieber Code). 

8

 Vol. V, The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate 

Armies at 807-808 (Gov. Printing Office 1880-1901). 

9

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

until 1863, failing primarily because of Confederate refusals to parole black POWs, and parolees 

returning to the battlefield too quickly. See HENRY P BEERS, THE CONFEDERACY, GUIDE TO THE 

ARCHIVES OF THE GOVERNMENT OF THE CONFEDERATE STATES OF AMERICA 234 (GSA 1986). 

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

11 Over one-half of the Northern 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 MIL. L. REV. 77 

(1975). See also U.S. Sanitary Commission, Narrative of Privations and Sufferings of United States 

Officers and Soldiers while Prisoners of War in the Hands of the Rebel Authorities, S. RPT. NO. 68, 40th 

64 

GC III: Prisoners of War 
 

 

 

5. Despite its national character and Civil War setting, the Lieber Code went a 

long way in influencing European efforts to create international rules dealing 

with the conduct of war. 

F. The first international attempt to regulate the handling of POWs occurred in 1907 

with the promulgation of the Hague Regulations Respecting the Laws and Customs of 

War on Land (HR). Although the HR gave POWs a definite legal status and 

protected them against arbitrary treatment, the Regulations were primarily concerned 

with the methods and means of warfare rather than the care of the victims of war. 

Moreover, the initial primary concern was with the care of the wounded and sick 

rather than POWs.12 

G. World War I. The Hague Regulations proved insufficient to address the treatment of 

the nearly 8,000,000 POWs. 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 convention 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 international pressure but 

ultimately refused to ratify it. The humane treatment of POWs was largely a 

western concept. During the war, the Japanese were surprised at the concern for 

POWs. To many Japanese, surrendering Soldiers were traitors to their own 

countries and a disgrace to the honorable profession of arms.14 As a result, most 

CONG., 3RD SESS. (1864), for a description of conditions suffered by POWs during the Civil War. 

FLORY, supra note 2, at 19, n. 60 also cites the Confederate States of America, Report of the Joint Select 

Committee Appointed to Investigate the Condition and Treatment of Prisoners of War (1865). 

12 GC III Commentary at 6. 

13 G.I.A.D. DRAPER, THE RED CROSS CONVENTIONS 11 (1958).
 

14 Grady, supra note 4, at 103.
 

65 

GC III: Prisoners of War 
 

POWs in the hands of the Japanese during World War II were forced to undergo 

extremely inhumane treatment. 

2. In Europe, the Soviet Union had refused to sign the 1929 Geneva Convention 

and therefore the Germans did not apply it to Soviet POWs. In Sachsenhausen 

alone, some 60,000 Soviet POWs died of hunger, neglect, flogging, torture, and 

shooting in the winter of 1941-42. The Soviets retained German POWs in the 

U.S.S.R. some twelve years after the close of hostilities.15 Generally speaking, 

the regular German army, the Wehrmacht, did not treat American POWs too 

badly. The same cannot be said about the treatment Americans experienced at 

the hands of the German S.S. or S.D.16 

3. The post-World War II war crimes tribunals determined that international law 

regarding the treatment of POWs had become customary international law 

(CIL) by the outset of hostilities. Therefore, individuals could be held 

criminally liable for the mistreatment of POWs whether or not the perpetrators 

or victims were from States that had signed the various international agreements 

protecting POWs.17 

J. Geneva Convention Relative to the Treatment of Prisoners of War in 1949 (GC III). 

The experience of World War II resulted in the expansion and codification of the laws 

of war in four Geneva Conventions of 1949. International armed conflict triggers the 

full body and protections of the Geneva Conventions.18 In such a conflict, signatories 

must respect the Convention in “all circumstances.” This language means that parties 

must adhere to the Convention unilaterally, even if not all belligerents are signatories. 

There are provisions that allow non-signatories to decide to be bound.19 Moreover, 

with the exception regarding reprisals, all parties must apply 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 Protocol. It creates no new protections for prisoners of war, but does, 

15 DRAPER, supra note 13, 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. 

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GC III: Prisoners of War 
 

 

however, have the effect, of expanding the definition of “status,” that is who is 

entitled to the POW protections in international armed conflict.20 

III. PRISONER OF WAR STATUS AS A MATTER OF LAW 

A. Important Terminology. 

1. Prisoners of War: A detained person as defined in GC III, art. 4. (See also FM 

27-10, para. 61) 

2. Civilian Internees: 1. A civilian who is interned during armed conflict or 

occupation for security reasons, for protection, or because he or she has 

committed an offense against the detaining power. 2. A term used to refer to 

persons interned and protected in accordance with the Geneva Convention 

Relative to the Protection of Civilian Persons in Time of War, 12 August 1949 

(Geneva Convention).21 

3. Retained personnel: Medical and religious personnel retained by the Detaining 

power with a view of assisting POWs.22 

4. Detainees:

 23 Any person captured, detained, held, or otherwise under the 

control of DoD personnel (military, civilian, or contractor employee). It 

includes any person held during operations other that war. This is the default 

term to use when discussing persons who are in custody of U.S. armed forces. 

5. Refugees: Persons who by reason of real or imagined danger have left home to 

seek safety elsewhere.24 

6. Dislocated civilian: Dislocated civilian is a generic term that includes a 

displaced person, an evacuee, expellee, internally displaced person, a migrant, a 

20 AP I, arts. 43-45. 

21 JOINT CHIEFS OF STAFF, JOINT PUB. 1-02, DEPARTMENT OF DEFENSE DICTIONARY OF MILITARY AND 

ASSOCIATED TERMS 88 (1 June 1987) [hereinafter JOINT PUB. 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 JOINT PUB. 1-02, supra note 21, at 453. See also GC IV, art. 44; 1951 UN Convention Relating to the 

Status of Refugees, 189 U.N.T.S. 137. 

67 

GC III: Prisoners of War 
 

refugee, or a stateless person.25 A displaced person is a civilian who is 

involuntarily outside the national boundaries of his or her country.26 

B. In order to achieve POW status, the individual must be the right kind of person in the 

right kind of conflict. The question of status is enormously important. There are two 

primary benefits of POW status. First, POWs receive immunity for warlike acts (i.e., 

any acts of killing and breaking things are not criminal). Second, POWs are entitled 

to all the rights, privileges, and protections under GC III. One of those rights is that 

the prisoner is no longer a lawful target. 

C. The Right Kind of Conflict. 

1. Common Article 2: The “Conventions shall apply to all cases of declared war 

or of any other armed conflict which may arise between two or more of the 

High Contracting Parties. . . .” (emphasis added). 

a. Whether or not a conflict rises to the level of Common Article 2 is a 

question of fact.27 Factors one should consider are: 

i. Has international recognition of the belligerents occurred? 

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 JOINT PUB. 1-02, supra note 21, 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 adversaries falling within the scope of Article 4. GC III Commentary at 23. 

68 

GC III: Prisoners of War 
 

v. 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 been part of the rationale of 

the U.S. position stated in a 7 February 2002 Presidential 

Memorandum. The official U.S. position was that the al-Qaida 

network was not a state party to the Geneva Conventions; it was a 

foreign terrorist group. On the other hand, 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 “party,” 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 captured 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 

occupation.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 international law protections, 

primarily combatant immunity, were extended to their forces. 

2. Common Article 3. This article contains minimal protections, which does not 

include combatant immunity. Protections are limited to internal armed 

conflicts. Though not defined in the article, armed conflict is something more 

than mere riots or banditry. There is no absolute test as to what constitutes 

armed conflict, but a significant factor is whether the government uses its armed 

forces in response to the conflict. Note that the United States position is that all 

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_House/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 Conventions 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.; see also DOD DIR. 2310.01E, supra note 23, para 4.2. 

31 AP I, art. 1(4). 

69 

GC III: Prisoners of War 
 

DoD 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 

protections of Common Article 3. Again, keeping in mind the drafters’ 

perspective, a newly established State with limited armed forces and 

resources might be less likely to want to extend protections to 

revolutionary powers. Some developing nations expressed concern that 

the super powers of the time, namely the U.S. and U.S.S.R., might, as a 

subterfuge for intervention, assert that they needed to become involved in 

the internal conflict to come to the aid of the insurgents pursuant to 

Common Article 3. 

b. 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), Article 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 armed 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 

conflict. 

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 28, para. 2(b). Although the President found 

that the provisions of the Geneva Conventions would apply to the conflict against the Taliban, they were 

not considered lawful combatants given their failure to adhere to the criteria of GC III, art. 4(a)(2). 

70 

GC III: Prisoners of War 
 

Geneva Conventions. However, when the OEF coalition forces defeated 

the Taliban regime, they lost control of Afghanistan and ceased to exist as 

the de facto government of Afghanistan. With the new Afghan 

government headed by President Karzai firmly in place as the government 

of Afghanistan, any remaining armed conflict between the coalition forces 

and organized armed elements of the Taliban regime arguably could be 

characterized as an armed conflict of a non-international character (i.e., a 

Common Article 3 internal armed conflict). 

b. In regards to the al-Qaida foreign terrorist group, the characterization is 

more complex. Prior to September 11, 2001, operations by and against 

terrorists were not traditionally treated as armed conflict (neither 

international nor non-international armed conflict). Terrorists have been 

treated as criminals and responses viewed as “law enforcement.” Any 

military involvement was traditionally viewed as a military operation 

other than war, and therefore was treated as operations below the armed 

conflict spectrum. Clearly, the U.S. is in an “armed conflict” with alQaida; however, the armed conflict with al-Qaida does not fit neatly into 

the existing armed conflict paradigms. Al-Qaida is not a State and 

therefore any direct U.S. action versus al-Qaida network lacks the 

requirement of two or more States actually involved in the conflict for 

there to be an international armed conflict. Additionally, the noninternational armed conflict paradigm traditionally involved the concepts 

of “civil wars” or “internal conflicts.” Has the military action taken 

against al-Qaida been absorbed into the international armed conflict 

(Common Article 2) with the Taliban, or is the conflict with al-Qaida best 

described as an armed conflict not of an international character (Common 

Article 3)? In Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the United 

States Supreme Court ruled that Common Article 3 is binding within the 

conflict against al-Qaida. If captured, any member of al-Qaida or other 

entity fighting the United States will be given the protections of Common 

Article 3 per DoDD 2310.01E.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 DOD DIR. 2310.01E, supra note 23. Note the language in the memo as mirroring Common Article 3, 

that “application of the proceeding provisions shall not affect the legal status of the parties to a conflict” 

Id. 

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GC III: Prisoners of War 
 

 

until May 1, 2003, with the proclamation by President Bush that major 

combat operations in Iraq had ended. 

b. The issue of when the official occupation of Iraq began can be debated. 

The Presidential proclamation, however, in conjunction with the firm 

control of Iraq by American and allied forces, clearly led to a state of 

occupation no matter how it was termed. Therefore, the occupation 

triggering language found in Common Article 2 continued to be in force, 

and GC III protected captured members of the Iraqi army. 

c. The authority to capture Iraqi insurgents and foreign fighters in Iraq after 

June 28, 2004 was documented in United Nations Security Council 

Resolution (UNSCR) 1546. This resolution, along with agreements 

between the United States and the interim Iraqi government, became the 

legal basis for capturing personnel in Iraq until December 31, 2009. 

D. The Right Kind of Person. 

1. Once a conflict rises 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. Having 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, 

art. 44(3) only obligates a combatant to distinguish himself from the civilian population “while they are 

engaged in an attack or in a military operation preparatory to an attack, or in any action carried out with a 

view to combat.” AP Commentary at 527. 

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GC III: Prisoners of War 
 

d. Conducting their operations in accordance with the laws and customs of 

war. 

2. In addition, numerous other persons detained by military personnel are entitled 

to POW status if “they have received authorization from the armed forces which 

they accompany.” (i.e., possess a GC identity card from a belligerent 

government). Specific examples include: 

a. Contractors;37 

b. Journalists;38 

c. Civilian members of military aircraft crews;39 

d. Merchant marine and civil aviation crews;40 

e. Persons accompanying armed forces (dependents);41 and, 

f. Mass Levies (Levée 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, one may have to apply a different 

standard; our coalition partners may use AP I’s criteria. AP I only requires combatants to carry their arms 

openly in the attack and to be commanded by a person responsible for the organization’s actions, comply 

with the laws of war, and have an internal discipline system. Therefore, guerrillas may be covered. 

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

38 See Hans-Peter Gasser, The Protection of Journalists Engaged in Dangerous Professional Missions, 

INT’L REV. RED CROSS (Jan/Feb. 1983), at 3. See also KATE WEBB, ON THE OTHER SIDE (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 

Accompanying Armed Forces in the Field, ARMY LAW. (July 1994), at 29. See generally, Memorandum 

for the Assistant Judge Advocate General (Civil Law), Subj: Civilians in 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 levée en masse operates. GC III does not discriminate the right to detain by 

gender, and therefore females may be detained as well. 

73 

GC III: Prisoners of War 
 

 

 

 

 

 

iii.	 Carry their arms openly; and, 

iv. Respect the laws and customs of war. 

g. This is NOT an all-inclusive list. One’s status as a POW is a question of 

fact. One factor to consider is whether or not the individual is in 

possession of an identification card issued by a belligerent government. 

Prior to 1949, possession of an identification card was a prerequisite to 

POW status. 

4. Medical and religious personnel (Retained Personnel) receive the protections of 

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

44 See GC I Commentary at 218-58. See generally, ALMA BACCINO-ASTRADA, MANUAL ON THE RIGHTS 

AND DUTIES OF MEDICAL PERSONNEL IN ARMED CONFLICTS (ICRC, 1982); and Liselotte B. Watson, 

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

45 See Levie, supra note 6, at 82-84; Richard R. Baxter, So-Called 'Unprivileged Belligerency': Spies, 

Guerrillas, and Saboteurs, MIL. L. REV. BICENTENNIAL ISSUE 487 (1975)(Special Ed.); Albert J. Esgain 

and Waldemar A. Solf, The 1949 Geneva Convention Relative to the Treatment of Prisoners of War: Its 

Principles, Innovations, and Deficiencies, MIL. L. REV. BICENTENNIAL ISSUE 303 (1975)(Special Ed.). 

46 See Memorandum, HQDA, DAJA-IA, 22 January 1991, Subj: Distinction Between Defectors/Deserters 

and Enemy Prisoners of War. See also Levie, supra note 6, at 77 - 78; James D. Clause, The Status of 

Deserters Under the 1949 Geneva Prisoner of War Convention, 11 MIL. L. REV. 15 (1961); L.B. 

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

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 HOWARD S. 

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GC III: Prisoners of War 
 

 

 

 

c. Military advisors;48 

d. Belligerent diplomats;49 

e. Mercenaries50 (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: “Should any doubt arise as to whether persons, having 

committed a belligerent act and having fallen into the hands of the enemy, 

belong to any of the categories enumerated in Article 4, such persons shall 

enjoy the protection of the present Convention until such time as their status has 

been determined by a competent tribunal.” 

2. AR 190-852 provides guidance on how to conduct an Article 5 Tribunal. 

a. A General Court-Martial Convening Authority appoints the tribunal. 

LEVIE, 59 INTERNATIONAL LAW STUDIES, PRISONERS OF WAR IN INTERNATIONAL ARMED CONFLICT 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 armed forces of the adverse Party, 

would not be considered a POW. The military representative could be ordered out of, or removed from 

the theater of war. On the other hand, if the military representative takes part in the hostilities and acts as 

a “military advisor” and renders “military assistance to the armed forces opposing those of the belligerent 

Power into whose hands they have fallen, it could be argued that they fall within the ambit of Article 4(A) 

and that they are therefore entitled to prisoner-of-war status.” Levie, supra note 47, at 83-84. 

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 POW 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 MIL. L. REV. 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]. 

75 

GC III: Prisoners of War 
 

 

 

b. There are to be three voting members, the president must be a field grade 

officer, and one nonvoting recorder, preferably a Judge Advocate. 

c. The standard of proof is “preponderance of the evidence.” The regulation 

does not place the burden of proof or production on either party. The 

tribunal should not be viewed as adversarial as the recorder need not be a 

judge advocate and there is no right to representation for the subject whose 

status is in question. 

d. If a Combatant Commander has his own regulation or policy on how to 

conduct an Article 5 Tribunal, the Combatant Commander’s regulation 

would control. For example, see CENTCOM Regulation 27-13. 

IV. PRIMARY PROTECTIONS PROVIDED TO PRISONERS OF WAR 

A. Protection “Top Ten.”53 

1. Humane Treatment. 54 (GC III, art. 13) 

2. Prohibition against medical 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, see Major Geoffrey S. Corn and 

Major Michael L. Smidt, “To Be or Not to Be, That is the Question,” Contemporary Military Operations 

and the Status of Captured Personnel, ARMY LAW. June 1999. 

54 The requirement that POWs must at all times be humanely treated is the 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 UNITED NATIONS WAR CRIMES 

COMMISSION, XI LAW REPORTS OF TRIALS OF WAR CRIMINALS 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 curiosity, INT’L REV. RED CROSS, No. 295, (July/Aug. 

1993), at 288. This article focuses on the issue of photographing prisoners of war. 

76 

GC III: Prisoners of War 
 

 

6. Respect for person and honor (specific provision for female POWs included). 

(GC III, art. 14) 

7. No Reprisals. (GC III, art. 13) 

8. No Renunciation of Rights or Status. (GC III, art. 7) 

9. The Concept of the Protecting Power, especially the ICRC. (GC III, art. 8) 

10. Immunities 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 the self defense/force protection 

umbrella. 

2. The protection and treatment rights, as well as the obligations begin “. . . [F]rom 

the time they fall into the power of the enemy . . .”57 (GC III, art. 5) 

3. POWs can be secured with handcuffs (flex cuffs) and blindfolds, as well as 

shirts pulled down to the elbows, as long as it is done humanely (cannot be for 

humiliation/intimidation purposes). 

a. Protect against public curiosity. 

i. Art. 13 does not per se prohibit photographing an POW. The 

prohibition extends to photographs that degrade or humiliate a POW. 

56 GC III does not specifically mention combatant immunity. Rather, it is considered to be customary 

international law. Moreover, it can be inferred from the cumulative effect of protections within GC III. 

For example, Article 13 requires that prisoners not be killed, and Article 118 requires their immediate 

repatriation after cessation of hostilities. Although Article 85 does indicate that there are times when 

prisoners of war may be prosecuted for precapture violations of the laws of the detaining power, the 

Commentary accompanying Article 85 limits this jurisdiction to only two types of crimes: a prisoner may 

be prosecuted only for (1) war crimes, and (2) crimes that have no connection to the state of war. See 

Corn and Smidt, supra note 53 at n. 124. 

57 During Desert Storm some Iraqi Commanders complained that the Coalition forces did not fight “fair” 

because our forces engaged them at such distances and with such overwhelming force that they did not 

have an opportunity to surrender. Additionally, some complained that they were merely moving into 

position to surrender. However, the burden is upon the surrendering party make his intentions clear, 

unambiguous, and unequivocal to the capturing unit. 

77 

GC III: Prisoners of War 
 

 

 

 

With respect to POWs, there is some value added in disseminating 

photographs since it gives family members assurance that their loved 

one is alive. Bottom line: strict guidelines required.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. 18) 

a. Weapons, ammunition, and equipment or documents with intelligence 

value will be confiscated and turned over to the nearest intelligence unit. 

(AR 190-8) 

b. POWs and retained personnel are allowed to retain personal effects such 

as jewelry, helmets, canteens, protective mask and chemical protective 

garments, clothing, identification cards and tags, badges of rank and 

nationality, and Red Cross brassards, articles having personal or 

sentimental value and items used for eating except knives and forks. 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/counterintelligence 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 note 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, Subj: Protective Clothing and Equipment for EPWs. See also GC 

III Commentary at 166, n. 2. 

61 GC IV, art. 97 essentially allows the military to seize, but not confiscate, personal property of those 

civilians protected by GC IV. The difference is important. Confiscate means to take permanently. 

Seizing property is a temporary taking. Property seized must be receipted for and returned to the owner 

after the military necessity of its use has ended. If the property cannot be returned for whatever reason, 

the seizing force must compensate the true owner of the property. See Elyce K.K. Santerre, From 

Confiscation to Contingency Contracting: Property Acquisition on or Near the Battlefield, 124 MIL L. 

78 

GC III: Prisoners of War 
 

 

 

 

 

5. 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? Continue 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 Law Handbook for a more 

detailed discussion. 

d. The U.S. military ID card doubles as the Geneva Conventions 

identification card. Note: Categories are I to V, which corresponds to 

respective rank. (GC III, art. 60) 

REV. 111 (1989), for a more detailed discussion of the distinction between, requisition, seizure, and 

confiscation of private property and when it is lawful to do each. 

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 Judge Advocate General, DAJA-IA, Subj: 

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

64 15 UNITED NATIONS WAR CRIMES COMMISSION, LAW REPORTS OF TRIALS OF WAR CRIMINALS 101 n. 

4 (1949) See Stanley J. Glod and Lawrence J. Smith, Interrogation Under the 1949 Prisoners of War 

Convention, 21 MIL. L. REV. 145 (1963); GC II Commentary at 163-64; Levie, supra note 47, at 106-09. 

79 

GC III: Prisoners of War 
 

 

 

 

V. POW CAMP ADMINISTRATION AND DISCIPLINE 

A. Responsibility. (GC III, art. 12). The State (Detaining Power) is responsible for the 

treatment of POWs. POWs are not in the power of the individual or military unit that 

captured them. They are in the hands of the State itself, of which the individuals or 

military units are only agents.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 POWs were accidentally killed while moving ammunition away from 

their billets. 

3. POWs must be assembled into camps based upon their nationality, language, 

and customs. (GC III, art. 22) 

a. Generally, cannot segregate prisoners based on religion or ethnic 

background.67 However, segregation by these beliefs may be required 

especially when they are a basis for the conflict. Such as in Yugoslavia: 

Serbs, Croats, and Muslims; Rwanda: Hutus, Tutsis; and Iraq: Sunni and 

Shia. 

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 POWs during the Persian Gulf War as human shields in violation of GC III, 

arts. 19 and 23. See Iraqi Mistreatment of POWs, DEP'T OF STATE DISPATCH, Jan. 28, 1991, at 56 

(Remarks by State Department Spokesman Margaret Tutwiler). See also DEP'T OF DEF., FINAL REPORT 

TO CONGRESS: CONDUCT OF THE PERSIAN GULF WAR (April 1992), at 619 - 620. 

67 GC III, art. 34. One of the most tragic events of religions discrimination by a detaining power for 

religious reasons was the segregation by the Nazis of Jewish-American POWs. Several Jewish American 

Soldiers were segregated from their fellow Americans and sent to slave labor camps where “they were 

beaten, stared and many literally worked to death.” MITCHELL G. BARD, FORGOTTEN VICTIMS: THE 

ABANDONMENT OF AMERICANS IN HITLER’S CAMPS (1994). See also Trial of Tanaka Chuichi and Two 

Others in UNITED NATIONS WAR CRIMES COMMISSION, XI LAW REPORTS OF WAR CRIMES TRIALS 62 

(1949) (convicting Japanese prison guards, in part, for intentionally violating the religious practices of 

Indians of the Sikh faith). 

80 

GC III: Prisoners of War 
 

 

 

 

 

instigated by North Korean POW communist activists. Scores of 

prisoners sympathetic to South Korea were murdered by North Korean 

POW extremist groups. During the rioting, POWs captured the camp 

commander, Brigadier General Dodd.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. Tobacco? 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 prepare 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 WALTER G. HERMES, TRUCE TENT AND FIGHTING FRONT (1966), at 232-63; 

The Communists War in POW Camps, Dep't of State Bulletin, Feb 6, 1953, at 273; Harry P. Ball, 

Prisoner and War Negotiations: The Korean Experience and Lesson, in 62 International Law Studies: 

The Use of Force, Human Rights and General International Legal Issues, Vol. II, 292- 322 (Lillich & 

Moore, eds., 1980). 

69 The U.S. does not provide POWs with a canteen, but instead provides each POW with a health and 

comfort pack. Memorandum, HQDA-IP, 29 Oct. 94, Subj: Enemy Prisoner of War Health and Comfort 

Pack. 

70 See Memorandum, HQDA-IO, 12 Sept. 94, Subj: Tobacco Products for Enemy Prisoners of War. 

During Desert Storm, the 301st Military Police POW camp required 3500 packages of cigarettes per day. 

Operation Deserts Storm: 301st Military Police EPW Camp Briefing Slides, available in TJAGSA, ADIO 

POW files. See also WILLIAM G. PAGONIS, MOVING MOUNTAINS: LESSONS IN LEADERSHIP AND 

LOGISTICS FROM THE GULF WAR 10 (1992), for LTG Pagonis' views about being told he must buy 

tobacco for POWs. 

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GC III: Prisoners of War 
 

 

9. Due process. (GC III, arts. 99 - 108) 

10. Hygiene (GC III, art. 29); separate baths, showers and toilets must be provided 

for women prisoners of war. 

D. POW Accountability.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 to theater-specific SOPs to provide 

additional guidance on the appointing authority and routing system for the 

investigation or inquiry into a POW death or serious injury. 

4. Reprisals against POWs are prohibited. (GC III, art. 13) 

E. Transfer of POWs. (GC III, arts. 46 - 48) 

1. Belligerent can only transfer POWs to nations which are parties to the 

Convention. 

2. Detaining Power remains responsible for POW care. 

a. There is no such thing as a “U.N.” or “coalition” POW.72 

b. To ensure compliance with the GC III, U.S. Forces routinely establish 

liaison teams and conduct GC III training with allied forces prior to 

transfer POWs to that nation.73 

71 See Vaughn A. Ary, Accounting for Prisoners of War: A Legal Review of the United States Armed 

Forces Identification and Reporting Procedures, ARMY LAW., August 1994, at 16, for an excellent 

review of the United States system of tracking POWs. See also Robert G. Koval, The National Prisonerof-War Information Center, MILITARY POLICE (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, Innovations, and Deficiencies, MIL. L. REV. BICENT. ISSUE 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 Transfer of Prisoners of War/Civilian Internees, signed at Seoul February 12, 1982, T.I.A.S. 

82 

GC III: Prisoners of War 
 

 

 

F. Complaints and Prisoners’ Representatives. 

1. The primary rights and duties/oversight responsibilities of Prisoner 

Representatives are set forth in the following articles of GC III: 57, 78-81, 98, 

104, 107, 125, and 127. 

2. There is the potential for conflict of the Prisoner Representative duties with the 

Code of Conduct Senior Ranking Officer (SRO) requirement.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 compelled them to work. 

b. NCOs can be compelled to supervise only. 

c. Enlisted can be compelled to do manual labor. 

d. If they work, they must be paid. 

e. Retained Personnel shall not be required to perform any work outside their 

medical or religious duties. This is an absolute prohibition that includes 

work connected to the administration and upkeep of the camp. (GC I, art. 

28(c)) 

2. Compensation.

 76 (GC III, art. 60). 8 days paid vacation annually? (GC III, art. 

53) 

10406. See also UNITED STATES FORCES KOREA, REGULATION 190-6, ENEMY PRISONERS TRANSFERRED 

TO REPUBLIC OF KOREA CUSTODY (Apr. 3, 1992). See also DOD PERSIAN GULF REPORT, at 583. 

74 See DEP’T OF DEFENSE INSTRUCTION 1300.21, CODE OF CONDUCT TRAINING AND EDUCATION (Jan. 8, 

2001). 

75 See Howard S. Levie, The Employment of Prisoners of War, 23 MIL. L. REV. 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, MIL. HISTORY (Feb. 1987), at 58. 

83 

GC III: Prisoners of War 
 

 

3. Type of Work. 

a. Work cannot be unhealthy or dangerous, unless the POW volunteers. 

Work cannot be humiliating. (GC III, art. 52) 

b. Work such as camp administration, installation, and maintenance is 

authorized, as well as work relating to agriculture; commercial business, 

and arts, and crafts; and domestic service without restriction to military 

character or purpose.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.
 

84 

GC III: Prisoners of War 
 

 

2. Judicial sanctions. 

a. POWs: Pre-capture v. post-capture. 

i. Pre-capture: General court-martial or federal or state court 

prosecution if they have jurisdiction over U.S. Soldier for the same 

offense.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), 

UCMJ (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 commission.] 

b. Due process required. 

i. POWs: same due process as that provided to the Detaining Power’s 

own military forces. (GC III, arts. 99 - 108) 

ii. Right to appeal. (GC III, art. 106) 

I. Escape. 

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, art. 85. The reservation in 

essence would deny a POW their protected status if convicted of a war crime. North Vietnam used their 

reservation under Art. 85 to threaten on several occasions the trial of American pilots as war criminals. 

See MARJORIE WHITEMAN, 10 DIGEST OF INTERNATIONAL LAW 231 - 234 (1968); J. Burnham, Hanoi's 

Special Weapons System: threatened execution of captured American pilots as war criminals, NAT. REV., 

Aug. 9, 1966; Dangerous decision: captured American airmen up for trial?, NEWSWEEK, July 25, 1966; 

Deplorable and repulsive: North Vietnam plan to prosecute captured U.S. pilots as war criminals, TIME, 

July 29, 1966, at 12 - 13. See generally, Joseph Kelly, PW's as War Criminals, MIL. REV. (Jan. 1972), at 

91. 

80 See Major Timothy C. MacDonnell, Military Commissions and Courts-Martial: A Brief Discussion on 

the Constitutional and Jurisdictional Distinctions Between the Two Courts, ARMY LAW., Mar. 2002. For 

a historical use of military commissions, see Major Michael O. Lacey, Military Commissions: A 

Historical Survey, ARMY LAW., Mar. 2002. 

85 

GC III: Prisoners of War 
 

 

 

1. When is an escape deemed successful?81 (GC III, art. 91) 

a. Service member has rejoined their, or an ally’s, armed forces; 

b. Service member has left the territory of the Detaining Power or its ally; 

(i.e., entered a neutral country’s territory); 

c. Service member has joined a ship flying the flag of the Power on which he 

depends, or of an Allied Power, in the territorial waters of the Detaining 

Power, the said ship not being under the control of the last named Power.82 

2. Unsuccessful escape. 

a. Only disciplinary punishment for the escape 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 Between 1942 and 1946, 2,222 German POWs escaped from American camps in the U.S. At the time 

of repatriation, 28 still were at large. One remained at large and unaccounted for in the U.S. until 1995! 

None of the German POWs ever successfully escaped. During World War II, 435,788 German POWs 

were held on American soil (about 17 divisions worth). Of all the Germans captured by the British in 

Europe, only one successfully escaped and returned to his own forces. This German POW did this by 

jumping a prisoner train in Canada and crossing into the U.S., which at that time was still neutral. 

ALBERT BIDERMAN, MARCH TO CALUMNY: THE STORY OF AMERICAN POW'S IN THE KOREAN WAR 90 

(1979); Jack Fincher, By Convention, the enemy within never did without, SMITHSONIAN (June 1995), at 

127. See also ARNOLD KRAMMER, NAZI PRISONERS OF WAR IN AMERICA (1994). 

See A. Porter Sweet, From Libby to Liberty, MIL. REV. (Apr. 1971), at 63, for an interesting recount of 

how 109 union Soldiers escaped a Confederate POW camp during the Civil War. See ESCAPE AND 

EVASION: 17 TRUE STORIES OF DOWNED PILOTS WHO MADE IT BACK (Jimmy Kilbourne, ed. 1973), for 

stories of servicemen who successful avoided capture after being shot down behind enemy lines or those 

who successfully escaped POW camps after capture. The story covers World War I through the Vietnam 

War. According to this book, only 3 Air Force pilots successfully escaped from captivity in North Korea. 

Official Army records show that 670 Soldiers captured managed to escape and return to Allied control. 

However, none of the successful escapees had escaped from permanent POW camps. See Paul Cole, I 

POW/MIA Issues, The Korean War 42 (Rand Corp. 1994). See also George Skoch, Escape Hatch 

Found: Escaping from a POW camp in Italy was one thing. The next was living off a war-torn land 

among partisans, spies, Fascists and German Patrols, MIL. HISTORY (Oct. 1988), at 34. 

82 See SWISS INTERNMENT OF PRISONERS OF WAR: AN EXPERIMENT IN INTERNATIONAL HUMANE 

LEGISLATION AND ADMINISTRATION (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. 

86 

GC III: Prisoners of War 
 

For example, a POW may wear civilian clothing 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 to return successfully escaped 

POW to same theater of operations. 

4. Use of force against POWs during an escape attempt or camp rebellion is 

lawful. Use of deadly force is authorized “only when there is no other means of 

putting an immediate stop to the attempt.”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. § 757 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 United States or any of its allies, or . . . 

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

85 Rex v. Krebs (Magistrate’s Court of the County of Renfrew, Ontario, Canada), 780 Can. C.C. 279 

(1943). The accused was a German POW interned in Canada. He escaped and during his escaped he 

broke into a cabin to get food, articles of civilian clothing, and a weapon. The court held that, since these 

acts were done in an attempt to facilitate his escape, he committed no crime. 

86 GC III Commentary at 246. Compare Trial of Albert Wagner, XIII THE UNITED NATIONS WAR 

CRIMES COMMISSION, LAW REPORTS OF THE TRIAL OF WAR CRIMINALS, Case No. 75, 118 (1949), with 

Trial of Erich Weiss and Wilhelm Mundo, XIII THE UNITED NATIONS WAR CRIMES COMMISSION, LAW 

REPORTS OF THE TRIAL OF WAR CRIMINALS, 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 shall always be preceded by warnings appropriate to the circumstances." GC III, 

at 42. 

87 For a thorough list of resources on this issue, see BIBLIOGRAPHY ON REPATRIATION OF PRISONERS OF 

WAR (1960), a copy of which is maintained by the TJAGLCS Library. 

87 

GC III: Prisoners of War 
 

 

a. Seriously sick and wounded POWs whose recovery is expected to take 

more than 1 year (GC III, art. 110). 

b. Incurably sick and wounded (GC III, art. 110). 

c. Permanently disabled, physically or mentally (GC III, art. 110). 

d. Used in Korean War: 6640 North Korean and Chinese for 684 UN 

Soldiers during what was known as Operation Little Switch. 

e. This provision is routinely ignored. 

2. After cessation of hostilities. 

a. GC III, art. 118, provides: “Prisoners of war shall be released and 

repatriated without delay after the cessation of active hostilities.” 

b. Rule followed after World War II. Result: thousands of Russian POWs 

executed by Stalin upon forced repatriation. 

c. U.N. command in Korea first established principle that POWs do not have 

to be repatriated, if they do not so wish.88 

88 See R.R. Baxter, Asylum to Prisoners of War, BRITISH YEARBOOK INT’L L. 489 (1953). 

88 

GC III: Prisoners of War 
GC III: Prisoners of War 

89 
 

 

 

GENEVA CONVENTION IV: CIVILIANS ON THE BATTLEFIELD 

I. OBJECTIVES 

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

conflict. 

B. Understanding of the legal definition of “civilian.” 

C. Understanding of consequences of civilians taking direct part in hostilities. 

II. DEVELOPMENT OF CIVILIAN PROTECTIONS DURING ARMED 

CONFLICT 

A. Historical Background. The concept of protecting civilians during conflict is ancient. 

Historically, three considerations motivated implementation of such protections. 

1. Desire of sovereigns to protect their citizens. Based on reciprocal self-interests, 

ancient powers entered into agreements, followed codes of chivalry, or issued 

instructions to soldiers in the hope similar rules would protect their own land 

and people if they fell under their enemy’s control. 

2. Facilitation of strategic success. Military and political leaders recognized that 

enemy civilians who believed that they would be well treated were more likely 

to surrender and cooperate with occupying forces. Sparing the vanquished from 

atrocities facilitated ultimate victory. 

3. Desire to minimize the devastation and suffering caused by war. Throughout 

history, religious leaders, scholars, and military professionals advocated 

limitations on the devastation caused by conflict. This rationale emerged as a 

major trend in the development of the law of war in the mid-nineteenth century 

and continues to be a major focus of advocates of “humanitarian law.” 

B. The Lieber Code. Prior to the American Civil War, although treatises existed, there 

was no written “Law of War.” Only customary law existed regarding the need to 

distinguish between combatants and civilians. 

1. Dr. Francis Lieber, a law professor at Columbia College in New York at the 

outset of American Civil War, advised President Lincoln on law of war matters. 

In November 1862, Dr. Lieber and four General Officers draft the Lieber Code. 

On April 24, 1863, the United States published the Lieber Code as General 

Order No. 100, Instructions for the Government of the Armies of the United 

90 

GC IV: Civilians on the Battlefield 
States in the Field. Incorporating customary law and contemporary practices, it 

was the first official laws of war published and implemented by a State. 

2. The Lieber Code contained 157 articles and ten sections. The first two sections 

contain specific language regarding civilians. 

a. Section I, Martial 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 citizen is to be spared in 

person, property, and honor as much as the exigencies of war will admit.” (Art. 

22) 

a. War is not carried on by arms alone. It is lawful to starve the hostile 

belligerent, armed or unarmed, so that it leads to the speedier subjection of 

the enemy. (Art. 17) 

b. When a commander of a besieged place expels the non-combatants, in 

order to lessen the number of those who consume his stock of provisions, 

it is lawful, though an extreme measure, to drive them back, so as to 

hasten on the surrender. (Art. 18) 

c. Commanders, whenever admissible, inform the enemy of their intention to 

bombard a place, so that the non-combatants, and especially the women 

and children, may be removed before the bombardment commences. But 

it is no infraction of the common law of war to omit thus to inform the 

enemy. Surprise may be a necessity. (Art. 19) 

d. The citizen or native of a hostile country is thus an enemy, as one of the 

constituents of the hostile state or nation, and as such is subjected to the 

hardships of the war. (Art. 21) 

e. Nevertheless, as civilization has advanced during the last centuries, so has 

likewise steadily advanced, especially in war on land, the distinction 

between the private individual belonging to a hostile country and the 

hostile country itself, with its men in arms. The principle has been more 

and more acknowledged that the unarmed citizen is to be spared in person, 

property, and honor as much as the exigencies of war will admit. (Art. 22) 

91 

GC IV: Civilians on the Battlefield 
f. Private citizens are no longer murdered, enslaved, or carried off to distant 

parts, and the inoffensive individual is as little disturbed in his private 

relations as the commander of the hostile troops can afford to grant in the 

overruling demands of a vigorous war. (Art. 23) 

g. The almost universal rule in remote times was, and continues to be with 

barbarous armies, that the private individual of the hostile country is 

destined to suffer every privation of liberty and protection and every 

disruption of family ties. Protection was, and still is with uncivilized 

people, the exception. (Art. 24) 

h. All wanton violence committed against persons in the invaded country, all 

destruction of property not commanded by the authorized officer, all 

robbery, all pillage or sacking, even after taking a place by main force, all 

rape, wounding, maiming, or killing of such inhabitants, are prohibited 

under the penalty of death, or such other severe punishment as may seem 

adequate for the gravity of the offense. A soldier, officer, or private, in the 

act of committing such violence, and disobeying a superior ordering him 

to abstain from it, may be lawfully killed on the spot by such superior. 

(Art. 44) 

C. Civilian Protection in the Modern Jus in Bello. By the early twentieth century, two 

methodologies for regulation of the conduct of war developed under international 

law. 

1. The Hague Tradition. The Hague Tradition developed a focus on limiting the 

means and methods used in combat. Named for the series of treaties produced 

at the 1899 and 1907 Hague Conferences, instruments of the Hague Tradition 

restrict Parties’ conduct of combat operations. The Hague treaties contain 

regulations regarding the means and methods of warfare during hostilities 

(regarding protection of civilian property) and protection of civilians during 

occupation. General civilian protections are not a focus of the Hague Tradition. 

a. Protections During Hostilities. 

i. No seizure or destruction of civilian property unless imperatively 

demanded by military necessity. (HR, art. 23) 

ii. No use of arms and projectiles (against population centers) 

calculated to cause unnecessary suffering. (HR, art. 23) 

iii.	 No bombardment of undefended places. (HR, art. 25) 

92 

GC IV: Civilians on the Battlefield 
 

iv. No forcing enemy nationals to assist in the war effort against their 

own nation. (HR, art. 23) 

v. All necessary measures must be taken to spare, as far as possible, 

religious, medical, or cultural structures. (HR, art. 27) 

vi. All necessary measures must be taken to spare, as much as possible, 

places where wounded and sick are collected. (HR, art. 27) 

vii.	 No pillaging. (HR, art. 28) 

b. Protections of Civilians During Occupation. “[T]erritory is considered 

occupied when it is actually placed under the authority of the hostile 

army.” (HR, art. 42) 

i. Duty to ensure public safety. (HR, art. 43) 

ii. No coercion of information. (HR, art. 44) 

iii.	 No forcing inhabitants of occupied territory to swear an oath of 

allegiance. (HR, art. 45) 

iv. No pillaging. (HR, art. 47) 

v. No general submission for the acts of an individual, subgroup, or 

group. (HR, art. 50) 

vi. Family honor, property rights, and religious freedom must be 

respected. (HR, art. 46) 

2. The Geneva Tradition. The second methodology, the Geneva Tradition, focuses 

on treatment of war victims in the hands of enemy armed forces. Prior to World 

War II, the Geneva Conventions of 1864,119062 and 19293 afforded protections 

to civilians only when aiding wounded soldiers. 

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 reprinted in THE LAWS OF 

ARMED CONFLICTS 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. 

93 

GC IV: Civilians on the Battlefield 
 

 

III. FOURTH GENEVA CONVENTION, 1949 

A. World War II exposed civilians to increasingly destructive methods of warfare. The 

most compelling factor in the decision to include civilians in the Geneva 

Conventions, however, was the abominable fate that civilians suffered while at the 

hands of their nations’ enemies.4 

B. International Armed Conflict. 

1. “Civilian” Defined. Although the concept of distinction between combatants 

and civilians lies at the very foundation of the law of war, GC IV contains no 

definition of who falls within the category of “civilian.”5 

a. The AP I Definition. 

i. By 1974, it was apparent that the lack of a definition of “civilian” in 

GC IV was inadequate, and jeopardized the principle of distinction.6 

As a result, in 1977, AP I provided a definition in Art. 50(1) stating: 

“A civilian is any person who does not belong to one of the 

categories referred to in Article 4(A)(1), (2), (3) and (6) of the Third 

Convention and in Article 43 of this Protocol.” 

ii.	 Art. 50(1), therefore, adopts a “negative” definition. The definition 

results in that the following persons, generally considered to be 

lawful combatants, do not qualify as “civilians” for purposes of the 

law of war: 

A. Members of the armed forces of parties to the conflict;7 

3 See 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

 JOHN NORTON MOORE, SOLVING THE WAR PUZZLE 91 (2004) ("World War II, with the associated 

Holocaust, produced at least forty million deaths. As many as 1,700 cities and towns and 70,000 villages 

were devastated in the Soviet Union. Over 40 percent of the buildings were destroyed in forty-nine of 

Germany's largest cities and many suffered much worse."). 

5

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

6

 AP Commentary remarks: “As we have seen, the principle of the protection of the civilian population is 

inseparable from the principle of the distinction which should be made between military and civilian 

persons. In view of the latter principle, it is essential to have a clear definition of each of these 

categories.” AP Commentary at 610 (emphasis added). 

7

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

94 

GC IV: Civilians on the Battlefield 
 

B. Members of militias and organized resistance movements 

belonging to a Party to the conflict;8 

C. Members of regular armed forces belonging to governments 

not recognized by the Detaining Power;9

 and 

D. Inhabitants of non-occupied territory who spontaneously take 

up arms to resist invading forces; so-called levées en masse.

10 

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

or a civilian. 

b. Unlawful combatants? 

i. Neither the Geneva Conventions nor AP I recognize or define a third 

category of “unlawful combatants.” 11 

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

defined the term.12 

iii.	 The U.S. Congress previously defined “unlawful enemy combatant” 

for purposes of trial by military commission in the Military 

Commissions Act of 2006.13 In 2009, the Military Commissions Act 

was amended, and instead defined the following terms: 

A. Privileged Belligerent. The term ‘privileged belligerent’ means 

an individual belonging to one of the eight categories 

8 Id. art. 4(A)(2). To qualify for 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 openly; and (4) conduct 

operations in accordance with the laws of war. Id. arts. 4(A)(2)(a),(b),(c), and (d). 

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

10 Id. art. 4(A)(6). Levées 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. 

95 

GC IV: Civilians on the Battlefield 
 

enumerated in Article 4 of the Geneva Convention Relative to 

the Treatment of Prisoners of War. 

B. Unprivileged Enemy Belligerent. The term ‘unprivileged 

enemy belligerent’ means an individual (other than a privileged 

belligerent) who: 

1. Has engaged in hostilities against the United States or its 

coalition partners; 

2. Has purposefully and materially supported hostilities 

against the United States or its coalition partners; or 

3. Was a part of al Qaeda at the time of the alleged offense 

under this chapter.14 

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 

against 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 

harm 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 takes 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. 

96 

GC IV: Civilians on the Battlefield 
 

B. The AP I test is closely 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 “for 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 hostilities. 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 his 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 during 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 between 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) [hereinafter Law 

of War Memorandum]. 

18 Law of War Memorandum, supra note 17. But see U.S. DEP’T OF DEFENSE, INSTR. 1100.22 GUIDANCE 

FOR DETERMINING WORKFORCE MIX 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 nondiscretionary nature performed in direct support of combat operations is not taking direct part in 

hostilities). 

97 

GC IV: Civilians on the Battlefield 
 

nation 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 experts20 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 elements 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, International 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 Humanitarian Law (2006), available at 

http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/direct-participation-report_res/$File/directparticipation-guidance-2009-icrc.pdf. [hereinafter ICRC Interpretive Guidance]. 

22 The ICRC Interpretive Guidance states, “The interim 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. 

98 

GC IV: Civilians on the Battlefield 
 

inflict death, injury or destruction on persons or objects protected 

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 regarding 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 protection to “persons taking no active part in hostilities, including 

members of the armed forces who have laid down their arms and those 

placed in hors de combat.” 

b. Additional Protocol II (AP II). There is no clear definition of civilian in 

AP II; however, AP II, art. 1, states that it applies “in the territory of a 

High Contracting Party between its armed forces and dissident armed 

forces or other organized armed groups.” 

c. ICRC Interpretive Guidance. 

i. The ICRC Interpretive Guidance states that Common Article 3 

implies that “both State and non-State parties have armed forces 

distinct from the civilian population.”23 The guidance follows by 

concluding that Common Article 3 “thus implies a concept of 

civilian comprising those individuals ‘who do not bear arms’ on 

behalf of a party to the conflict.”24 

23 Id. at 28. 

24 Id. at 29. 

99 

GC IV: Civilians on the Battlefield 
 

 

ii. It states that within AP II, art. 1, the term “‘armed forces’ is 

restricted to State armed forces, whereas the armed forces of nonState parties are referred to as ‘dissident armed forces’ or ‘other 

organized 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 Hostilities.” 

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 Commentary states that “as regards substance and structure, 

[art. 13] corresponds to 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 same 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. 

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iii.	 The U.S. has not issued a formal response or opinion regarding the 

ICRC Interpretive Guidance. 

IV. CIVILIAN CONTRACTORS IN THE AREA OF OPERATIONS30 

A. Army Regulation 715-9, Contractors Accompanying the Force, para. 3-3d, (Oct. 29, 

1999), states: “In the context of the law of war, contracted support service personnel 

are civilians accompanying the force. They may be used to perform only selected 

combat support and combat service support activities. They may not be used in or 

undertake any role that could jeopardize their status as civilians accompanying the 

force.” Although drafted when the U.S. employed the “active part” test,31 the 

regulation does not employ the term. 

1. Prohibition against contractors performing “inherently governmental” functions. 

a. Army Regulation 715-9, Contractors Accompanying the Force, para. 3-3d 

(Oct. 29, 1999), explains in its glossary of terms that: 

[f]unctions inherent to, or necessary for the sustainment of combat 

operations, that are performed under combat conditions or in 

otherwise uncontrolled situations, and that require direct control by 

the military command structure and military training for their proper 

execution, are considered inherently governmental. This includes 

functions performed exclusively by military (active and reserve) who 

are trained for combat and the use of deadly force, where 

performance by a contractor or civilian would violate their noncombatant status under the Geneva Conventions or represent an 

inappropriate risk to military operations. 

B. Field Manual 3-100.21 (100-21), Contractors on the Battlefield, para. 6-2 (Jan. 2003), 

states that contractors cannot “take an active role in hostilities but retain their inherent 

right of self defense.” 

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. 

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C. 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 contractor may 

be authorized to provide security services for other than uniquely military 

functions.” 

2. The Instruction leaves unaddressed, however, exactly what functions are 

uniquely military and whether such functions are context or theater-dependent. 

The Instruction instead states: “Whether a particular use of contract security 

personnel to protect military assets is permissible is dependent on the facts and 

requires legal analysis.” The Instruction then cites variables such as the nature 

of the operation the type of conflict, and surrounding legal agreements such as 

status of forces agreements. 

3. Ultimate approval for use of contractors as security appears to rest with 

Combatant Commanders or their general officer designees. 

D. Department of Defense Instruction 1100.22.

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. Contractors 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 

discretion, and can significantly affect the life, liberty, or property of 

private persons or international relations, they cannot be legally 

contracted.36 

32 U.S. DEP’T OF DEFENSE, INSTR. 3020.41, CONTRACTOR PERSONNEL AUTHORIZED TO ACCOMPANY 

U.S. ARMED FORCES (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). 

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c. A decision [does not require substantial discretion and] is not inherently 

governmental if it can be limited or guided by existing policies, 

procedures, directions, orders, or other guidance that identify specific 

ranges of acceptable decisions or conduct and subject the discretionary 

authority to final approval or regular oversight by government officials. 

2. Federal Acquisition Regulation (FAR). Contracts shall not be used for the 

performance of inherently governmental functions.37 

a. Although not all inclusive, the following are examples of inherently 

governmental functions: 

i. Direct conduct of criminal investigations, control of prosecutions, 

and performance of adjudicatory functions other than those relating 

to arbitration or other methods of alternative dispute resolution. 

ii.	 Command of military forces, especially the leadership of military 

personnel, or direction or control of other Federal government 

employees. 

iii.	 The conduct of foreign relations and the determination of foreign 

policy. 

iv. The direction and control of intelligence and counter-intelligence 

operations.38 

b. The FAR requires agencies to include procedures requiring the agency 

head or designated requirements official to provide the contracting officer, 

concurrent with the statement of work, a written determination that none 

of the functions to performed are inherently governmental.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 GENERAL SERVS. ADMIN. ET AL., FEDERAL ACQUISITION REGULATION 7.503(a) (May 2006). 

38 Id. at 7.503(c). 

39 Id. at 7.503(e). 

40 DEFENSE FEDERAL ACQUISITION REGULATION SUPPLEMENT (1998 ed., revised May 31, 2007). 

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ii.	 Shall include a determination that none of the functions to be 

performed are exempt from private sector performance, as addressed 

in DoDI 1100.22.41 

V. CONCLUSION 

A. The loss of protections of civilians engaging in hostilities on the battlefield, and the 

increasing use of civilian contractors to conduct various activities in the midst of 

hostilities, will continue to be a debated area in current and future operations. 

41 Id. at 207.503. 

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GC IV: Civilians on the Battlefield 
105 

GC IV: Civilians on the Battlefield 
 

 

GC IV: OCCUPATION AND POST-CONFLICT GOVERNANCE 

I. OBJECTIVES 

A. Understanding the legal requirements for the existence of an occupation. 

B. Familiarity with the legal obligations and requirements of the Occupying Power. 

C. Understanding the application of the parts and sections, and corresponding 

protections, found within the Geneva Convention for the Protection of Civilians. 

II. OCCUPATION DEFINED 

A. General. Belligerent occupation is the military occupation of enemy territory: 

“Territory is considered occupied when it is actually placed under the authority of the 

hostile army. The occupation extends only to the territory where such authority has 

been established and can be exercised.” (HR, art. 42; FM 27-10, para. 351) 

1. Commencement of Occupation is a Question of Fact. A state of occupation 

exists when two conditions are satisfied: first, the invader has rendered the 

invaded government incapable of publicly exercising its authority; and second, 

the invader has successfully substituted its own authority for that of the 

legitimate government. (FM 27-10, para. 355) 

2. Occupation = Invasion + Firm Control. The radius of occupation is 

determined by the effectiveness of control; occupation must be actual and 

effective. (FM 27-10, para. 356) 

B. Law. The law of belligerent occupation refers to those provisions of customary or 

conventional international law that regulate the conduct of a belligerent in occupied 

territory. 

C. Proclamation Not Required. No proclamation of occupation is legally necessary, but 

the fact of military occupation should be made known (FM 27-10, para. 357). In 

post-WWII Germany, General Eisenhower issued Proclamation Number 1. In 

Operation Iraqi Freedom, L. Paul Bremer, civilian administrator of the Coalition 

Provisional Authority (CPA) issued Coalition Provisional Authority Regulation 

Number 11

 on 16 May 2003. 

1

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

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D. 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 maintenance of law and order and proper 

administration of the occupied territory. (FM 27-10, para. 358) 

2. Annexation or the establishment of puppet governments is prohibited. (GC IV, 

art. 47) 

Pursuant to my authority as Administrator of the Coalition Provisional Authority (CPA), relevant 

U.N. Security Council resolutions, including Resolution 1483 (2003), and the laws and usages of 

war, I hereby promulgate the following: 

Section 1, The Coalition Provisional Authority 

1) The CPA shall exercise powers of government temporarily in order to provide for the effective 

administration of Iraq during the period of transitional administration, to restore conditions of 

security and stability, to create conditions in which the Iraqi people can freely determine their own 

political future, including by advancing efforts to restore and establish national and local institutions 

for representative governance and facilitating economic recovery and sustainable reconstruction and 

development. 

2) The CPA is vested with all executive, legislative and judicial authority necessary to achieve its 

objectives, to be exercised under relevant U.N. Security Council resolutions, including Resolution 

1483 (2003), and the laws and usages of war. This authority shall be exercised by the CPA 

Administrator. 

3) As the Commander of Coalition Forces, the Commander of U.S. Central Command shall directly 

support the CPA by deterring hostilities; maintaining Iraq’s territorial integrity and security; 

searching for, securing and destroying weapons of mass destruction; and assisting in carrying out 

Coalition policy generally. 

Section 2, The Applicable Law 

Unless suspended or replaced by the CPA or superseded by legislation issued by democratic 

institutions of Iraq, laws in force in Iraq as of April 16, 2003 shall continue to apply in Iraq insofar 

as the laws do not prevent the CPA from exercising its rights and fulfilling its obligations, or conflict 

with the present or any other Regulation or Order issued by the CPA. 

Section 3, Regulations and Orders issued by the CPA 

1) In carrying out the authority and responsibility vested in the CPA, the Administrator will, as 

necessary, issue Regulations and Orders. Regulations shall be those instruments that define the 

institutions and authorities of the CPA. Orders are binding instructions issued by the CPA. 

Regulations and Orders will remain in force until repealed by the Administrator or superseded by 

legislation issued by democratic institutions of Iraq. Regulations and Orders issued by the 

Administrator shall take precedence over all other laws and publications to the extent such other 

laws and publications are inconsistent. The Administrator may also from time to time issue Public 

Notices. . . . 

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E. Termination. Occupation does not end upon cessation of hostilities, but continues 

until full sovereignty of the occupied area is returned to the displaced sovereign, or 

until sovereignty is assumed by another State. 

1. “In the case of occupied territory, the application of the present Convention 

shall cease one year after the general close of military operations. . .” (GC IV, 

art. 6(2)) 

2. But, AP I, art. 3(b) of purports to replace GC IV, art. 6(2). Article 3(b) rejects 

the one-year expiration, extending application of the Conventions and Protocol 

until “termination of the occupation.”2 

3. The Occupant is bound to apply certain provisions throughout the duration of 

occupation (i.e., humane treatment, fair trial, protection against forced transfers 

or deportations); U.S. policy is to continue to apply all aspects of law 

throughout the occupation. 

III. AUTHORITY OF OCCUPANT 

A. “The authority of the legitimate power having in fact passed into the hands of the 

occupant, the latter shall take all the measures in his power to restore, and ensure, as 

far as possible, public order and safety, while respecting, unless absolutely 

prevented, the laws in force in the country.” (HR IV, art. 43 (emphasis added)) 

1. Authority of occupying force is supreme, constrained only by: 

a. The doctrine of military necessity; and 

b. Limitations imposed by binding international law, including customs and 

treaties, such as the rights of protected persons contained in GC IV. 

2. Occupant is obligated to maintain public order and has the right to demand 

obedience of inhabitants. 

3. All functions of legitimate government cease upon commencement of 

occupation; functions of government continue only to extent Occupant allows. 

(FM 27-10, para. 367) 

B. Applicable Law. “The penal laws of the occupied territory shall remain in force, with 

the exception that they may be repealed or suspended by the Occupant in cases where 

2

 AP Commentary at 67-68. 

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GC IV: Occupation 
they constitute a threat to its security or an obstacle to the application of the present 

Convention.” (GC IV, art. 64) 

1. Occupant does not bring its own jurisdiction and civil and criminal laws; 

ordinarily, laws of occupied country continue in force and courts continue to sit 

and try criminal cases not of a military nature. (GC IV, art. 64) 

2. Local courts should be used when feasible, but may be suspended if: 

a. Judicial personnel will not perform their duties; 

b. Courts are corrupt or unfairly constituted; 

c. Local courts have ceased to function; or 

d. Judicial process does not comply with fundamental human rights. 

3. Occupant may establish military courts or provost courts. 

a. May be used to try violations of occupation provisions or regulations. 

b. May be used if properly constituted, non-political, and located in occupied 

territory. 

4. Occupant may suspend, repeal, or alter existing laws, or promulgate new laws, 

if required by military necessity, maintenance of order, or welfare of the 

population. (HR, art. 43; GC IV, art. 64(3)) 

5. Suspension or repeal of local laws should be related to security of the force, 

mission accomplishment, or compliance with international law. Examples: 

a. Suspension of the right to bear arms; 

b. Suspension of the rights of assembly and protest; 

c. Suspension of freedom of movement; or 

d. Suspension of discriminatory laws; 

6. Issuing New Laws. 

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GC IV: Occupation 
 

a. Must publish and provide notice to inhabitants in their own language; 

b. Must be published in writing; and 

c. Must not be retroactive. 

d. Occupant has no obligation to comply with the constitutional or 

procedural rules of the occupied country. 

7. Occupying force is exempt from local law and jurisdiction of local courts. (FM 

27-10, para. 374) 

C. Protecting Powers. 

1. The Geneva Conventions of 1949 envisioned that interests of parties to conflicts 

would be safeguarded by neutral nations designated as “Protecting Powers.”3 

2. Protecting Powers have a named role in certain aspects of occupation. 

3. AP I restated and clarified duties of parties to conflicts to designate Protecting 

Parties or substitutes. (AP I, art. 5) 

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

art. 11) 

IV. SECURITY OF THE OCCUPANT 

A. Enforcement and Obedience. 

3

 “The present 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 diplomatic 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. 

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GC IV: Occupation 
1. Occupant can demand obedience from inhabitants of occupied territory for the 

security of its forces, maintenance of law and order, and proper administration. 

2. Inhabitants have duty to behave in a peaceful manner, take no part in hostilities, 

to refrain from acts harmful to the occupying force and its troops, and to render 

strict obedience to orders of the Occupant. (FM 27-10, para. 432) 

B. Security Measures. Military authorities in occupied territories have the right to 

perform police functions and to protect their own security. 

1. The following measures of population control are permissible. (GC IV, arts. 

27(4), 42, 43, 49(2), 64, 66, and 78): 

a. Restricting freedom of movement; 

b. Evacuation; 

c. Under certain exceptional circumstances, persons may be held 

incommunicado for a limited period; 

d. Judicial process; 

e. Assigned residence; 

f. Internment. 

2. The following measures of population control are forbidden at all times. (GC 

IV, arts. 31, 32, 33(1) and (3), 49(1)): 

a. Violence; 

b. Physical or moral coercion, particularly to obtain information; 

c. Brutality; 

d. Punishment for acts of others (reprisals or collective penalties); 

e. Deportations. 

C. Publication of Penal Provisions. 

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GC IV: Occupation 
1. “The penal provisions enacted by the Occupant shall not come into force before 

they have been published and brought to the knowledge of the inhabitants in 

their own language. The effect of these penal provisions shall not be 

retroactive.” (GC IV, art. 65) 

2. Publication must be in written form. (FM 27-10, para. 435b) 

D. Competent Courts. When penal provisions are breached, Occupant may try accused 

before its own properly constituted non-political military courts, provided such courts 

sit in the occupied territory; courts of appeal should likewise sit in the occupied 

territory. (GC IV, art. 66) 

E. Applicable Law and Penalties. 

1. Courts shall apply those laws in effect prior to the offense. 

2. Penalties shall be proportionate to the offenses committed and shall take into 

account that the inhabitants are not nationals of the Occupant. (GC IV, art. 67) 

3. Offenses against Occupant which (a) do not constitute attempts on life or limb 

of members of occupying forces, (b) do not pose a grave collective danger, or 

(c) do not seriously damage property of the occupying forces shall carry a 

punishment of internment or simple imprisonment proportionate to the offense 

committed. (GC IV, art. 68) 

4. Death Penalty. 

a. Occupant may only impose death penalty on protected persons convicted 

of espionage, serious acts of sabotage against military installations, or 

intentional offenses which have caused the death of one or more persons. 

(GC IV, art. 68) 

b. Death penalty may not be imposed on protected persons less than 18 years 

of age at the time of the offense. (GC IV, art. 68) 

c. Death penalty may only be imposed for those offenses that were 

punishable by death under the law of the territory prior to occupation. 

(GC IV, art. 68) 

d. U.S. Reservation: U.S. has reserved the right to impose the death penalty 

without regard to whether the offense was punishable by death under the 

law of the occupied territory prior to occupation. (FM 27-10, para. 438b) 

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GC IV: Occupation 
e. No person condemned to death shall be deprived of the right to petition for 

pardon or reprieve; execution of the death sentence suspended for 6 

months absent grave emergency involving organized threat to Occupant or 

its forces. (GC IV, art. 75) 

5. Other Offenses and Penalties. 

a. Fines and other penalties not involving deprivation of liberty may also be 

imposed. (FM 27-10, para. 438c) 

b. Period of time a person spends under arrest awaiting trial or punishment 

shall be deducted from any sentence of imprisonment. (GC IV, art. 69) 

F. Pre-Occupation Offenses. 

1. Protected persons shall not be arrested, prosecuted, or convicted by the 

Occupant for offenses committed before the occupation, except for violations of 

the law of war. (GC IV, art. 70) 

2. Nationals of the Occupant who sought refuge in the occupied territory shall not 

be arrested, prosecuted, convicted, or deported from the occupied territory, 

except as follows: 

a. For offenses committed after the outbreak of hostilities; 

b. For offenses committed before the outbreak of hostilities which would 

have justified extradition in time of peace; 

G. Penal Procedure. 

1. Occupant may pronounce sentence only after a regular trial. (GC IV, art. 71) 

2. Occupant must promptly provide those accused of crimes with a written copy of 

the charges in a language they understand; trial must be held as rapidly as 

possible. (GC IV, art. 71) 

3. Accused persons have the following rights at trial (GC IV, art. 72): 

a. To present evidence and call witnesses; 

b. To be represented by a qualified counsel or advocate of their choice, and 

time to prepare their defense; 

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GC IV: Occupation 
c. To have the assistance of an interpreter; 

d. To appeal (not absolute). 

4. Protecting Power. (GC IV, art. 74) 

a. Occupant must advise Protecting Power of proceedings involving the 

death penalty, or imprisonment for 2 years or more, and must notify the 

Protecting Power of any final judgment confirming a death sentence. 

b. Representatives of the Protecting Power may attend trial of any accused 

person except for those cases involving security of the Occupant; 

Occupant must send date and place of trial to Protecting Power. 

c. Protecting Power may appoint the accused counsel or an advocate. 

V. PROPERTY 

A. Destruction Prohibited. Destroying or seizing enemy property is prohibited, unless 

such destruction or seizure is demanded by imperative necessities of war (HR, art. 

23(g)); Occupant is prohibited from destroying real or personal property (State or 

private) unless absolutely necessary due to military operations. (GC IV, art. 53) 

B. Pillage. Pillage, or looting by occupation troops, is strictly forbidden. (HR, art. 47; 

GC IV, art. 33) 

C. Property Control. Occupant may control property within occupied territory to extent 

necessary to prevent use by hostile forces. (FM 27-10, para. 399) 

D. Definitions. 

1. Seizure. The temporary taking of proper, with or without authorization from 

the local commander. Generally, the on-scene commander is the authority to 

seize property. Seizing, or temporarily taking, private property that has a direct 

military use (i.e., broadcasting or communications equipment) is permissible, 

but Soldiers must provide the owner a receipt to reclaim the property later, as 

well as compensation for any damage to the property. (FM 27-10, para. 409) 

2. Confiscation. Confiscating, or permanently taking, private property is not 

permissible. 

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GC IV: Occupation 
3. Requisition. Requisitioning of services and property from the population is 

permissible if ordered by the local commander and paid for in cash; food or 

other items needed by the civilian population may only be requisitioned after 

taking those needs into consideration. (FM 27-10, paras. 412 - 415) 

E. Ownership. 

1. Beneficial Ownership. It may be necessary to look beyond legal title to 

determine whether property is public or private; evaluate character of property 

based on who benefits from ownership, i.e., private trust funds are not public 

property just because they are held in a state bank. (FM 27-10, para. 394a) 

2. Mixed or Unknown Ownership. Property is public if State has assumed 

economic risk involved in holding and managing the property; if owner 

unknown, treat as public until ownership ascertained. (FM 27-10, para. 394b, c) 

F. State Property. 

1. Occupant serves as administrator and conservator of public buildings, real 

estate, forests, and agricultural estates belonging to the hostile State; Occupant 

must safeguard and administer. (HR, art. 55) 

2. Real property of direct military use (forts, arsenals, dockyards, magazines, 

barracks, railways, bridges, piers, wharves, airfields, and other military 

facilities) remain in Occupant’s control until close of the war and may be 

damaged or destroyed if militarily necessary. (FM 27-10, para. 401) 

3. Non-military real property may not be damaged or destroyed unless military 

operations render absolutely necessary; Occupant may not sell real property or 

lessen its value. (FM 27-10, para. 402) 

4. Movable Property. 

a. “An army of occupation can only take possession of cash, funds, and 

realizable securities which are strictly the property of the State, depots of 

arms, means of transport, stores and supplies, and, generally, all movable 

property belonging to the State which may be used for operations of the 

war.” (HR, art. 53) 

b. Classes of Movable Property. All movable property susceptible to 

military use may be taken and used by the Occupant; all other property 

must be respected and may not be appropriated. (FM 27-10, para. 404) 

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GC IV: Occupation 
G. Private Property. 

1. Municipal, Religious, Charitable, and Cultural Property. Even where such 

property belongs to the State, it shall be treated as private property; seizure and 

destruction is forbidden. (HR, art. 56) 

a. Such premises may be requisitioned in the event of necessity for 

quartering troops and the sick and wounded, storage of supplies and 

material, housing of vehicles and equipment, and otherwise as allowed for 

private property; must secure against all avoidable injury. (FM 27-10, 

para. 405b) 

b. It is U.S. practice 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 Confiscation of Private Property. Prohibition extends to outright takings as 

well as to any acts that, by use of threats, intimidation, or pressure, or by actual 

exploitation of the Occupant’s power, permanently or temporarily deprives the 

owner of the property without consent or without authority under international 

law. (HR, art. 46 para. 2; FM 27-10, para. 406b). Private real property may not 

be seized, but may be requisitioned. (FM 27-10, para. 407) 

3. Private Property Susceptible to Direct Military Use. 

a. Property such as cables, telephone and telegraph plants, radio, television, 

and telecommunications equipment, motor vehicles, railways, railway 

plants, port facilities, ships in port, barges and other watercraft, airfields, 

aircraft, depots of war, all varieties of military equipment, including that in 

the hands of manufacturers, component parts of or material suitable only 

for use in the foregoing, and in general all kinds of war material, may be 

seized provided a receipt is given to the owner for return of the property 

and/or compensation. (GC IV, art. 53; FM 27-10, para. 410a) 

b. Destruction of any of the foregoing is permissible only if rendered 

absolutely necessary by military operations. (GC IV, art. 53; FM 27-10, 

para. 410b) 

H. Requisitions. 

1. Requisitions in kind and services shall be made only for the needs of the 

occupying army; shall be in proportion to the resources of the country; shall be 

116 

GC IV: Occupation 
demanded only by the commander of the occupied locality; and shall be paid for 

in cash so far as possible. (HR, art. 52) 

2. Almost everything may be requisitioned for the maintenance of the army: fuel, 

food, clothing, building materials, machinery, tools, vehicles, furnishings for 

quarters; billeting of troops in occupied areas is authorized. (FM 27-10, para. 

412b) 

3. Requisitioning of food and medical supplies in the occupied territory is only 

permissible for use by the occupation forces and administration personnel, and 

only if the needs of the civilian population have been taken into account; the 

Occupant shall pay fair value for any requisitioned goods. (GC IV, art. 55 para. 

2) 

4. Coercive measures must be limited to the amount and kind necessary to secure 

the requisitioned articles. (FM 27-10, para. 417) 

VI. SERVICES OF OCCUPIED POPULATION 

A. Labor. 

1. “The Occupant may not compel protected persons to serve in its armed or 

auxiliary forces.” (GC IV, art. 51) 

2. Permissible Work. Protected persons over age 18 may only be compelled to do 

work necessary for the needs of the occupation army, for public utility services, 

or for feeding, sheltering, clothing, transportation or health of occupied 

population; no military operations. (GC IV, art. 51) 

3. Prohibited Labor. Prohibition against working in support of military operations 

includes services directly promoting the ends of the war such as construction of 

fortifications, entrenchments, and military airfields or the transportation of 

supplies or ammunition in the zone of operations; however, voluntary 

employment for pay to do such work is permitted. (FM 27-10, para. 420) 

B. Services That May be Requisitioned. 

1. Professional services, to include: engineers, physicians and nurses, artisans and 

laborers such as clerks, carpenters, butchers, bakers, and truck drivers. (FM 27­

10, para. 419) 

2. Officials and employees of railways, truck lines, airlines, canals, river or 

coastwise steamship companies, telephone, telegraph, radio, postal and similar 

117 

GC IV: Occupation 
services, gas, electric, and water works, and sanitary authorities. (FM 27-10, 

para. 419) 

3. Repair of roads, bridges, and railways and services on behalf of local 

population, including care for wounded and sick and burial of the dead. (FM 27­

10, para. 419) 

C. Protection of Workers. “All measures aimed at creating unemployment or at 

restricting the opportunities offered to workers in an occupied territory, in order to 

induce them to work for the Occupant, are prohibited.” (GC IV, art. 54) 

D. Judges and Public Officials. 

1. Occupant may not alter status of judges or public officials or coerce or 

discriminate against them for not fulfilling their functions based on reasons of 

conscience; however, Occupant may remove officials from their posts. (GC IV, 

art. 54) 

2. Oath. Occupant may require officials to take an oath to perform their duties 

conscientiously, and failure to do so may result in removal (FM 27-10, para. 

423); distinguish this oath of obedience from an oath of allegiance to the 

Occupant, which is forbidden. (HR, art. 45) 

3. Salaries. Civil officials such as judges, administrative or police officers, and 

officers of city governments are paid from public revenues of occupied territory 

until military government has reason to dispense with their services. (FM 27­

10, para. 424) 

VII. PUBLIC FINANCE 

A. Taxes. 

1. If Occupant collects taxes, dues, and tolls for the benefit of the occupied state, it 

shall be done in accordance with existing rules of incidence and assessment. 

(HR, art. 48) 

2. Taxes shall be applied first to the costs of administering the occupied territory, 

and the balance may be used for the needs of the Occupant. (FM 27-10, para. 

425b) 

3. No new taxes may be levied by Occupant unless considerations of public order 

and safety so require. (FM 27-10, para. 426b) 

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GC IV: Occupation 
 

B. Contributions. 

1. If the Occupant levies money contributions in addition to taxes, these may only 

be for the needs of the army or for administration of the occupied territory. 

(HR, art. 49) 

2. Contributions may only be collected pursuant to a written order, and receipts 

shall be given for all contributions. (HR, art. 51) 

C. Costs of Occupation. 

1. Economy of occupied country can be required to bear expenses of occupation, 

which should not be greater than the economy can reasonably be expected to 

bear. (FM 27-10, para. 364) 

2. In practice, U.S. occupation expenses are funded by Department of Defense 

appropriations. 

VIII. CIVILIAN PROTECTIONS – ENTIRE POPULATION 

A. Background. To gain full protection as a matter of law under the Geneva 

Conventions, recall that you must qualify as being in the right type of conflict and 

being the right kind of person. The right type of conflict analysis determines whether 

or not the full body of the law of war applies. If there is an international armed 

conflict, then ALL civilians are entitled to GC IV, Part II protections. These 

protections are very basic as will be seen below. They form the first step in the 

protective scheme of GC IV. The right type of person analysis determines whether a 

person qualifies for enhanced protections under GC IV, Part III. 

B. GC IV, Part II - Protection of the Entire Population. Although GC IV was the first 

law of war treaty devoted exclusively to the protection of civilians, with the exception 

of Common Article 3, only Part II of the treaty applies to every civilian in the 

area of conflict. GC IV, art. 13 states that “the provisions of Part II cover the whole 

of the populations of the countries in conflict, without any adverse distinction based, 

in particular, on race nationality, religion or political opinion, and are intended to 

alleviate the suffering caused by war.” 

1. Article 15 of GC IV. Provides for, but does not mandate, the establishment of 

“neutralized zones” (temporary zones in the area of combat) to shelter from 

the effects of war: 

a. Wounded and sick combatants and non-combatants; 

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b. Civilian persons who take no part in hostilities, and who, while they reside 

in the zones, perform no work of a military character. 

2. Article 14 of GC IV. Provides for, but does not mandate, the establishment of 

“hospital/safety zones” (permanent structures established outside combat area) 

to shelter from the effects of war “Special Needs” civilians: 

a. Mothers of children under seven; 

b. Wounded, sick, and infirm; 

c. Aged; 

d. Children under the age of 15; and 

e. Expectant mothers. 

3. Further Protections of the Entire Population. In addition to providing for the 

establishment of these “protected” zones, Part II also mandates the following 

protections: 

a. The wounded, sick, infirm and expectant mothers must be “respected and 

protected” by all parties to the conflict at all times (GC IV, art. 16) 

b. Agreements should be reached to allow for removal of special needs 

individuals from besieged areas and the passage of ministers and medical 

personnel to such areas. (GC IV, art. 17) 

c. Civilian Hospitals shall not be the object of attack. (GC IV, art. 18) 

d. Allow passage of consignments of medical supplies, foodstuffs, and 

clothing. (GC IV, art. 23) 

e. Protection and maintenance of orphans, or those separated from their 

family who are under the age of 15. (GC IV, art. 24) 

f. Rights to communicate with family via correspondence (GC IV, art. 25) 

IX. STATUS AND TREATMENT OF “PROTECTED PERSONS” 

A. Part III Protections. The protected persons analysis is the next step in the GC IV 

protection scheme. Individuals who meet the definition of “protected person” already 

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qualify for Part II protections; however, they will also receive additional coverage 

from GC IV, Part III. The specific protections, found within the various sections of 

Part III, are governed by the type of conflict ongoing in the territory in which the 

individual finds him or herself. Generally, protected persons are entitled, in all 

circumstances, to respect for their persons, their honor, their family rights, their 

religious convictions and practices, and their manners and customs. (GC IV, art. 27) 

B. Protected Persons. (GC IV, art. 4, para. 1). “Persons protected by the Convention are 

those who, at a given moment and in any manner whatsoever find themselves, in case 

of conflict or occupation, in the hands of a party to the conflict or occupying power of 

which they are not nationals.” Based on this definition, the following qualify as 

protected persons: 

1. Civilian enemy nationals within the national territory of each of the parties to 

the conflict. Example: Iraqi students in the U.S. at the outset of the 2003 Iraq 

War. Note: Nationals of a neutral or co-belligerent State are not protected 

persons if their country has normal diplomatic relations with the State in which 

they are located. 

2. The population of occupied territories, excluding nationals of the occupying 

power and co-belligerents. Example: In the case of Operation Iraqi Freedom, 

once Iraq was occupied, all civilians in Iraq who were not nationals of the States 

that comprised the coalition became protected persons. 

C. Those Not Protected. While there are four exceptions or exclusions that are 

specifically listed in GC IV, art. 4, other individuals may be excluded based on the 

threshold definition found in article 4. 

1. Nationals of belligerent State during hostilities, prior to occupation. Both 

Article 5 and Part III elaborate on treatment of protected persons by bifurcating 

them into two categories: 

a. Nationals of belligerents living in enemy territory; and 

b. The population of occupied territories (excluding nationals of the 

occupying power) 

Neither of these categories includes nationals of the State, during hostilities 

(prior to occupation). This achieves what is initially an attractive result by 

excluding unlawful combatants seized on an active battlefield from protected 

person status. Yet the exclusion may cause concern when it operates to exclude 

innocent civilians from the same status. 

2. Nationals of the Occupying or Hostile Force. 

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3. Nationals of a Party not bound by the Convention. 

4. Nationals of a Neutral State (if that state has normal diplomatic representation 

within the hostile state). This exception does not apply in occupied territories; 

neutrals are protected persons in occupied territories regardless of diplomatic 

relations. Note: The rule on its face only applies to Neutrals who find 

themselves in the territory of a belligerent state. In belligerent territory, the 

drafters believed that the “position of neutrals is still governed by any treaties 

concerning the legal status of aliens and their diplomatic representatives can 

take steps to protect them. In occupied territory, on the other hand, the 

diplomatic representatives in neutral States, even assuming that they remain 

there, are not accredited to the Occupying Power but only to the occupied 

Power.” (GC IV Commentary at 49) 

5. Nationals of Co-belligerent (an ally). 

6. Persons protected by any of the other three Conventions. 

X. SPECIFIC ARTICLES ADDRESSING PROTECTED PERSONS 

A. Before reviewing the protections available to protected persons, it is important to note 

that, protected persons may in no circumstances renounce in part or in entirety the 

rights secured to them by GC IV. (GC IV, art. 8) 

B. Part III, Section I – The General Standard: “Protected persons are entitled in all 

circumstances, to respect for their persons, their honor, their family rights, their 

religious convictions and practices, and their manners and customs. They shall at all 

times be humanely treated.” (GC IV, art. 27) 

1. Respect for Their Persons. Intended to grant a wide array of rights to protect 

physical, moral, and intellectual integrities. (GC IV, art. 27) 

2. Respect for Honor. Acts such as slander, insults, and humiliation are 

prohibited. (GC IV, art. 27) 

3. Respect for Family Rights. Arbitrary acts which interfere with marital ties, the 

family dwelling, and family ties are prohibited. This is reinforced by GC IV, 

art. 82, that requires, in the case of internment, that families be housed together. 

(GC IV, art. 27) 

4. Respect for Religious Convictions. Arbitrary acts which interfere with the 

observances, services, and rites are prohibited (only acts necessary for 

maintenance of public order/safety are permitted). (GC IV, art. 27) 

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5. Respect for Manners and Customs. Intended to protect the class of behavior 

which defines a particular culture. This provision was introduced in response to 

the attempts by World War II Powers to effect “cultural genocide.” (GC IV, art. 

27) 

6. No insults and exposure to public curiosity. (GC IV, art. 27) 

7. No rape, enforced prostitution, and indecent assault on women. (GC IV, art. 27) 

8. No using physical presence of persons to make a place immune from attack. 

(GC IV, art. 28) 

9. No physical or moral coercion, particularly to obtain information. (GC IV, arts. 

31 and 33) 

10. No actions causing physical suffering, intimidation, or extermination; including 

murder, torture, corporal punishment, mutilation, brutality, and 

medical/scientific experimentation. (GC IV, art. 32) 

11. No pillaging (under any circumstances and at any location). (GC IV, art. 33) 

12. No collective penalties. (GC IV, art. 33) 

13. No reprisals against the person or his property. (GC IV, art. 33) 

14. No taking of hostages (GC IV, art. 34) 

C. Part III, Section II: Protections specifically for aliens within the territory of a party to 

the conflict. This section affords protected persons with many of the same rights and 

privileges as host nation civilians. 

1. Right to Leave the Territory. (GC IV, art. 35). (Right may be overcome by the 

national interests (security) of the State.) 

2. Right to Humane Treatment during Confinement. Protected persons are entitled 

to the quality of treatment recognized by the civilized world, even if it exceeds 

the quality of treatment that a Detaining Power grants to its own citizens. (GC 

IV, art. 37) 

3. Right to receive relief packages, medical attention, and practice of their religion. 

(GC IV, art. 38) 

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4. Right to find gainful employment, subject to security concerns. If no 

employment is possible, the Party shall ensure support. (GC IV, art. 39) 

5. Limitations on the Type and Nature of Labor. (GCIV,art.40)

a. Can only be compelled to work to the same extent as nationals. 

b. Cannot be forced to contribute to the war effort of their enemy. 

c. These protected persons may be interned or placed in assigned residence if 

the security of the Detaining power makes it absolutely necessary. (GC 

IV, art. 42) 

D. Part III, Section III: Specific Protections for Protected Persons in Occupied Territory. 

1. Human Rights. 

a. “Family honor and rights, the lives of persons, and private property, as 

well as religious convictions and practice, must be respected.” (HR, art. 

46(1)) 

b. “Protected persons are entitled, in all circumstances, to respect for their 

persons, their honor, their family rights, their religious convictions and 

practices, and their manners and customs. They shall at all times be 

humanely treated, and shall be protected especially against all acts of 

violence or threats thereof and against insults and public curiosity. 

Women shall be especially protected against any attack on their honor, in 

particular against rape, enforced prostitution, or any form of indecent 

assault.” (GC IV, art. 27) 

2. Repatriation. Protected persons not nationals of the power whose territory is 

occupied may leave the territory. (GC IV arts. 35 and 48) 

3. Deportations, Evacuations, and Transfers. (GC IV, art. 49) 

a. Deportations of protected persons out of the occupied territory and 

forcible individual or mass transfers are prohibited. 

b. If security or military necessity requires it, the Occupant may partially or 

completely evacuate a given area, but not outside of occupied territory 

unless it cannot be avoided. 

c. Occupant may not relocate its own population into occupied territory. 

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4. Children. (GC IV, art. 50) 

a. Occupant shall facilitate proper working of institutions devoted to care and 

education of children. 

b. Occupant shall take all necessary steps to facilitate identification of 

children and registration of parentage. 

c. Occupant shall arrange for the maintenance and education (if possible, by 

persons of the same nationality, religion, and language) of children 

orphaned or separated from their parents. 

d. Occupant shall take all necessary steps to identify children whose identity 

is in doubt. 

e. Occupant shall not hinder application of preferential treatment for children 

younger than age fifteen, expectant mothers, and mothers of children 

under age seven in terms of food, medical care, and protection against 

effects of war. 

5. Food and Medical Supplies. Occupant has duty to ensure population has food 

and medical supplies, particularly if resources of occupied territory are 

inadequate. (GC IV, art. 55, paras. 1 and 3; AP I, art. 14) 

6. Hygiene and Public Health. Occupant has duty to ensure and maintain medical 

and hospital establishments and services and public health and hygiene in the 

occupied territory. (GC IV, art. 56) 

7. Requisition of Hospitals. In cases of urgent necessity for care of military 

wounded and sick, Occupant may requisition civilian hospitals provided that 

Occupant arranges for care of civilian patients; if materials and stores of civilian 

hospitals are needed for civilian population, cannot be requisitioned. (GC IV, 

art. 57) 

8. Spiritual Assistance. Occupant shall allow clergy to provide religious and 

spiritual assistance to their religious communities; Occupant shall accept 

religious articles and books and arrange for their distribution. (GC IV, art. 58) 

9. Relief. 

a. Collective Relief. If all or part of the population of an occupied territory 

needs supplies, then the Occupant shall agree to and facilitate relief 

schemes through other states or the International Committee of the Red 

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Cross (ICRC); provisions shall consist of food, clothing, and medical 

supplies; passage of such consignments must be permitted and protected. 

(GC IV, art. 59) 

b. Responsibilities of Occupant. Relief consignments do not relieve the 

Occupant of its obligations regarding food and medical supplies, hygiene, 

and public health, nor may the Occupant divert such relief consignments 

from their intended purpose. (GC IV, art. 60) 

c. Relief Consignments 

i. Distribution. All contracting parties shall make every effort to 

ensure transit and transport of relief consignments to occupied 

territories; such consignments shall be exempt from charges, taxes, 

or customs duties. (GC IV, art. 61; AP I, art. 81) 

ii. Individual Relief. Protected persons in occupied territories shall be 

allowed to receive individual consignments sent to them. (GC IV, 

art. 62) 

10. Relief Societies. Recognized national Red Cross, Red Crescent, and Red Lion 

and Sun societies shall be permitted to pursue their activities, as shall other 

humanitarian organizations; Occupant may not require changes to personnel or 

structure of such societies. (GC IV, art. 63) 

XI. INTERNMENT OF PROTECTED PERSONS 

A. Most severe form of non-penal related restraint permitted. Even if the detaining 

Power finds that neither internment nor assigned residence serves as an adequate 

measure of control, it may not use any measure of control that is more severe. (GC 

IV, arts. 41 and 78) 

B. Subject to periodic review (6 months) by a competent body. (GC IV, arts. 43 and 78). 

C. GC IV, Part III, Section IV: Internment, identifies the protections afforded to 

protected persons who are interned: 

1. Grouped as families whenever possible. (GC IV, art. 82) 

2. Separate from POWs and Criminals. Internees “shall be accommodated 

separately from prisoners of war and persons deprived of liberty for any other 

reason.” (GC IV, art. 84) 

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3. Proper housing. (GC IV, art. 85) 

4. Sufficient food, water and clothes. (GC IV, art. 89) 

5. Adequate infirmary with qualified doctor. (GC IV, art. 91) 

6. Complete religious freedom. (GC IV, art. 93) 

7. Right to control property and money. (GC IV, art. 97) 

8. Must post convention in native language, right to petition for redress of 

grievances, and elect internee committee. (GC IV, arts. 99 – 102) 

9. Right to notify family of location and send and receive letters. (GC IV, arts. 

105 – 107) 

10. Laws in place continue to apply (subject to operational imperatives); internees 

cannot be sent to penitentiaries for disciplinary violations. (GC IV, art. 117) 

11. Transfers must be done safely and notice must be given to internee’s family. 

(GC IV, art. 128) 

12. Must issue death certificates. Must conduct inquiry if death of internee is 

caused by sentry or other internee. (GC IV, arts. 129 – 131) 

13. Internment shall cease as soon as possible after the close of hostilities. (GC IV, 

art. 133) 

XII. DEROGATIONS 

A. In addition to outlining protected persons’ status and associated protections, GC IV, 

art. 5, provides for the suspension of protections generally based on hostile acts. 

Details on such derogations are provided for protected persons seized in two specific 

circumstances: 

1. Protected persons suspected or who have engaged in activities hostile to the 

security of the State in an enemy State’s territory. In these circumstances, the 

State may suspend any right or privilege under GC IV that would prove 

prejudicial to the security of the State. 

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2. Protected persons detained as spies, saboteurs, or suspected of activity hostile to 

an occupying power. In an occupation, the Occupant may suspend only rights 

of communication under GC IV. 

3. Thus, under Article 5, it is clear that alien unlawful combatants seized in the 

territory of the detaining power stand to have far more protections suspended 

than those seized by an Occupant in occupied territory. 

XIII. CONCLUSION 

A. The law of occupation provides many protections for those persons finding 

themselves in occupied areas. The protections provided to the general population 

during conflict or occupation (GC IV, Part II) are limited in nature compared to those 

provided to persons qualifying for “protected person” status (GC IV, art. 4 (defining 

“protected persons”) and GC IV, Part III). 

B. Based on recent conflicts and occupations, scholars have discussed whether the law 

of occupation allows for the fundamental changes in the government structure of an 

occupied state,4

 and whether considerations of human rights should enter into this 

discussion of central government restructuring during occupation.5 

FOR FURTHER READING 

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

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

C. INTERNATIONAL LAW AND THE ADMINISTRATION OF OCCUPIED TERRITORIES: TWO 

DECADES OF ISRAELI OCCUPATION OF THE WEST BANK AND GAZA STRIP (Emma 

Playfair, ed., 1992). 

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

4

 David Glazier, Ignorance is Not Bliss: The Law of Belligerent Occupation and the U.S. Invasion of Iraq, 

58 RUTGERS L. REV. 121 (2005). 

5 Adam Roberts, Transformative Military Occupation: Applying the Laws of War and Human Rights, 100 

AM. J. INT’L L. 580 (2006). 

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GC IV: Occupation 
MEANS AND METHODS OF WARFARE
 

I. OBJECTIVES 

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. BACKGROUND 

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 picture 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 discusses both areas. 

III. PRINCIPLES 

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 

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originally 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 action; and 

b. The action must not be forbidden by the law of war. 

2. Are there any exceptions to these elements? In other words, can the military 

requirement to undertake the action be so great that it can overcome a 

prohibition in international law? 

a. Criminal 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 consideration 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 Geneva 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 provisions 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 protected 

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 because “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). 

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sufficient upon which he could honestly conclude that urgent 

military necessity warranted the decision made.”2 

3. Military objective. Military objective is 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 of 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 defined 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 clearly 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 considered 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 regarding 

attacking enemy morale, deception operations, and strategic views of 

advantage versus tactical advantages of individual attacks. 

2 Id. 

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Means and Methods of Warfare 
4. People. 

a. Determining who can be a valid target is either a status-based or conductbased determination. 

b. Status-based. 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 conduct 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 targets unless “out of combat.” 

ii.	 Combatants are often referred to as “lawful” combatants 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 

criteria, 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. 

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Means and Methods of Warfare 
d. 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 members 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 where 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 

which 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 civilians 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 

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Means and Methods of Warfare 
D. 

E. 

F. 

G. 

sickness or wounds and who 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, art. 8). Shipwrecked 

members of the armed forces at sea are to be respected and 

protected. (GC II, art. 12; NWP 1-14M, para. 11.6). 

Shipwrecked includes downed passengers or crews on aircraft, 

ships in peril, and castaways. 

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 Personnel. 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 just cause for complaint” (FM 27-10, para. 

225). Medical personnel include: (GC I, art. 24) 

1. Doctors, surgeons, nurses, chemists, stretcher-bearers, 

medics, corpsman, and orderlies, etc., who are 

“exclusively engaged” in the direct care of the wounded 

and 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). 

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Means and Methods of Warfare 
 

H. Civilian Medical and Religious Personnel. Article 15 of AP I 

requires that civilian medical and religious personnel shall be 

respected and protected. They receive the benefits of the 

provisions of the Geneva Conventions and the Protocols 

concerning the protection and identification of medical 

personnel. Article 15 also dictates that any help possible shall 

be given to civilian medical personnel when civilian medical 

services are disrupted due to combat. 

I. Personnel Engaged in the Protection of Cultural Property. 

Article 17 of the 1954 Hague Cultural Property Convention3 

established a duty to respect (not directly attack) persons 

engaged in the protection of cultural property. The regulations 

attached to the Convention provide for specific positions as 

cultural protectors and for their identification. 

J. Journalists. Given protection as “civilians,” provided they take 

no action adversely affecting their status as civilians. (AP I, 

art. 79; considered customary international law by 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 place occupied by a combatant force or through which a force is 

passing; and 

iii.	 A city or town that is surrounded by defensive positions under 

circumstances that the city or town is indivisible from the defensive 

positions. See also AP I, art. 51(5)(a), which 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 objectives which are not “defended” are 

also subject to attack. (FM 27-10, para. 40(c)). 

3

 Reprinted in the Documentary Supplement 

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Means and Methods of Warfare 
b. Undefended places. The attack or bombardment of towns, villages, 

dwellings, or buildings which are undefended is prohibited. (HR, art. 25). 

An inhabited place may be declared an undefended place (and open for 

occupation) if the following criteria are met: 

i. All combatants and mobile military equipment are removed; 

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

iii.	 No acts of hostility shall be committed by the authorities or by the 

population; and 

iv. No activities in support of military operations shall be undertaken 

(presence of enemy medical units, enemy sick and wounded, and 

enemy police forces are allowed). (FM 27-10, para. 39b). 

c. Natural environment. 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, and 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 civilians. (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 

storage 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 or 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 Establishments. (FM 27-10, paras. 

257 and 258; GC I, art. 19) 

A. Fixed or mobile medical units shall be respected and protected. 

They shall not be intentionally attacked. 

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Means and Methods of Warfare 
B. Protection shall not cease, unless they are used to commit “acts 

harmful to the enemy.” 

C. There is a warning requirement before attacking a hospital that 

is committing “acts harmful to the enemy.” 

1. Reasonable time must be given to comply with the 

warning, before attack. 

2. When receiving fire from a hospital, there is no duty to 

warn before returning fire in self-defense. Example: 

Richmond Hills Hospital, Grenada; hospitals during 

combat in Operation Iraqi Freedom. 

D. Medical Transport. Ground transports of the wounded and sick 

or of medical equipment shall not be attacked if performing a 

medical function. (GC I, art. 35). Under GC I, medical aircraft 

were protected from direct attack only if they flew in 

accordance with a previous agreement between the parties as to 

their route, time, and altitude. AP I extends further protection 

to medical aircraft flying over areas controlled by friendly 

forces. Under this regime, identified medical aircraft are to be 

respected, regardless of whether a prior agreement between the 

parties exists. (AP I, art. 25). In “contact zones,” protection 

can only be effective by prior agreement; nevertheless medical 

aircraft “shall be respected after they have been recognized as 

such.” (AP I, art. 26; considered customary international law 

by U.S.). Medical aircraft in areas controlled by an adverse 

party must have a prior agreement in order to gain protection. 

(AP I, art. 27). 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; see AP I, art. 53, for similar prohibitions). 

Cultural property includes buildings dedicated to religion, art, science, 

charitable purposes, historic monuments, hospitals, and places where the 

sick and wounded are collected. 

i. Misuse will subject them to attack. 

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Means and Methods of Warfare 
ii. 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, dikes, 

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 loss” 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 release 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 operations 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 military 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. Objects 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 indispensable for 

survival of the civilian population, such as foodstuffs, crops, livestock, 

water installations, and irrigation works. 

6. Protective Emblems. (FM 27-10, para. 238). Objects and personnel displaying 

emblems are presumed to be protected under Conventions. (GC I, art. 38) 

a. Medical and Religious Emblems. 

i. Red Cross. 

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Means and Methods of Warfare 
ii. 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 blue triangle above 

the square, the space on either side being taken up by a white 

triangle.” (1954 Cultural Property Convention, arts. 16 and 17). 

ii. Hague Convention No. IX Concerning Bombardment by Naval 

Forces in Time of War (art. 5). “[L]arge, stiff, rectangular panels 

divided diagonally into two colored triangular portions, the upper 

portion black, the lower portion white.” 

c. Works and Installations Containing Dangerous Forces. Three bright 

orange circles, of similar size, placed on the same axis, the distance 

between each circle being one radius. (AP I, annex I, art. 16.) 

C. Principle of Discrimination or Distinction. The principle of distinction is sometimes 

referred to as the “grandfather of all principles,” as it forms the foundation for much 

of the Geneva Tradition of the law of war. The essence of the principle is that 

military attacks should be directed at combatants and military targets, and not 

civilians or civilian property. AP I, art. 48 sets out the rule: “[p]arties to the conflict 

shall at all times distinguish between the civilian population and combatants and 

between civilian objects and military objectives and accordingly shall direct their 

operations only against military objectives.” 

1. AP I, art. 51(4), further defines “indiscriminate attacks” as those attacks that: 

a. Are “not directed against a specific military objective” (e.g., SCUD 

missiles during Desert Storm); 

b. “Employ a method or means of combat the effects of which cannot be 

directed at a specified military objective” (e.g., area bombing); 

c. “Employ a method or means of combat the effects of which cannot be 

limited as required” (use of bacteriological weapons); and 

139 

Means and Methods of Warfare 
 

d. “Consequently, in each case are of a nature to strike military 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 proportionality. 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. Incidental 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 commander 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 

commander 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 that 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. RODGERS, LAW ON THE BATTLEFIELD 19-24 (1996). 

5

 See id. at 66. See also discussion of the “Rendulic Rule,” supra note 2, and accompanying text. 

140 

Means and Methods of Warfare 
 

disproportionate? Second, did the commander act reasonably based on the 

gathered information? 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. Barbed 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 outweigh the military 

advantage gained. Although the attack unfortunately resulted in numerous 

civilian deaths, (and that in hindsight, the attack might have been 

disproportionate to the military advantage gained—had the attackers 

known of the civilians) there was no international law violation because 

the attackers, at the time of the attack, acted reasonably.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. WEAPONS 

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 DEPARTMENT OF DEFENSE, CONDUCT OF THE PERSIAN GULF WAR, FINAL REPORT TO CONGRESS 

615-616 (1992). 

141 

Means and Methods of Warfare 
 

 

B. Legal Review. Before discussing these areas, it is important to note first that all U.S. 

weapons and weapons systems must be reviewed by the Service TJAG for legality 

under the law of war.7

 A review occurs 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 procurement 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 weapons 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 glass. (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 inflict 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. Consideration 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 prohibits 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. 

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Means and Methods of Warfare 
international law. State practice is to use jacketed small arms ammunition 

(which reduces bullet expansion on impact). 

a. Hollow point ammunition. Typically, this is semi-jacketed ammunition 

that is designed to expand dramatically upon impact. This ammunition is 

prohibited for 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 ammunition 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 Arms 

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 not 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 mythology 

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 Unnecessary Suffering Project (SIrUS) was an 

attempt by the ICRC to bring objectivity to the review of legality of 

various weapons systems. The SIrUS project attempted to use casualty 

survival rates off the battlefield, as well as the seriousness 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 

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Means and Methods of Warfare 
 

inflicted in domestic 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 calculated to cause unnecessary suffering). 

b. Unlawful if fragments are undetectable by X-ray (Protocol I, 1980 Certain 

Conventional Weapons Treaty9). 

D. The following weapons and munitions are regulated not only by the principle 

prohibiting 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 restrictions on landmines, three questions must be 

answered: 

i. What type of mine is it: anti-personnel, anti-tank, or anti-tank with 

anti-handling device? 

ii.	 How is the mine delivered: remotely or non-remotely? 

iii.	 Does it ever become inactive or self-destruct? Is it “smart” or 

“dumb?” (“Smart” mines are those that are self-destructing, selfneutralizing, or self-deactivating; “dumb” landmines are persistent, 

and a threat until they are triggered or lifted.) 

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. 

144 

Means and Methods of Warfare 
 

c. The primary treaty that restricts U.S. use of mines is Amended Protocol II 

to the Convention on Prohibitions or Restrictions 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 of the original Protocol to include internal armed 

conflicts; 

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

“smart”; 

iii.	 Requires that all “dumb” anti-personnel landmines be used within 

controlled, marked, and monitored minefields; accordingly, they 

may not be remotely delivered; 

iv. Requires that all anti-personnel landmines be detectable using 

available technology (i.e., that they contain a certain amount of iron 

so as to be detectable using normal mine sweeping equipment); 

v. Requires that the party laying mines assume responsibility to ensure 

against their irresponsible or indiscriminate use; and 

vi. Provides for means to enforce compliance. 

vii. Amended Protocol II also clarifies the use of the M-18 Claymore 

“mine” when used in the tripwire mode (art. 5(6)). (When used in 

command-detonated mode, the Protocol does not apply, as the issue 

of distinction is addressed by the “triggerman” monitoring the area). 

Claymores may be used in the tripwire mode, without invoking the 

“dumb” mine restrictions of Amended Protocol II, if: 

A. They are not left out longer than 72 hours; 

B. The Claymores are located in the immediate proximity of the 

military unit that emplaced them; and 

C. The area is monitored by military personnel to ensure civilians 

stay out of the area. 

10 Reprinted in the Documentary Supplement. 

145 

Means and Methods of Warfare 
 

d. In addition to Amended Protocol II, the United States released a new 

policy statement on landmines in February 2004. Under this policy: 

i. The United States has committed to eliminate persistent (dumb) 

landmines of all types from its arsenal. 

ii. Persistent anti-personnel landmines are only stockpiled for use by the 

United States in fulfillment of our treaty obligations to the Republic 

of Korea. 

iii.	 Persistent anti-vehicle mines can only be employed outside the 

Republic of Korea when authorized by the President until the end of 

2010. 

iv. After 2010, the United States will not employ either persistent antipersonnel or persistent anti-vehicle landmines. 

e. Although not applicable to the U.S., many nations, including many of our 

allies, have signed the Convention on the Prohibition of the Use, 

Stockpiling, Production, and Transfer of Anti-Personnel Mines and on 

Their Destruction.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 Traps. A device designed to kill or maim an unsuspecting person who 

disturbs an apparently harmless object or performs a normally safe act. 

a. Amended Protocol II of the 1980 Conventional Weapons Convention 

contains specific guidelines on the use of booby-traps in Article 7, 

prohibiting booby-traps and other devices which are in any way attached 

or associated with: 

i. Internationally recognized protective emblems, signs or signals; 

ii. Sick, wounded, or dead persons; 

11 Reprinted in the Documentary Supplement. 

146 

Means and Methods of Warfare 
iii.	 Burial or cremation sites or graves; 

iv. Medical facilities, medical equipment, medical supplies or 

transportation; 

v. Children’s toys or other portable objects or products specifically 

designed for the feeding, health, hygiene, clothing, or education of 

children; 

vi. Food or drink; 

vii.	 Kitchen utensils or appliances, except in military establishments; 

viii.	 Objects clearly of a religious nature; 

ix. Historic monuments, works of art, or places of worship which 

constitute the cultural or spiritual heritage of peoples; or 

x. Animals or their carcasses. 

b. The above list is a useful “laundry list” for the operational law attorney to 

use when analyzing the legality of the use of a booby-trap. There is one 

important caveat to the above list: sub-paragraph 1(f) of article 7 prohibits 

the use of booby-traps against “food or drink.” Food and drink are not 

defined under the Protocol, and if interpreted broadly, could include such 

viable military targets as supply depots and logistical caches. 

Consequently, it was imperative to implement a reservation to the Protocol 

that recognized that legitimate military targets such as supply depots and 

logistical caches were permissible targets against which to employ boobytraps. The reservation clarifies the fact that stocks of food and drink, if 

judged by the United States to be of potential military utility, will not be 

accorded special or protected status. 

3. Cluster Bombs or Combined Effects Munitions. These effective weapons 

against such targets as air defense radars, armor, artillery, and personnel. 

However, because the bomblets are dispensed over a relatively large area and a 

small percentage of them typically fail to detonate, there is an unexploded 

ordinance hazard associated with this weapon. These sub-munitions are not 

mines, and are not triggered to explode in the same way as anti-personnel 

landmines, and therefore are acceptable under the laws of armed conflict. 

However, if the sub-munitions are disturbed or disassembled, they may 

147 

Means and Methods of Warfare 
 

explode.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 Weapons 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 within areas of civilian 

concentrations if their use will result in fewer civilian casualties. For 

example: the use of incendiary weapons against a chemical 

munitions factory in a city could cause fewer incidental civilian 

casualties, as conventional explosives would probably disperse the 

chemicals, where incendiary munitions would burn up the chemicals. 

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

5. Lasers. U.S. policy (announced by SECDEF in Sep 95) prohibits use of lasers 

specifically designed, as their sole combat function or as one of their combat 

functions, to cause permanent blindness to unenhanced vision. The policy 

recognizes that collateral or incidental damage may occur as the result of 

legitimate military use of lasers (range finding, targeting). This policy mirrors 

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. 

148 

Means and Methods of Warfare 
 

that 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 liquids, materials or devices. . . .” 

ii. The U.S. considers the 1925 Geneva Protocol as applying to both 

lethal and incapacitating chemical agents. 

iii.	 Incapacitating agents are those chemical agents producing symptoms 

that persist for hours or even days after exposure to the agent has 

terminated. The U.S. views Riot Control Agents (RCA) as having a 

“transient” effect, and thus they are NOT incapacitating agents. 

Therefore, the U.S. position is that the treaty does not prohibit the 

use of RCA in war, and it published an Understanding to this effect 

upon ratifying the treaty. (Other nations disagree with this 

interpretation). See further discussion below on RCA. 

iv. Under the Geneva Protocol of 1925, the U.S. reserved the right to 

use lethal or incapacitating gases if the other side uses them first. 

(FM 27-10, para. 38b). The reservation did not cover the right to use 

bacteriological methods of warfare in second use. Presidential 

approval was required for use. (E.O. 11850, 40 Fed. Reg. 16187 

(1975); FM 27-10, para. 38c.) However, the Chemical Weapons 

Convention (CWC), which the U.S. ratified in 1997, does not allow 

this “second” use. 

b. 1993 Chemical Weapons Convention (CWC).

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 Supplement. 

149 

Means and Methods of Warfare 
i. Article I. Parties agree to never develop, produce, stockpile, 

transfer, use, or engage in military preparations to use chemical 

weapons. Retaliatory use (second use) is not allowed, a significant 

departure from 1925 Geneva Protocol. It requires the destruction of 

chemical stockpiles. Each party agrees not to use RCAs as a 

“method of warfare.” 

ii. Article II includes definitions of chemical weapons, toxic chemical, 

RCA, and purposes not prohibited by the convention. 

iii.	 Article III requires parties to declare stocks of chemical weapons and 

facilities they possess. 

iv. Articles IV and V include procedures for destruction and 

verification, including routine on-site inspections. 

v. Article VIII establishes the Organization for the Prohibition of 

Chemical Weapons (OPWC). 

vi. Article IX establishes “challenge inspection;” a short notice 

inspection in response to another party’s allegation of noncompliance. 

7. Riot Control Agents (RCA). The use of RCA by U.S. troops is governed by 

four key documents. In order to determine which documents apply to the 

situation at hand, you must first answer one fundamental question: is the U.S. 

currently engaged in war? If so, use of RCA is governed by the CWC and 

Executive Order 11850. If not, then use of RCA is governed by CJCSI 

3110.07C, and, more tangentially, by the Senate’s resolution of advice and 

consent to the CWC. 

a. War. In determining if the U.S. is at war for purposes of use of RCA, the 

question is whether the international armed conflict the U.S. is involved in 

is of a scope, duration, and intensity to be an operation that triggers the 

application of the law of war (i.e., a Common Article 2 conflict). 

i. CWC. As noted above, the CWC prohibits use of RCA as a “method 

of warfare.” The President decides if a requested use of RCA 

qualifies as a “method of warfare.” As a general rule, during war, 

the more it looks like the RCA is being used on enemy combatants, 

the more likely it will be considered a “method of warfare” and 

prohibited. 

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Means and Methods of Warfare 
ii. 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. Rescue 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 war. In a situation less than a Common Article 2 

conflict, the CWC and E.O. 11850 restrictions on RCA do not apply. 

Rather, CJCSI 3110.07C applies. The authorization for RCA use may be 

at a lower level than the President. CJCSI 3110.07C states the United 

States is not restricted by the Chemical Weapons Convention in its use of 

RCAs, including against combatants who are a party to a conflict, in any 

of the following cases: 

i. The conduct of peacetime military operations within an area of 

ongoing armed conflict when the United States is not a party to the 

conflict. 

ii.	 Consensual peacekeeping operations when the use of force is 

authorized by the receiving State, including operations pursuant to 

Chapter VI of the UN charter. 

iii.	 Peacekeeping operations when force is authorized by the Security 

Council under Chapter VII of the UN charter. 

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Means and Methods of Warfare 
 

iv. These allowable uses are drawn from the language of the Senate’s 

resolution of advice and consent for ratification of the CWC (S. 

Exec. Res. 75 – Senate Report section 3373 of Apr. 24, 1997). The 

Senate required that the President certify when signing the CWC that 

the CWC did not restrict in any way the above listed uses of RCA. 

In essence, the Senate made a determination that the listed uses were 

not “war,” triggering the application of the CWC. 

A. The implementation section of the resolution requires the 

President not modify E.O. 11850. (see S. Exec Res. 75, section 

2 (26)(b), s3378) 

B. The President’s certification document of Apr. 25, 1997 states 

that “the United States is not restricted by the convention in its 

use of riot control agents in various peacetime and 

peacekeeping operations. These are situations in which the 

U.S. is not engaged in the use of force of a scope, duration, and 

intensity that would trigger the laws of war with respect to U.S. 

forces.” 

v. Thus, during peacekeeping missions (such as Bosnia, Somalia, 

Rwanda and Haiti) it appears U.S. policy will maintain that we are 

not a party to the conflict for as long as possible. Therefore, RCA 

would be available for all purposes. However, in armed conflicts 

(such as Operation Iraqi Freedom, Enduring Freedom, Desert Storm, 

and Panama) it is unlikely that the President would approve the use 

of RCA in situations where “combatants” are involved due to the 

CWC’s prohibition on the use of RCA as a “method of warfare.” 

8. Herbicides. E.O. 11850 renounces first use in armed conflicts of herbicides 

(e.g., Agent Orange in Vietnam), except for domestic uses and to control 

vegetation around defensive areas. 

9. Biological Weapons. The 1925 Geneva Protocol prohibits bacteriological 

methods of warfare. The 1972 Biological Weapons Convention16 supplements 

the 1925 Geneva Protocol and prohibits the production, stockpiling, and use of 

biological and toxin weapons. The U.S. renounced all use of biological and 

toxin weapons. 

16 Reprinted in the Documentary Supplement. 

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Means and Methods of Warfare 
 

10. Nuclear Weapons. (FM 27-10, para. 35). Not prohibited by international law. 

In 1996, the International Court of Justice (ICJ) issued an advisory opinion17 

that “[t]here is in neither customary nor international law any comprehensive 

and universal prohibition of the threat or use of nuclear weapons.” However, by 

a split vote, the ICJ also found that “[t]he threat or use of nuclear weapons 

would generally be contrary to the rules of international law applicable in armed 

conflict.” The ICJ stated 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 would be at 

stake. 

V. TACTICS 

A. “Tricking” the enemy 

1. Ruses. (FM 27-10, para. 48). Injuring the enemy by legitimate deception 

(abiding by the law of war—actions that are in good faith). Examples of ruses 

include: 

a. Naval Tactics. A common naval tactic is to rig disguised vessels or 

dummy ships, e.g., to make warships appear as merchant vessels. 

i. World War I - Germany: Germany often fitted her armed raiders 

with dummy funnels and deck cargoes and false bulwarks. The 

German raider Kormoran passed itself off as a Dutch merchant when 

approached by the Australian cruiser Sydney. Once close enough to 

open fire she hoisted German colors and fired, sinking Sydney with 

all hands.18 

ii.	 World War II - Britain: British Q-ship program during World 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. JOHN COLOMBOS, THE INTERNATIONAL LAW OF THE SEA 454-55 (1962). 

153 

Means and Methods of Warfare 
 

 

This tactic caused the Germans to shift from surfaced gun attacks to 

submerged torpedo attacks.19 

b. Land Warfare. Creation of fictitious units by planting false information, 

putting up dummy installations, false radio transmissions, or using a small 

force to simulate a large unit. (FM 27-10, para. 51.) 

i. World War II - 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, located 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, specifically XVIII Airborne 

Corps and VII Corps, used deception cells to create the impression 

that they were going to attack near the Kuwaiti boot heel, as opposed 

to the “left hook” strategy actually implemented. XVIII Airborne 

Corps set up “Forward Operating Base Weasel” near the boot heel, 

consisting of a phony network of camps manned by several dozen 

soldiers. Using portable radio equipment, cued by computers, phony 

radio messages were passed between fictitious headquarters. In 

addition, smoke generators 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, paras. 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, NAV. 

WAR. COLL. REV., Summer 1989, at 60. 

20 See JOHN KEEGAN, THE SECOND WORLD WAR 373-79 (1989). 

21 See RICK ATKINSON, CRUSADE 331-33 (1993). 

154 

Means and Methods of Warfare 
 

 

 

A. 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 150th SS Panzer 

Brigade. Several of his men were captured in U.S. uniforms; 

their mission being to secure three critical bridges in advance 

of the German attack. Eighteen of Skorzeny’s men were 

executed as spies following the battle. Following the war, ten 

of Skorzeny’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 generally 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 uniforms, i.e., the U.S. 

interprets the “improper use” of a national flag (HR, art. 23(f)) to 

permit the use of national colors and insignia of enemy as a ruse as 

long as they are not employed during actual combat (FM 27-10, 

para. 54; NWP 1-14M, para. 12.5). 

iii. Equipment. Military forces must remove all enemy insignia in order 

to fight with the equipment. Captured supplies: may seize and use if 

State property. Private transportation, arms, and ammunition may be 

seized, but must be restored and compensation fixed when peace is 

made. (HR, art. 53) 

iv. Effect of Protocol I. AP I, art. 39(2), prohibits virtually all use of 

these enemy items. (see NWP 1-14M, para 12.5.3). Article 39 

prohibits the use in an armed conflict of enemy flags, emblems, 

uniforms, or insignia while engaging in attacks or “to shield, favour, 

protect or impede military operations.” The 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. REV. 1, 77-78 (1990). For an argument against any use of the 

enemy’s uniform, see Valentine Jobst III, Is the Wearing of the Enemy’s Uniform a Violation of the Laws 

of War?, 35 AM. J. INT’L L. 435 (1941). 

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Means and Methods of Warfare 
 

2. Treachery/Perfidy. In contrast to the lawful ruses discussed above, treachery 

and perfidy are prohibited under the law of war. (FM 27-10, para. 50; HR, art. 

23(b)). They involve injuring the enemy by his adherence to the law of war 

(actions that are in bad faith). As noted below, treachery/perfidy can be further 

broken down into feigning and misuse. 

a. History. Condemnation of perfidy is an ancient precept of the law of war, 

derived from the principle of chivalry. Perfidy degrades the protections 

and mutual restraints developed in the mutual interest of all parties, 

combatants, and civilians. In practice, combatants find it difficult to 

respect protected persons and objects if experience causes them to believe 

or suspect that the adversaries are abusing their claim to protection under 

the law of war to gain a military advantage. Thus, the prohibition is 

directly related to the protection of war victims. The practice of perfidy 

also inhibits the restoration of peace.23 

b. Feigning and Misuse. Distinguish feigning from misuse. Feigning is 

treachery 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 includes 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 MICHAEL BOTHE, ET. AL., NEW RULES FOR VICTIMS OF ARMED CONFLICTS 202 (1982); FM 27-10, 

para. 50. 

24 Bothe, supra note 21, at 203. 

25 Id. at 204-05. 

156 

Means and Methods of Warfare 
 

d. Feigning incapacitation by 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, 

art. 37(1)(a)). Note that in order to be a violation of AP I, art. 37, the 

feigning of surrender or an intent to negotiate under a flag of truce must 

result in a killing, capture, or surrender of the enemy. Simple misuse of a 

flag of truce, not necessarily resulting in one of those consequences is, 

nonetheless, a violation of AP I, art. 38, which the U.S. also considers 

customary law. An example of such misuse would be the use of a flag of 

truce to gain time for retreats or reinforcements.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 they 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 perfidious act. 

DOD Report to Congress rejected that observation, stating that the 

reversed turret is not a recognized symbol of surrender per se. 

“Some tactical confusion may have occurred, since Coalition ground 

forces were operating under a defensive posture at that time, and 

were to engage Iraqi forces only on a clear indication of hostile 

intent, or some hostile act.”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 MORRIS GREENSPAN, THE MODERN LAW OF LAND WARFARE 320-21 (1959). 

28 See Major Robert D. Higginbotham, Case Studies in the Law of Land Warfare II: The Campaign in the 

Falklands, Mil. Rev., Oct. 1984, at 49. 

29 See Dep’t of Defense, Final Report to Congress, supra note 6, at 621. 

157 

Means and Methods of Warfare 
 

 

 

iii.	 Desert Storm: On one occasion, however, Iraqi forces did 

apparently engage in perfidious behavior. In a situation analogous to 

the Falklands War scenario above, Iraqi soldiers waved a white flag 

and also laid down their arms. As Saudi forces advanced to accept 

the surrender, they took fire from Iraqis hidden in buildings on either 

side of street.30 Similar conduct occurred during Operation Iraqi 

Freedom when Iraqis took some actions to indicate surrender and 

then opened fire on Marines moving forward to accept the surrender. 

iv. Desert Storm: On another occasion an Iraqi officer approached 

Coalition forces with hands up indicating his intent to surrender. 

Upon nearing the Coalition forces he drew a concealed pistol, fired, 

and was killed.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 jackets, helmets, weapons of the French, drove up 

to French position on a Sarajevo bridge in an armored personnel 

carrier with UN emblems. French forces thought all was normal. 

The commandos, however, then proceeded to capture French 

peacekeepers without firing a shot.32 

ii. It is not perfidy (a violation of AP I, art 37) to (mis)use the emblem 

of the UN to try to gain protected status if the UN has member forces 

in the conflict as combatants (even just as peacekeepers). As in the 

case of the misuse of the flag of truce, misuse of a UN emblem that 

does not result in a killing, capture, or surrender, is nonetheless a 

violation of AP I, art. 38, because that article prohibits the use of the 

UN emblem without authorization. 

h. Misuse of Red Cross, Red Crescent, or cultural property symbol. 

30 Id. 

31 Id. 

32 Joel Brand, French Units Attack Serbs in Sarajevo, Wash. Post, May 28, 1995, at A1. 

158 

Means and Methods of Warfare 
 

i. Designed to reinforce/reaffirm HR, art. 23(f). 

ii. GC I requires that wounded and sick, hospitals, medical vehicles, 

and, in some cases, medical aircraft be respected and protected. The 

protection is lost if forces are committing acts harmful to the enemy. 

As an example, during the Grenada Invasion, U.S. aircraft took fire 

from the Richmond Hills Hospital, and consequently engaged it.33 

iii.	 Cultural property symbols include the 1954 Hague Cultural Property 

Convention, Roerich Pact, and 1907 Hague Conventions symbols. 

i. Misuse of internationally recognized distress signals. 

B. Assassination. Hiring assassins, putting a price on the enemy’s head, and offering 

rewards for an enemy “dead or alive” is prohibited. (FM 27-10, para 31; 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 activities. 

Therefore, upon later capture as a lawful combatant, the former spy cannot be 

tried for past espionage. 

D. Belligerent or wartime reprisals. (FM 27-10, para. 497). Defined as an otherwise 

illegal act done in response to a prior illegal act by the enemy. The purpose of a 

reprisal is to get the enemy to adhere to the law of war. 

33 See DA Pam 27-161-2, p. 53, n. 61. 

34 See W. Hays Parks, Memorandum of Law: Executive Order 12333 and Assassination, ARMY LAW. 

Dec. 1989, at 4. 

159 

Means and Methods of Warfare 
1. Reprisals are authorized if they are: 

a. Timely; 

b. Responsive to that enemy’s act that violated the law of war; 

c. Follow an unsatisfied demand to cease and desist; and 

d. Proportionate to the previous illegal act. 

2. Prisoners of war and persons “in your control” cannot be objects of reprisals. 

AP I prohibits reprisals against numerous other targets, such as the entire 

civilian population, civilian property, cultural property, objects indispensable to 

the survival of the civilian population (food, livestock, drinking water), the 

natural environment, and installations containing dangerous forces (dams, dikes, 

nuclear power plants) (AP I, arts. 51 and 53 - 56). The U.S. specifically objects 

to these as not reflective of customary international law. 

3. U.S. policy is that a reprisal may be ordered only at the highest levels 

(President). 

160 

Means and Methods of Warfare 
 

 

 

WAR CRIMES AND COMMAND RESPONSIBILITY
 

I. OBJECTIVES
 

A. Understand the history of the law of war as it pertains to war crimes and war crimes 

prosecutions, focusing on enforcement mechanisms. 

B. Understand the definition of “war crimes.” 

C. Understand the doctrine of command responsibility. 

D. Understand the jurisdictions and forums in which may war crimes be prosecuted. 

II. HISTORY AND DEVELOPMENT OF WAR CRIMES AND WAR CRIMES 

PROSECUTIONS 

A. General. Although war is not a compassionate trade, rules regarding its conduct and 

trials of individuals for specific violations of the laws or customs of war have a long 

history. 

B. American War of Independence. The most frequently punished violations were those 

committed by forces of the two armies against the persons and property of civilian 

inhabitants. Trials consisted of courts-martial convened by commanders of the 

offenders.1 

C. American Civil War. In 1865, Captain Henry Wirz, a former Confederate officer and 

commandant of the Andersonville, Georgia, prisoner of war camp, was convicted and 

sentenced to death by a federal military tribunal for murdering and conspiring to illtreat prisoners of war.2 

D. Anglo-Boer War. In 1902, British courts-martial tried Boers for acts contrary to the 

usages of war.3 

1 See George L. Coil, War Crimes of the American Revolution, 82 MIL. L. REV. 171, 173-81 (1978). 

2 See J. MCELROY, ANDERSONVILLE (1879); W.B. HESSELTINE, CIVIL WAR PRISONS (1930); 1 LAW OF 

WAR: A DOCUMENTARY HISTORY 783–98 (Leon Friedman, ed. 1972). 

3 See THE MILNER PAPERS: SOUTH AFRICA, 1897-1899, 1899-1905 (1933). 

161 

War Crimes and Command Responsibility 
 

 

 

E. Counter-insurgency operations in the Philippines. Brigadier General Jacob H. Smith, 

U.S. Army, was tried and convicted by court-martial for inciting, ordering, and 

permitting subordinates to commit war crimes.4 

F. World War I. Because of German resistance to 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.5 

G. World War II. Victorious allied nations undertook an aggressive program for the 

punishment of war criminals. This included the joint trial of 24 senior German leaders 

(in Nuremberg) and the joint trial of 28 senior Japanese leaders (in Tokyo) before 

specially created International Military Tribunals; twelve subsequent trials of other 

German leaders and organizations in Nuremberg under international authority and 

before panels of civilian judges; thousands of trials prosecuted in various national 

courts, many of these by British military courts and U.S. military commissions.6 

H. Geneva Conventions. Marked the codification—beginning in 1949 when the 

Conventions were opened for signature—of specific international rules pertaining to 

the trial and punishment of those committing “grave breaches” of the Conventions.7 

I. U.S. soldiers committing war crimes in Vietnam were tried by U.S. courts-martial 

under analogous provisions of the UCMJ.8 

J. Panama. In a much-publicized case arising in the 82d Airborne Division, a First 

Sergeant charged, under UCMJ, art. 118, with murdering a Panamanian prisoner, was 

acquitted by a general court-martial.9 

4

 See L. C. Green, Command Responsibility in International Humanitarian Law, 5 TRANSNAT’L L. & 

CONTEMP. PROBS. 319, 326 (1995); S. Doc. 213, 57th Cong. 2nd Session, p. 5. 

5 See DA Pam 27-161-2 at 221. 

6 See DA Pam 27-161-2 at 224-35; NORMAN E. TUTOROW, WAR CRIMES, WAR CRIMINALS, AND WAR 

CRIMES TRIALS: AN ANNOTATED BIBLIOGRAPHY AND SOURCE BOOK 4-8 (1986). 

7 See GC I Commentary 357-60. 

8 See MAJOR GENERAL GEORGE S. PRUGH, LAW AT WAR: VIETNAM 1964-1973 76-77 (1975); W. Hays 

Parks, Crimes in Hostilities, MARINE CORPS GAZETTE, Aug. 1976, at 16-22. 

9 See U.S. v. Bryan, Unnumbered Record of Trial (Hdqtrs, Fort Bragg 31 Aug. 1990) [on file with the 

Office of the SJA, 82d Airborne Div.]. 

162 

War Crimes and Command Responsibility 
 

K. Persian Gulf War. Although the United Nations Security Council (UNSC) invoked 

the threat of prosecutions of Iraqi violators of international humanitarian law, the 

post-conflict resolutions were silent on criminal responsibility.10 

L. Former Yugoslavia. On Feb. 22, 1993, the UNSC established the first international 

war crimes tribunal since the Nuremberg and Far East trials after World War II.11 On 

May 25, 1993, the Council unanimously approved a detailed report by the Secretary 

General recommending tribunal rules of procedure, organization, investigative 

proceedings, and other matters.12 

M. Rwanda. On Nov. 8,1994, the UNSC adopted a Statute creating the International 

Criminal Tribunal for Rwanda.13 Art. 14 of the Statute for Rwanda provides that the 

rules of procedure and evidence adopted for the Former Yugoslavia shall apply to the 

Rwanda Tribunal, with changes as deemed necessary. 

N. Sierra Leone. On Aug. 14, 2000, the UNSC adopted Resolution 1315, which 

authorized the Secretary General to enter into an agreement with Sierra Leone and 

thereby establish the Special Court for Sierra Leone (agreement signed Jan. 16, 

2002). The court is a hybrid international-domestic Court to prosecute those 

allegedly responsible for atrocities in the Sierra Leone. 

O. International Criminal Court. The treaty entered into force on July 1, 2002. At the 

time of this writing, 110 States have ratified the Rome Statute of the International 

Criminal Court.14 Although the U.S. is in favor of a standing permanent forum to 

address war crimes, the U.S. does not support the treaty as written. The United States 

signed the Rome Treaty on Dec. 31, 2000. Based on numerous concerns, however, 

President George W. Bush directed, on May 6, 2002, that notification be sent to the 

Secretary General of the United Nations, as the depositary of the Rome Statute, that 

the United States does not intend to become a party to the treaty and has no legal 

obligations arising from its previous signature. 

P. Military Commissions. In October 2006, President Bush signed the Military 

Commissions Act (MCA) of 2006, significantly amending the original military 

commissions order issued in 2001. In January 2009, President Obama paused 

10 See S.C. Res. 692, U.N. SCOR, 2987th 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 Trials in Yugoslavia, FOREIGN AFFAIRS, 

Summer 1993, at 125. 

11 S.C. Res. 808, U.N. SCOR, U.N. Doc. S/RES/808 (1993). 

12 S.C. Res. 827, U.N. SCOR, U.N. Doc. S/RES/827 (1993). 

13 S.C. Res. 955, U.N. SCOR, U.N. Doc. S/RES/955 (1994). 

14 Reprinted in the Documentary Supplement. 

163 

War Crimes and Command Responsibility 
 

prosecutions while his administration reviewed the cases and whether to continue or 

change the military commissions. In November 2009, Congress amended the 

Military Commissions Act. 

III. WAR CRIMES 

A. Definition. The lack of a clear definition for this term stems from the fact that both 

“war” and “crime” themselves have multiple definitions. Some scholars assert that 

“war crime” means any violation of international law that is subject to punishment. It 

appears, however, that there must be a nexus between the act and some type of armed 

conflict. 

1. “In contradistinction to hostile acts of soldiers by which the latter do not lose 

their privilege of being treated as lawful members of armed forces, war crimes 

are such hostile or other acts of soldiers or other individuals as may be punished 

by the enemy on capture of the offenders.”15 

2. “Crimes committed by countries in violation of the international laws governing 

wars. At Nuremberg after World War II, crimes committed by the Nazis were 

so tried.”16 

3. “The term ‘war crime’ is the technical expression for a violation of the law of 

war by any person or persons, military or civilian. Every violation of the law 

of war is a war crime.”17 

4. As with other crimes, there are Actus Reus and Mens Rea elements. 

5. Recurring problems with prosecution of war crimes: 

a. Partiality. 

i. War crimes prosecutions are subject to criticism as “Victor’s Justice” 

vice truly principled prosecution. A primary focus must be on a 

fundamentally fair system of justice with consistent application of 

the laws applied to all. 

15 L. OPPENHEIM, 2 INTERNATIONAL LAW 251 (7th ed., H. Lauterpacht, 1955); accord TELFORD TAYLOR, 

NUREMBERG AND VIETNAM 19-20 (1970). 

16 Black’s Law Dictionary 1583 (6th ed. 1990); cf. FM 27-10, para. 498 (defining a broader category of 

“crimes under international law” of which “war crimes” form only a subset and emphasizing personal 

responsibility of individuals rather than responsibility of states). 

17 FM 27-10, para. 499 (emphasis added). 

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War Crimes and Command Responsibility 
ii.	 In the trial of Admiral Dönitz, in part for the crime of not coming to 

the aid of enemy survivors of submarine attacks, he argued the point 

that this was the same policy used by U.S. forces in the Pacific under 

Admiral Nimitz. 22 I.M.T. 559 (1949). 

iii.	 Influence of Realpolitik impacts prosecutions. 

A. Yamashita. Appearance of expedited trial with sentence 

(death) announced on Dec. 7, 1945. Justice Rutledge stated in 

his dissent that the trial was “the uncurbed spirit of revenge and 

retribution, masked in formal legal procedure for purposes of 

dealing with a fallen enemy commander.” 327 U.S. 1, 41 

(1946). 

B. War crimes prosecutions not pursued post-conflict. In the 

Korean Conflict, 23 cases were ready for trial against POWs in 

U.S. custody, yet they were released under terms of the 

armistice. Prosecution was not mentioned in First Gulf War 

Ceasefire agreement. 

b. Legality. 

i. Ongoing issues with respect to nullum crimen sine lege and ex post 

facto laws, and balancing gravity of offenses with no statute of 

limitations against reliability of evidence/witness testimony. 

ii. Lack of a coherent system to define and enforce this criminal system 

presupposes a moral order superior to the States involved. This 

legally positivistic system requires a shared ethic that may or may 

not exist and is certainly disputed. 

iii.	 Status of individuals under international law is relatively new, 

although arguably has now crystallized into customary international 

law principle. Historically, States were held responsible as such; 

however, beginning with the Treaty of Versailles, and certainly after 

World War II, individuals were held responsible as actors for the 

State. 

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c. Recording history. Didactic function of war crimes trials is important, but 

may interfere with evidentiary procedures, e.g. by admitting more 

evidence than may otherwise be admitted.18 

B. Customary International Law War Crimes. 

1. General. There are many rules, both conventional and customary, imposing 

requirements and prohibitions on combatants in war. For example, HR, art. 

23(d) prohibits declarations that no quarter shall be given. But what is the result 

if a particular commander refuses quarter? These same rules contain no 

provision regarding the consequences of failing to meet the standard (compare 

this with the Geneva Convention scheme, discussed below). As a matter of 

custom, the violation has been termed a “war crime.” 

2. Definitions. 

a. FM 27-10, para. 504, includes the following categories of customary war 

crimes: Making use of poisoned or otherwise forbidden arms or 

ammunition; Treacherous request for quarter; Maltreatment of dead 

bodies; Firing on localities which are undefended and without military 

significance; Abuse of or firing on the flag of truce; Misuse of the Red 

Cross emblem; Use of civilian clothing by troops to conceal their military 

character during battle; Improper use of privileged buildings for military 

purposes; Poisoning of wells or streams; Pillage or purposeless 

destruction; Compelling prisoners of war or civilians to perform 

prohibited labor; Killing without trial spies or other persons who have 

committed hostile acts; Violation of surrender terms. 

b. The Rome Statute of the International Criminal Court, contains a similar, 

though more expansive list, under the heading of “other serious violations 

of laws and customs applicable in international armed conflict.” (Rome 

Statute, art. 8.2.(b)) 

3. It is not clear the extent to which universal jurisdiction applies to customary war 

crimes. Those prosecutions which have occurred based solely on the customary 

right to try war criminals have involved States which were the victims of the 

crimes; there have been few, if any, cases where an unconnected third State 

attempts a prosecution. The effect of the lack of clarity has diminished, 

however, with the advent of special tribunals and the International Criminal 

18 See THE LAW OF WAR CRIMES: NATIONAL AND INTERNATIONAL APPROACHES (McCormack and 

Simpson eds., 1997). 

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War Crimes and Command Responsibility 
Court, both discussed below, which specifically grant jurisdiction to themselves 

for these types of crimes. 

C. The Geneva Categories. The 1949 Geneva Conventions were written to protect the 

various non-combatant victims of international armed conflict, namely the wounded 

and sick, shipwrecked, prisoners of war, and civilians, with a Convention devoted to 

each. Each Convention set forth various positive and negative duties toward those 

persons protected by its provisions; for example, GC I, art. 12, states that the 

wounded and sick shall be treated humanely, and that they shall be respected (i.e., not 

targeted). Failure of either of these types of duties is a breach of the Convention, and 

potentially a war crime, though there is a significant qualitative difference between, 

for example, murdering a POW (GC III, art. 13) and failing to post a copy of the 

Convention in the POW’s language (GC III, art. 41). To provide greater guidance, 

the Conventions characterize certain breaches as “grave,” and mandate particular 

State action. 

1. Grave Breaches. 

a. Each Convention has an article enumerating the applicable grave breaches. 

The articles are similar, though not exactly the same, and appear at 

different places in each Convention, so they cannot be considered 

“common” in the same sense as Common Article 2 or 3. 

i. GC I: Article 50. 

ii.	 GC II: Article 51. 

iii.	 GC III: Article 130. 

iv. GC IV: Article 147. 

Common among these is the inclusion of murder, torture, causing great 

suffering or injuring, and medical experiments. Compelling a protected 

person to serve in his enemy’s armed forces, excessive destruction of 

property, and deprivation of a fair trial are also included as they are 

applicable to a particular type of victim. 

b. With regard to grave breaches, each State has a duty to prosecute or 

extradite. (GC I, art. 49; GC II, art. 50; GC III, art. 129; GC IV, art. 146). 

Specifically, each State must: 

i. Enact penal laws criminalizing grave breaches. 

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ii. Bring persons alleged to have committed grave breaches before its 

courts, regardless of the person’s nationality. This is the basis for 

“universal jurisdiction” over grave breaches. 

iii.	 Alternatively, hand the person over to another Party willing to 

prosecute. 

c. AP I contains additional acts that constitute grave breaches of that 

Protocol. (AP I, arts. 11(4) and 85). Some of these relate to targeting 

decisions, while others are restatements, or extensions, of the Geneva 

Convention grave breaches. 

d. Grave breaches are only possible in an international armed conflict as 

defined by Common Article 2. In the Tadic case before the International 

Criminal Tribunal for the Former Yugoslavia (ICTY), the trial court found 

the defendant Not Guilty of charged grave breaches of the Geneva 

Conventions solely because, in its view, the conflict was not international 

(i.e., not a Common Article 2 conflict). The Appellate Chamber reversed, 

ruling that the conflict was international. 

2. Other, or Simple Breaches. 

a. The Conventions do not provide a term for breaches “other” than grave 

breaches; “simple” breaches is the term often used. In short, anything that 

is not a grave breach is a simple breach. 

b. With regard to simple breaches, the State’s duty is to “take measures 

necessary for the suppression of such acts.” (GC I, art. 49; GC II, art. 50; 

GC III, art. 129; GC IV, art. 146). These measures may include 

prosecution, but might also be nothing more severe than additional 

training, depending on the breach. By the terms of the Conventions, there 

is no universal jurisdiction over simple breaches. 

3. Non-International Armed Conflict. Common Article 3 provides minimum 

standards that Parties to a conflict are bound to apply, in the case of armed 

conflict not of an international character occurring in the territory of one of the 

High Contracting parties. Nothing in Common Article 3, however, discusses 

individual criminal liability for violation of those standards. Nevertheless, other 

instruments may make explicit reference to the standards of Common Article 3 

in defining war crimes under that instrument: 

1. The Rome Statute for the International Criminal Court, discussed below, 

specifically provides for prosecution of violations of Common Article 3. 

(Rome Statute, article 8(c)) 

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War Crimes and Command Responsibility 
 

2. 18 U.S.C. § 2441 (War Crimes Act of 1996, as amended) permits 

prosecutions for violations of Common Article 3 in the U.S. federal court 

system. 

D. Genocide. The Genocide Convention19 defined this crime to consist of killing and 

other acts committed with intent to destroy, in whole or in part, a national, ethnic, 

racial, or religious group, “whether committed in time of peace or in time of war.” 

(Genocide Convention, art. 1). Although the Genocide Convention defines the crime, 

it contemplates trial before “a competent tribunal of the State in the territory of which 

the act was committed, or by such international penal tribunal as may have 

jurisdiction.” (Genocide Convention, art. 6). 

E. International Criminal Court. The ICC has jurisdiction over the following crimes: 

1. Genocide. The definition (Rome Statute, art. 6) is consistent with that of the 

Genocide Convention. 

2. Crimes against Humanity. “For the purpose of this Statute, “crimes against 

humanity” means ... acts when committed as part of a widespread or systematic 

attack directed against any civilian population, with knowledge of the attack...” 

(Rome Statute, art. 7). This includes acts such as murder, extermination, 

enslavement, deportation or forcible transfer, imprisonment or severe 

depravation of physical liberty, torture, rape, sexual slavery, enforced 

prostitution, forced pregnancy, enforced sterilization, persecution against any 

identifiable group based on political, racial, national ethnic, cultural, religious, 

gender, enforced disappearance, apartheid, and other inhumane acts. 

a. Although arguably customary international law no longer requires it, 

traditionally, there had to be a link between crimes against humanity and 

an armed conflict; the ICC Statute does not specifically require such a 

nexus. 

b. However, jurisdiction exits only where the “attacks” are “widespread or 

systematic.” This language suggests that there must be something akin to 

an armed conflict or at least large-scale governmental abuse. 

3. War Crimes. For the purposes of the ICC (Rome Statute, art. 8), war crimes 

means: 

19 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. 

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a. In the case of an International Armed Conflict: 

i. Grave Breaches of the Geneva Conventions. 

ii. Serious violations of the Laws and Customs of War applicable in 

international armed conflict. The statute lists what are considered to 

be serious violations. 

b. In the case of an Non-International Armed Conflict: 

i. Violations of Common Article 3. 

ii. Other violations of the laws and customs of war “applicable ... 

within the established framework of international law.” 

A. The Statue provides a list of these crimes, drawn from various 

treaties. 

B. It also criminalizes the attack of personnel, equipment, 

installations, or vehicles involved with a UN peacekeeping or 

humanitarian mission. 

C. Recognizes that the Statute does not apply to situations of mere 

internal disturbances and tensions that do not rise to the level 

of a Common Article 3 conflict. 

c. Rome Statute, art. 9, contemplated the publication of elements to each of 

the crimes discussed above, in a manner similar to the way UCMJ 

offenses are broken down into constituent elements in the Manual for 

Courts-Martial. The elements were adopted for use in 2002.20 

4. Crime of Aggression. The ICC will have jurisdiction over the crime of 

aggression after a provision is adopted defining the crime and setting out the 

conditions under which the ICC will exercise this jurisdiction. (Rome Statute, 

art. 5(2)). The States parties to the court have not yet agreed upon a definition. 

F. Specialized Tribunals. 

20 See The International Criminal Court, Elements of Crimes, at http://www.icccpi.int/Menus/ICC/Legal+Texts+and+Tools/Official+Journal/Elements+of+Crimes.htm. See also KNUT 

DÖRMANN, ELEMENTS OF WAR CRIMES UNDER THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL 

COURT (2003), for an analysis of each of the crimes and their respective elements. 

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1. Nuremberg Tribunals. The Charter of the International Military Tribunal 

defined the following crimes21 as falling within the Tribunal’s jurisdiction: 

a. Crimes Against Peace. Planning, preparation, initiation, or waging of a 

declared or undeclared war of aggression, or war otherwise in violation of 

international treaties, agreements, or assurances. This was a charge 

intended to be leveled against high-level policy planners, not generally at 

ground commanders. 

b. Crimes Against Humanity. A collective category of major inhumane acts 

committed against any (internal or alien) civilian population before or 

during the war. 

c. Violation of the Laws and Customs of War. The traditional violations of 

the laws or customs of war; for example, targeting non-combatants. 

2. International Criminal Tribunal for the Former Yugoslavia. 

a. Crimes against Peace or Crime of Aggression are not among listed 

offenses to be tried. 

b. Violations of the Laws or Customs of War (War Crimes). 

i. Traditional offenses such as murder, wanton destruction of cities, 

towns or villages or devastation not justified by military necessity, 

firing on civilians, plunder of public or private property and taking 

of hostages. 

ii. The Opinion & Judgment in the Tadic case set forth elements of 

proof required for finding that the Law of War had been violated: 

A. An infringement of a rule of international humanitarian law 

(Hague, Geneva, other); 

B. Rule must be customary law or treaty law; 

21 See Charter of the International Military Tribunal, art. 6, annexed to the Agreement for the Prosecution 

and 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). 

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War Crimes and Command Responsibility 
C. Violation is serious; grave consequences to victim or breach of 

law that protects important values; 

D. Must entail individual criminal responsibility; and 

E. May occur in international or internal armed conflict. 

c. Crimes Against Humanity. Those inhumane acts that affront the entire 

international community and humanity at large. Crimes when committed 

as part of a widespread or systematic attack on civilian population. 

i. Charged in the indictments as murder, rape, torture, and persecution 

on political, racial, and religious grounds, extermination, and 

deportation. 

ii. In the Tadic Judgment, the Court cited elements as: 

A. A serious inhumane act as listed in Statute; 

B. Act committed in international or internal armed conflict; 

C. At the time accused acted there were ongoing widespread or 

systematic attacks directed against civilian population; 

D. Accused knew or had reason to know he/she was participating 

in widespread or systematic attack on population (actual 

knowledge); 

E. Act was discriminatory in nature; and 

F. Act had nexus to the conflict. 

iii.	 Crimes against humanity also act as a gap filler to the crime of 

Genocide, because a crime against humanity may exist where a 

political group becomes the target. 

d. Grave Breaches. As defined by the Geneva Conventions, may occur only 

in the context of an international armed conflict. 

e. Genocide. Any of the listed acts committed with intent to destroy, in 

whole or in part, a national, ethnic, racial, or religious group. 

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War Crimes and Command Responsibility 
3. International Criminal Tribunal for Rwanda. 

a. Genocide. Same definition as above. Charged in all indictments for acts 

such as torturing or killing of Tutsis. 

b. Crimes against Humanity. Crimes when committed as part of widespread 

or systematic attack against any civil population on national, political, 

ethnic, racial or religious grounds. Charged in all indictments for acts 

such as extermination of all Tutsis in a village, murder, torture or rape of 

ethnic group (Tutsi) or liberal political supporters. 

c. Violations of Common Article 3 and AP II. These are war crimes 

committed in the context of an internal armed conflict and traditionally 

left to domestic prosecution, but made subject to international prosecution 

pursuant to the Rwanda Statute. 

4. Special Court for Sierra Leone. Categories of crimes include: 

a. Crimes Against Humanity. 

b. Violations of Common Article 3 and Additional Protocol II. 

c. Other Serious Violations of International Humanitarian Law. 

d. Certain Crimes under Sierra Leonean Law, to include offenses relating to 

the abuse of girls under the Prevention of Cruelty to Children Act (1926) 

and offenses relating to the wanton destruction of property under the 

Malicious Damage Act (1861). 

5. Statute of the Iraqi High Tribunal. 

a. Genocide. 

b. Crimes Against Humanity. 

c. War Crimes. 

d. Certain Violations of Iraqi Law, to include Tampering with the Judiciary, 

War against an Arab state, and Squandering Iraqi resources. 

G. Defenses in a War Crimes Prosecution. Not well-settled based upon the competing 

interests of criminal law principles and the seriousness of protecting victims from war 

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War Crimes and Command Responsibility 
 

crimes, crimes against humanity, etc. Defenses available will be specifically 

established in the court’s constituting documents (although an argument from 

customary international law is always open as a possibility for a zealous defense 

counsel). 

1. Official Capacity or Head of State Immunity. Historically, this was thought a 

complete defense rooted in sovereign immunity. The Charter for the 

International Military Tribunal explicitly rejected the defense, stating, “The 

official position of defendants, whether as Heads of State or responsible 

officials in Government Departments, shall not be considered as freeing them 

from responsibility or mitigating punishment.” (Charter of the I.M.T., art. 7). 

The Rome Statute for the International Criminal Court contains a similar 

provision (Rome Statute, art. 27). However, in the absence of a specific treaty 

or like provision which disposes of the defense, it appears that the defense of 

official capacity exists in customary international law. The International Court 

of Justice so held when it directed Belgium to quash an indictment of a sitting 

foreign minister of the Congo alleged to have committed war crimes, including 

grave breaches of the Geneva Conventions, even though the conduct was 

committed prior to the charged person’s tenure as foreign minister.22 Insofar as 

the Court opined that Belgium could reinstate their warrant after the person had 

ceased to be foreign minister, the case could be limited to the proposition that, 

absent a conventional source which provides otherwise, the immunity of 

officials is absolute, but temporary. 

2. Superior Orders. Generally, it is only a possible defense if the defendant was 

required to obey the order, the defendant did not know it was unlawful, and the 

order was not manifestly unlawful. 

3. Duress. May be available as a defense; however, it may also only be taken into 

account as a mitigating factor depending on the specific law governing the 

court. For example, the ICTY and ICTR only allow duress to be considered as a 

mitigating factor and not as a full defense. In general, duress requires that the 

act charged was done under an immediate threat of severe and irreparable harm 

to life or limb, there was no adequate means to avert the act, the act/crime 

committed was not disproportionate to the evil threatened (crime committed is 

the lesser of two evils), and the situation must not have been brought on 

voluntarily by the defendant (i.e., did not join a unit known to commit such 

crimes routinely). 

4. Lack of Mental Responsibility. Not clearly defined in customary international 

law. Possibly available if the defendant, due to mental disease or defect, did not 

22 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, 2002 

I.C.J. 3 (Feb. 14). 

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know the nature and quality of the criminal act or was unable to control his/her 

conduct. 

IV. COMMAND RESPONSIBILITY FOR THE CRIMINAL ACTS OF SUBORDINATES 

A. Commanders may be held liable for the criminal acts of their subordinates, even if the 

commander did not personally participate in the underlying offenses, if certain criteria 

are met. Where the doctrine is applicable, the commander is accountable as if he or 

she was a principal. 

B. Customary International Treatment of Command Responsibility. 

1. As with other customary international law theories of criminal liability, the 

doctrine dates back almost to the beginning of organized professional armies. 

In his classical military treatise, Sun Tzu explained that the failure of troops in 

the field cannot be linked to “natural causes,” but rather to poor leadership. 

International recognition of the concept of holding commanders liable for the 

criminal acts of their subordinates occurred as early as 1474 with the trial of 

Peter of Hagenbach.23 

2. A commander is not strictly liable for all offenses committed by subordinates. 

The commander’s personal dereliction must have contributed to or failed to 

prevent the offense. Japanese Army General Tomoyuki Yamashita was 

convicted and sentenced to hang for war crimes committed by his soldiers in the 

Philippines. Although there was no evidence of his direct participation in the 

crimes, the Military Tribunal determined that the violations were so widespread 

in terms of time and area, that the General either must have secretly ordered 

their commission or failed in his duty to discover and control them. Most 

commentators have concluded that Yamashita stands for the proposition that 

where a commander knew or should have known that his subordinates were 

involved in war crimes, the commander may be liable if he or she did not take 

reasonable and necessary action to prevent the crimes.24 

3. Two cases prosecuted in Germany after WWII further helped to define the 

doctrine of command responsibility. 

a. In the High Command case, the prosecution tried to argue a strict liability 

standard. The court rejected this, however, and stated: “Military 

subordination is a comprehensive but not conclusive factor in fixing 

23 See William H. Parks, Command Responsibility for War Crimes, 62 MIL L. REV. 1 (1973). 

24 U.S. v. Tomoyuki Yamashita, Military Commission Appointed by Paragraph 24 , Special Orders 110, 

Headquarters United States Army Forces Western Pacific, Oct. 1, 1945. 

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War Crimes and Command Responsibility 
criminal responsibility . . . A high commander cannot keep completely 

informed of the details of military operations of subordinates . . . He has 

the right to assume that details entrusted to responsible subordinates will 

be legally executed . . . There must be a personal dereliction. That can 

only occur where the act is directly traceable to him or where his failure to 

properly supervise his subordinates constitutes criminal negligence on his 

part. In the latter case, it must be a personal neglect amounting to a 

wanton, immoral disregard of the action of his subordinates amounting to 

acquiescence. Any other interpretation of international law would go far 

beyond the basic principles of criminal law as known to civilized nations.” 

b. The court in the Hostage Case found that knowledge might be presumed 

where reports of criminal activity are generated for the relevant 

commander and received by that commander’s headquarters. 

C. AP I, art. 86. Represents the first attempt to codify the customary doctrine of 

command responsibility. The mens rea requirement for command responsibility is 

“knew, or had information which should have enabled them to conclude” that war 

crimes were being committed and “did not take all feasible measures within their 

power to prevent or repress the breach.” 

D. The International Criminal Tribunals for the Former Yugoslavia and Rwanda. 

1. “Individual Criminal Responsibility: The fact that any of the acts referred to in 

articles 2 to 5 of the present Statute were committed by a subordinate does not 

relieve his superior of criminal responsibility if he knew or had reason to know 

that the subordinate was about to commit such acts or had done so and the 

superior failed to take the necessary and reasonable measures to prevent such 

acts or to punish the perpetrators thereof.” (ICTY Statute, art. 7(3); ICTR 

Statute, art. 6(3)(emphasis added)) 

2. In ICTR, the doctrine of superior responsibility was used in numerous 

indictments; for example, those against Theoneste Bagosora (assumed official 

and de facto control of military and political affairs in Rwanda during the 1994 

genocide) and Jean Paul Akayesu (bourgmestre (mayor), responsible for 

executive functions and maintenance of public order within his commune). 

3. In ICTY, the doctrine of command responsibility was used in numerous 

indictments, to include those against Slobodan Milosevic (President of the 

FRY), Radovan Karadzic (as founding member and President of Serbian 

Democratic Party) and Gen. Ratko Mladic (Commander of JNA Bosnian Serb 

Army). 

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War Crimes and Command Responsibility 
E. The International Criminal Court establishes its definition of the requirements for the 

responsibility of Commanders and other superiors in Article 28 of the Rome Statute. 

Note that the responsibility of military commanders and those functioning as such 

addressed in subparagraph (a) differs from other superiors, i.e., civilian leaders 

(subparagraph (b)), in that only military commanders are responsible for information 

they should have known. 

1. Art. 28(a) states: “A military commander or person effectively acting as a 

military commander shall be criminally responsible for crimes within the 

jurisdiction of the Court committed by forces under his or her effective 

command and control, or effective authority and control as the case may be, as a 

result of his or her failure to exercise control properly over such forces, where: 

a. That military commander or person either knew or, owing to the 

circumstances at the time, should have known that the forces were 

committing or about to commit such crimes; and 

b. That military commander or person failed to take all necessary and 

reasonable measures within his or her power to prevent or repress their 

commission or to submit the matter to the competent authorities for 

investigation and prosecution.” 

2. Art. 28(b) states: “With respect to superior and subordinate relationships not 

described in paragraph (a), a superior shall be criminally responsible for crimes 

within the jurisdiction of the Court committed by subordinates under his or her 

effective authority and control, as a result of his or her failure to exercise control 

properly over such subordinates, where: 

a. The superior either knew, or consciously disregarded information which 

clearly indicated, that the subordinates were committing or about to 

commit such crimes; 

b. The crimes concerned activities that were within the effective 

responsibility and control of the superior; and 

c. The superior failed to take all necessary and reasonable measures within 

his or her power to prevent or repress their commission or to submit the 

matter to the competent authorities for investigation and prosecution.” 

F. Prosecution of command responsibility cases in the U.S. Military. 

1. It is U.S. Army policy that soldiers be tried in courts-martial rather than 

international forums. (FM 27-10, para. 507) 

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War Crimes and Command Responsibility 
 

 

2. No separate crime of command responsibility or theory of liability exists, such 

as conspiracy, for command responsibility in the UCMJ.25 

3. UCMJ, art. 77, Principals. 

a. For a person to be held liable for the criminal acts of others, the nonparticipant must share in the perpetrator’s purpose of design, and “assist, 

encourage, advise, instigate, counsel, command, or procure another to 

commit, or assist....” Where a person has a duty to act, such as a security 

guard, inaction alone may create liability. However, Art. 77 suggests that 

actual knowledge, not a lack of knowledge due to negligence, is required. 

b. At the court-martial of Captain Medina for his alleged participation in the 

My Lai incident in Vietnam, the military judge instructed the panel that 

they would have to find that Medina, the company commander, had actual 

knowledge in order to hold him criminally liable for the massacre. There 

was not enough evidence to convict Captain Medina under the standard 

and he was acquitted of the charges.26 Accordingly, it appears that in 

courts-martial, a prosecutor must establish actual knowledge on the part of 

the accused. 

V. FORUMS FOR THE PROSECUTION OF WAR CRIMES 

A. International v. Domestic Crimes. 

1. Built on the concept of national sovereignty, jurisdiction traditionally follows 

territoriality or nationality. 

2. Universal international jurisdiction first appeared in piracy cases where the goal 

was to protect trade and commerce on the high seas, an area generally believed 

to be without jurisdiction. 

3. Universal jurisdiction in war crimes only first came into being in the days of 

chivalry where the warrior class asserted its right to punish knights that had 

violated the honor of the profession of arms, irrespective of nationality or 

location. The principle purpose of the law of war eventually became 

humanitarianism. The international community argued that crimes against 

“God and man” transcended the notion of sovereignty. 

25 For a discussion of this and some proposed changes, see Michael L. Smidt, Yamashita, Medina and 

Beyond: Command Responsibility in Contemporary Military Operations, 164 MIL. L. REV. 155 (2000). 

26 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). 

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War Crimes and Command Responsibility 
B. Current International Jurisdictional Basis. 

1. Grave Breaches of the Geneva Conventions 

a. As discussed above, the Geneva Conventions establishes universal 

jurisdiction over those offenses which it defines as grave breaches. “Each 

High Contracting Party . . . shall bring [persons alleged to have committed 

grave breaches], regardless of their nationality, before its own courts.” 

(GC I, art. 49; GC II, art. 50; GC III, art. 129; GC IV, art. 146.) 

b. There is no comparable provision granting universal jurisdiction over 

simple breaches. 

2. Violation of the Laws and Customs of War. It is not clear the extent to which 

customary international law vests universal jurisdiction is States for serious 

violations of the law of war other than Geneva Conventions grave breaches. 

Most prosecutions have been sponsored by States intimately affected by the 

violations (e.g., Nuremburg, Tokyo) or been sanctioned by UN Security Council 

action. Some States, notably Belgium and Spain, have been active in charging 

alleged war criminals around the world. Spain has limited itself to cases where 

there has been a connection with Spain, generally cases where Spanish citizens 

have been among the victims. Belgium, in a 1993 law, passed a true universal 

jurisdiction law, which required no connection at all between the charged 

conduct and Belgium at all. The law was revised in 2003, however, to limit 

charges to those alleged offenses with a direct link to Belgium. 

3. International Criminal Court. 

a. The ICC has personal jurisdiction over: 

i. State parties; 

ii. Nationals of State parties; 

iii.	 Conduct occurring within the territory of State parties; 

iv. Non-party States acceding to jurisdiction 

b. Recently, the ICC has been granted personal jurisdiction over nationals of 

non-signatory States through a UNSCR establishing jurisdiction. See 

UNSCR 1593 (referring charges to the ICC against sitting Sudanese 

President Omar el-Bashir for war crimes). 

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War Crimes and Command Responsibility 
 

4. Ad hoc tribunals under the authority of UN Security Council (ICTY or ICTR) or 

separate treaty (Sierra Leone). Established via a UNSCR. 

C. Domestic Jurisdictional Bases. Each nation provides its own jurisdiction. The 

following is the current U.S. structure. 

1. General Courts-Martial. 

a. U.S. service members are subject to court-martial jurisdiction under 

UCMJ, art 2(a)(1). 

b. UCMJ, art. 18, also grants general court-martial jurisdiction over “any 

person who by the law of war is subject to trial by military tribunal.” 

c. In 2006, Congress amended UCMJ, art. 2(a)(10), to provide court-martial 

jurisdiction over civilians accompanying U.S. forces not only during a 

declared war27 but also during “contingency operations,” which would 

include OIF and OEF 

2. War Crimes Act of 1996. (18 U.S.C. § 2441) (amended in 1997 and 2006). 

Authorizes the prosecution of individuals in federal court if the victim or the 

perpetrator is a U.S. national (as defined in the Immigration and Nationality 

Act) or member of the armed forces of the U.S., whether inside or outside the 

U.S.. Jurisdiction attaches if the accused commits: 

a. A Grave Breach of the 1949 Geneva Conventions. 

b. Violations of certain listed articles of the Hague Conventions. 

c. Some violations of Common Article 3 of the Geneva Conventions. 

d. Violations of Amended Protocol II to the Conventional Weapons Treaty. 

D. The Military Extraterritorial Jurisdiction Act of 2000 may also serve as a basis for 

prosecution for war crimes. DoD issued implementing instructions in DoD 

Instruction 5525.11 on Mar. 3, 2005. 

E. Military Commissions. 

27 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). 

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War Crimes and Command Responsibility 
 

1. Military commissions, tribunals, or provost courts may try individuals for 

violations of the law of war. (UCMJ, art. 21). This jurisdiction is concurrent 

with that of general courts-martial. 

2. Historical use can be traced back to Gustavus Adolphus and his use of a board 

of officers to hear law of war violations and make recommendations on their 

resolution. Frequent use in British military history, which was incorporated into 

the U.S. Military from its beginning. Used first in U.S. to try Major John Andre 

for spying in conjunction with General Benedict Arnold. Later used by then 

General Andrew Jackson after the Battle for New Orleans in 1815, and again 

during the Seminole War and the Mexican-American War. Used extensively in 

Civil War to deal with people hostile to Union forces in “occupied” territories. 

Its use continued in subsequent conflicts and culminated in World War II where 

military commissions prosecuted war crimes both in the United States and 

extensively overseas. Such use places the legitimacy of military commissions 

to try persons for war crimes firmly in customary international law. 

3. In Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the Supreme Court called into 

question the President’s unilateral power to convene military commissions, a 

power which had earlier been recognized in Ex parte Quirin, 317 U.S. 1 (1942). 

Congress responded with Military Commissions Act of 2006.28 The Act was 

revised and amended by the Military Commissions Act of 2009.29 Among its 

most important provisions: 

a. Jurisdiction is established over an alien who is also an “unprivileged 

enemy belligerent,” defined as an individual other than a privileged 

belligerent (i.e., one who qualifies for POW protection under GC III, art. 

4) who: 

i. Has engaged in hostilities against the United States or its coalition 

partners; 

ii. Has purposefully and materially supported hostilities against the 

United States or its coalition partners; or 

ii.	 Was a part of al Qaeda at the time of the alleged offense.30 

28 Military Commissions Act of 2006, Pub L. No. 109-366, 120 Stat. 2600 (2006), codified at 10 U.S.C. 

§§ 948a et seq. 

29 Military Commissions Act of 2009, Pub. L. No. 111-84, 123 Stat. 2190. 

30.10 U.S.C. § 948a. 

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War Crimes and Command Responsibility 
 

 

 

 

 

b. Sets forth in detail procedures to be followed in such commissions, which 

generally follow those of general courts-martial, with the exception of: 

i. Speedy trial; 

ii.	 Rules related to compulsory self-incrimination; and 

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

investigations).31 

c. Specifically excludes from evidence any statements obtained through 

torture or other cruel, inhuman, or degrading treatment. Other statements 

are admissible if probative and voluntary.32 

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

The crimes are generally consistent with “classic” war crimes, though a 

new offense of “terrorism” is included.34 

FOR FURTHER READING 

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

(42 volumes). 

B. TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER 

CONTROL COUNCIL LAW NO. 10 (1950) (15 volumes). 

C. INTERNATIONAL JAPANESE WAR CRIMES TRIALS IN THE INTERNATIONAL MILITARY 

TRIBUNAL FOR THE FAR EAST (209 volumes). 

D. UNITED NATIONS WAR CRIMES COMMISSION, LAW REPORTS OF TRIALS OF WAR 

CRIMINALS (1948) (15 volumes). 

E. UNITED NATIONS WAR CRIMES COMMISSION, HISTORY OF THE UNITED NATIONS WAR 

CRIMES COMMISSION (1948). 

31 10 U.S.C. § 948b. Sub-chapters III – VII contain the detailed procedures, from Pre-Trial through PostTrial matters.
 

32 10 U.S.C. § 948r.
 

33 10 U.S.C. § 950t.
 

34 10 U.S.C. § 950t(24).
 

182 

War Crimes and Command Responsibility 
F. Statute of the International Criminal Tribunal for the Former Yugoslavia. S.C. Res. 

827, U.N. SCOR, 48th Sess., 3217th mtg., U.N.Doc. S/RES/808 (1993); further 

amended in U.N. Security Council Resolutions 1166 (13 May 1998), 1329 (30 Nov 

2000) and 1411 (17 May 2002). 

G. Rules of Procedure & Evidence, International Criminal Tribunal for the Former 

Yugoslavia Since 1991, Seventh Session, the Hague, U.N. Doc. IT/32/Rev. 22 (Dec. 

13, 2001). 

H. S.C. Res, 955, U.N. SCOR, U.N. DOC. S/RES/955(1994), reprinted in 33 I.L.M. 

1598, Nov. 8, 1994 [Statute for the International Criminal Tribunal for Rwanda]. 

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

183 

War Crimes and Command Responsibility 
184 

War Crimes and Command Responsibility 
 

HUMAN RIGHTS
 

I. OBJECTIVES
 

A. Understand the history and development of international human rights law and how it 

interacts with the law of war. 

B. Understand those human rights considered customary international law. 

C. Understand major international human rights treaties, their scope and application, as 

well as the Unites States’ approach to human rights treaty law. 

D. Understand different regional international human rights systems. 

II. INTRODUCTION 

A. Human rights law1 focuses on the life and dignity of human beings. In contrast 

with most international law, international human rights law protects persons as 

individuals rather than as subjects of sovereign States. 

B. To best understand international human rights law, it may be useful to think in terms 

of obligation versus aspiration. International human rights law exists in two forms: 

treaty law and customary international law (CIL).

2

 Human rights law established 

by treaty generally only binds the state in relation to persons within its territory and 

subject to its jurisdiction, and tends to be more aspirational. Human rights law based 

on CIL binds all States, in all circumstances, and is thus obligatory. For official U.S. 

personnel (“State actors” in the language of human rights law) dealing with civilians 

outside the territory of the United States, it is CIL that establishes the human rights 

considered fundamental, and therefore obligatory. Unfortunately, however, there 

exists no authoritative source that articulates which human rights the United States 

considers to be CIL. 

III. HISTORY AND DEVELOPMENT OF INTERNATIONAL HUMAN RIGHTS LAW 

A. As a field of international law, human rights did not fully develop until the years 

following World War II. The systematic abuse and near-extermination of entire 

1

 All references to “human rights law” in this chapter refer to international human rights law, not to 

domestic human rights law. 

2 See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES, at § 701 (2003) 

[hereinafter Restatement]. 

185 

Human Rights 
 

 

 

populations by States gave rise to a truly revolutionary aspect of human rights as 

international law. Prior to modern human rights law, how States treated their own 

citizens was regarded as a purely domestic matter. Furthermore, individuals had 

not been the object of protection 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 system, States could expect other States not to interfere 

in their internal affairs. Human rights law, however, pierced the “veil of sovereignty” 

by seeking directly to regulate how States treated their own people within their 

own borders.

3 

1. The Nuremberg War Crimes Trials are an example of a human rights 

approach to protection. The trials held former government officials legally 

responsible for the treatment of individual citizens within the borders of their 

state. The trials did not rely on domestic law, but rather on novel charges like 

“crimes against humanity.” 

2. Human rights occupied a central place in the newly formed United Nations. 

The Charter of the United Nations contains several provisions dealing directly 

with human rights. One of the earliest General Assembly resolutions, the 

Universal Declaration of Human Rights4

 (UDHR), is undoubtedly the 

strongest international statement of universal human rights norms. 

3. Following the adoption of the 1949 Geneva Conventions, development of the 

law of war (LOW) began to stall. Through the so-called Geneva Tradition, the 

Conventions had introduced an approach to regulating armed conflict that 

focused on protecting and respecting individuals. By the mid-1950’s, however, 

the LOW process stalled completely. The international community largely 

rejected the 1956 Draft Rules for Limitation of Dangers Incurred by Civilian 

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

In fact, the LOW would not see a significant development in humanitarian 

protections until the 1977 Additional Protocols. 

4. At the same time, however, human rights law experienced a boom. Two of the 

most significant human rights treaties, the International Covenant on Civil and 

3 See Louis Henkin, THE INTERNATIONAL BILL OF RIGHTS: THE COVENANT ON CIVIL AND POLITICAL 

RIGHTS, 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 institutions 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 Civilian Population in Time of War, 

reproduced in DIETRICH SCHINDLER & JIŘĪ TOMAN, THE LAWS OF ARMED CONFLICT, 339 (2004). 

186 

Human Rights 
 

 

 

 

Political Rights6 (ICCPR) and the International Covenant on Economic Social 

and Cultural Rights,7

 were adopted and opened for signature in 1966. 

B. Human Rights and Law of War. Scholars and States disagree over the interaction 

between human rights law and the LOW. Positions range from arguments that they 

are entirely separate systems to a view that makes the LOW a completely integrated 

component of human rights law.8 In the late-1960’s, the United Nations General 

Assembly took on the application of human rights during armed conflict.9 

Ultimately, however, the resolutions produced few useful pronouncements and many 

ambiguous references to humanitarian principles. 

1. The Traditional / United States View.

10 Traditionally, human rights law and the 

LOW have been viewed as separate systems of protection. This classic view 

applies human rights law and the LOW to different situations and different 

relationships respectively. 

a. Human rights law, in the traditional view, regulates the relationship 

between States and individuals within their territory and under their 

jurisdiction and may, however, be inapplicable during emergencies. This 

reflects the original focus of human rights law, which was to protect 

individuals from the harmful acts of their own governments. 

b. Law of War, in the traditional view, regulates wartime relations between 

belligerents and civilians as well as protected persons, usually not one’s 

own citizens or nationals. The traditional view notes that LOW largely 

predates human rights law and, therefore, was never intended to comprise 

a sub-category of human rights law. This view notes that LOW includes 

very restrictive triggering mechanisms which limit its application to 

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

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

9

 G.A. Res. 2675 (1970); G. A. Res. 2444 (1968) "Respect for Human Rights in Armed Conflict"; UN 

GAOR 29th Sess. Supp. No. 31. Professor Schindler argues that while the UN said "human rights" in 

these instruments, it meant "humanitarian law." Dietrich Schindler, Human Rights and Humanitarian 

Law: The Interrelationship of the Laws, 31 AM. U. L. REV. 935 (1982) [hereinafter Schindler]. 

10 Michael J. Dennis, Applying Human Rights Law and Humanitarian Law in the Extraterritorial War 

Against Terrorism: Too Little, Too Much, Or Just Right?: Application of Human Rights Treaties 

Extraterritorially to Detention of Combatants and Security Internees: Fuzzy Thinking all Around?, 12 

ILSA J. INT’L & COMP. L. 459 (2006). 

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Human Rights 
 

 

 

 

 

specific circumstances.11 As such, LOW is cited as a lex specialis to 

situations of armed conflict and therefore applies in lieu of human rights 

law.12 This view, however, is becoming increasingly hard to maintain.13 

2. Emerging view. An expanding group of scholars and States has come to view 

the application of human rights law and LOW as overlapping. In this view, 

human rights law may create rights and duties beyond national borders between 

States and alien individuals during periods of armed conflict as well as during 

peace. The International Court of Justice recently adopted this view in two 

different Advisory Opinions.14 

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 neocolonialist 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 of 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 LAW AT 

THE CENTRE, THE INSTITUTE OF ADVANCED LEGAL STUDIES AT FIFTY (1999); 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 Affinities? Human Rights and Humanitarian Law 90 INT’L. REV. 

RED CROSS 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, Advisory Opinion, 1996 I.C.J. 226. (“The Court 

observes that the protection of the International Covenant on Civil and Political Rights does not cease in 

times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be 

derogated from in a time of national emergency.”). Legal Consequences of the Construction of a Wall in 

the Occupied Palestinian Territory, Advisory Opinion, 2004, I.C.J. 36. The Advisory Opinion in the Wall 

case explained the operation of this “emerging view” as follows: 

As regards the relationship between international humanitarian law and human rights law, there are 

thus three possible situations: some rights may be exclusively matters of international humanitarian 

law; others may be exclusively matters of human rights law; yet others may be matters of both these 

branches of international law. In order to answer the question put to it, the Court will have to take 

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

specialis, international humanitarian law. 

15 MANFRED NOWAK, INTRODUCTION TO THE INTERNATIONAL HUMAN RIGHTS REGIME 2 (2003) 

[hereinafter NOWAK]. 

16 See DARREN J. O’BYRNE, HUMAN RIGHTS: AN INTRODUCTION 52-55 (2003) (discussing Marxist, 

Confucian, and Islamic attitudes toward concepts of universal human rights); UPENDRA BAXI, THE 

FUTURE OF HUMAN RIGHTS 132-35 (2002) (citing ARJUN APPADURAI, MODERNITY AT LARGE: 

CULTURAL DIMENSIONS OF GLOBALIZATION (1997); MIKE FEATHERSTONE, UNDOING CULTURE: 

GLOBALIZATION, POSTMODERNISM AND IDENTITY (1995)). 

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Human Rights 
 

 

 

these two regions has a separate human rights system, such as the European, InterAmerican, or African systems, discussed infra. 

IV. FUNDAMENTAL HUMAN RIGHTS: THE OBLIGATION 

A. If a specific human right falls within the category of CIL, it should be considered a 

“fundamental” human right. As such, it is binding on U.S. forces during all overseas 

operations. This is because CIL is considered part of U.S. law,17 and human rights 

law operates to regulate the way State actors (in this case the U.S. armed forces) treat 

all humans.18 If a “human right” is considered to have risen to the status of CIL, then 

it is considered binding on U.S. State actors wherever such actors deal with human 

beings. Unfortunately, for the military practitioner there is no definitive “source 

list” of those human rights considered by the United States to fall within this 

category of fundamental human rights. As a result, the Judge Advocate (JA) must 

rely on a variety of sources to answer this question. These sources may include: the 

UDHR, although the United States has not taken the position that everything in the 

UDHR is CIL; Common Article 3 of the Geneva Conventions; and the Restatement 

(Third) of The Foreign Relations Law of the United States (2003). The Restatement 

claims that a State violates international law when, as a matter of policy, it “practices, 

encourages, or condones”19 a violation of human rights considered CIL.20 

Furthermore, the Restatement makes no qualification as to where the violation might 

occur, or against whom it may be directed. Therefore, it is the CIL status of certain 

human rights that renders respect for such human rights a legal obligation on the part 

of U.S. forces conducting operations outside the United States, and not the fact that 

they may be reflected in treaties ratified by the United States. 

V. HUMAN RIGHTS TREATIES 

A. The original focus of human rights law—to protect individuals from the harmful acts 

of their own governments21—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 RESTATEMENT, supra note 2 at § 111. 

18 RESTATEMENT, supra note 2, at §701. 

19 Id. 

20 The Restatement gives the following examples of human rights that fall within the category of CIL: 

genocide, slavery, murder or causing the disappearance of individuals, torture or other cruel, inhuman, or 

degrading treatment or punishment, violence to life or limb, hostage taking, punishment without fair trial, 

prolonged arbitrary detention, failure to care for and collect the wounded and sick, systematic racial 

discrimination, and consistent patterns of gross violations of internationally recognized human rights. Id. 

at §702. 

21 See RESTATEMENT, supra note 2, and accompanying text. 

189 

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 United States had not ratified any 

major international human rights treaties.23 Since then, the United States has ratified 

a few international human rights treaties, including the International Covenant on 

Civil and Political Rights; however, there are numerous human rights treaties that the 

United States has not ratified. The following is a list of the major international 

human rights treaties including a brief description of each one and whether the United 

States is a party to the treaty. 

1. International Covenant on Civil and Political Rights (ICCPR) (1966).

24 The 

most preeminent international human rights treaty, the ICCPR was ratified by 

the United States in 1992. It is administered by UN Human Rights Committee 

(HRC). Parties must submit reports in accordance with Committee guidelines 

for review by the HRC. The HRC may question State representatives on the 

substance of their reports. The HRC may report to the UN Secretary General. 

The HRC issues General Comments to members but those comments have no 

binding force in international law. The ICCPR addresses so-called “first 

generation rights.” These include the most fundamental and basic rights and 

freedoms. Part III of the Covenant lists substantive rights. 

a. The ICCPR is expressly non-extraterritorial. Article 2, clause 1 limits a 

Party’s obligations under the Covenant to “all individuals within its 

territory and subject to its jurisdiction . . .” Although some commentators 

and human rights bodies have argued for a disjunctive reading of “and,” 

such that the ICCPR would cover anyone simply under the control of a 

Party, 25 the United States interprets the extraterritoriality provision 

narrowly.26 

22 See id. at Part VII, Introductory Note. 

23 THOMAS BUERGENTHAL ET. AL., INTERNATIONAL HUMAN RIGHTS IN A NUTSHELL 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 

190 

Human Rights 
 

 

b. First Optional Protocol. The First Optional Protocol to the ICCPR 

empowers private parties to file “communications” with the UN HRC. 

Communications have evolved to operate as a basis for individual causes 

of action under the ICCPR. United States is not a party to the First 

Protocol. 

c. Second Optional Protocol. The Second Optional Protocol to the ICCPR 

seeks to abolish death penalty. United States is also not a party to the 

Second Protocol. 

2. International Covenant on Economic, Social, and Cultural Rights (ICESCR) 

(1966). The ICESCR deals with so-called “second generation human rights.”27 

Included in the ICESCR are the right to self-determination (art. 1), the right to 

work (art. 6), the right to adequate standard of living (art. 11), and the right to 

an education (art. 13). States that are party to this treaty undertake “to take 

steps, individually and through international assistance and co-operation, 

especially economic and technical, to the maximum of [their] available 

resources, with a view to achieving progressively the full realization of the 

rights recognized in the . . . Covenant.” (art. 2). The ICESCR does not establish 

a standing committee. Reports go to the Committee on Economic, Social, and 

Cultural Rights, which is composed of eighteen elected members. There is no 

procedure for individual complaint. The Committee uses General Comments to 

Parties to highlight and encourage compliance. As with the ICCPR, these 

general comments are not binding international law. The United States is not 

a party to the ICESCR. 

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

(1948). The United States signed the Genocide Convention in 1948, transmitted 

to Senate in 1949, and ratified in 1988. The Genocide Convention was the 

first international human rights treaty and also the first one that the United 

States ratified. 

4. Convention Against Torture and Other Cruel, Inhuman, and Degrading 

Treatment (CAT) (1984).

29 The CAT is a United Nations treaty, administered 

by UN Committee on Torture, which is composed of ten elected experts. The 

Committee is informed by periodic reporting system and inter-state and 

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 NOWAK, 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. 

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Human Rights 
 

individual complaint procedures. Article 20 empowers the Committee to 

conduct independent investigations, but it must have cooperation of the State 

Party subject of investigation. The Convention Against Torture (CAT) requires 

States party to the Convention to take “effective legislative, administrative, 

judicial or other measures to prevent acts of torture in any territory under [their] 

jurisdiction.” (CAT, art. 2(1)). The United States ratified the CAT in 1994. 

5. Convention on the Elimination of All Forms of Racial Discrimination30 

(CEFRD) (1965). The CEFRD prohibits and defines racial discrimination as 

“any distinction, exclusion, restriction or preference based on race, colour, 

descent, or national or ethnic origin” to “nullify[] or impair[] the recognition, 

enjoyment or exercise, on an equal footing, of human rights and fundamental 

freedoms in the political, economic, social, cultural or any other filed of public 

life.”31 The parties agree to eliminate racial discrimination and apply rights set 

out in the Universal Declaration of Human Rights and the two Covenants. The 

CEFRD is administered by United Nations Committee on the Elimination of 

Racial Discrimination. The United States signed in 1966, transmitted to the 

Senate in 1978, and ratified the CEFRD in 1994.

32 

C. The United States Treaty Process. 

1. Article II, Section 2, clause 2 of the United States Constitution enumerates to 

the President the power to make treaties. After receiving the advice and consent 

of two-thirds of the Senate, the President may ratify a treaty. Article VI of the 

United States Constitution establishes treaties as “the supreme Law of the 

Land.” Consequently, treaties enjoy the same force as statutes. When treaties 

and statutes conflict, the later in time is law. 

2. Reservations, Understandings and Declarations (RUDs). The United States 

policy toward human rights treaties relies heavily on RUDs. RUDs have been 

essential to mustering political support for ratification of human rights treaties 

in the United States Senate. 

a. Reservations modify treaty obligations with respect to relevant provisions 

between parties that accept the reservation; reservations do not modify 

30 International Convention on the Elimination 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 congressional delegation’s concern over the international community's view of Jim Crow 

laws in the South delayed U.S. ratification of this treaty, which was implemented by the Genocide 

Convention Implementation Act of 1987. See Genocide Convention Implementation Act of 1987, 18 

U.S.C. §§ 1091-93. 

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Human Rights 
 

 

 

provisions for other parties; if a State refuses a reservation but does not 

oppose entry into force between the reserving State and itself, the 

provision proposed for reservation does not operate between the two 

States.33 An example of a reservation would be the United States’ 

reservation to the ICCPR whereby it “reserves the right, subject to its 

Constitutional constraints, to impose capital punishment on any person 

(other than a pregnant woman) duly convicted under existing or future 

laws permitting the imposition of capital punishment, including such 

punishment for crimes committed by persons below eighteen years of 

age.”34 

b. Understandings are statements intended to clarify or explain matters 

incidental to the operation of the treaty. For instance, a State might 

elaborate on or define a term applicable to the treaty. Understandings 

frequently clarify the scope of application. An example of an 

understanding would be the United States’ understanding to the ICCPR 

whereby it stated “[t]hat the United States understands that this Covenant 

shall be implemented by the Federal Government to the extent that it 

exercises legislative and judicial jurisdiction over the matters covered 

therein, and otherwise by the state and local governments.”35 

c. Declarations give notice of certain matters of policy or principle. For 

instance, a State might declare that it regards a treaty to be non-selfexecuting under its domestic law.36 

d. United States practice. When the Senate includes a reservation or 

understanding in its advice and consent, the President may only ratify the 

treaty to the extent of the ratification or understanding. 

D. Application of Human Rights Treaties. Understanding how the U.S. applies human 

rights treaties requires an appreciation of two concepts: non-extraterritoriality and 

non-self execution. 

33 Vienna Convention on the Law of Treaties, .N. Doc. A/CONF.39/27 (1969), reprinted in 63 AM. J. 

INT’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 Approved 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 self-executing.”). 

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1. Non-extraterritoriality. In keeping with the original focus of human rights 

law, the United States interprets human rights treaties to apply to persons living 

in the territory of the United States, and not to any person with whom agents of 

our government deal outside of our borders.37 This theory of treaty 

interpretation is referred to as “non-extraterritoriality.”38 The result of this 

theory is that these international agreements do not create treaty-based 

obligations on U.S. forces when dealing with civilians in another country during 

the course of a contingency operation. This distinction between the scope of 

application of fundamental human rights, which have attained CIL status, versus 

the scope of application of non-core treaty based human rights, is a critical 

aspect of human rights law JAs must grasp. 

2. Non-self execution. While the non-extraterritorial interpretation of human 

rights treaties is the primary basis for the conclusion that these treaties do not 

bind U.S. forces outside the territory of the U.S., JAs must also be familiar with 

the concept of treaty execution. According to this treaty interpretation 

doctrine, although treaties entered into by the United States become part of the 

“supreme law of the land,” 39 some are not enforceable in U.S. courts absent 

subsequent legislation or executive order to “execute” the obligations created by 

such treaties. 

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 the 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 States. See RESTATEMENT, supra note 2, at 

§322(2) and Reporters’ Note 3; see also CLAIBORNE PELL REPORT ON THE INTERNATIONAL COVENANT 

ON CIVIL AND POLITICAL RIGHTS, S. EXEC. COC. NO. 102-23 (Cost Estimate) (This Congressional Budget 

Office Report indicated that the Covenant was designed to guarantee rights and protections to people 

living within the territory of the nations that ratified it). 

38 See Theodore Meron, Extraterritoriality of Human Rights Treaties, 89 AM. J. INT’L L. 78-82 (1995); 

see also CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL’S SCHOOL, 

UNITED STATES ARMY, LAW AND MILITARY OPERATIONS IN HAITI, 1994-1995, at 49 (1995) (citing 

human rights groups that mounted a defense for an Army captain that misinterpreted the ICCPR to create 

an affirmative obligation to correct human rights violations within a Haitian Prison). See also LAWYERS’ 

COMMITTEE FOR HUMAN RIGHTS, PROTECT OR OBEY: THE UNITED STATES ARMY VERSUS CPT 

LAWRENCE ROCKWOOD 5 (1995) (reprinting an amicus brief submitted in opposition to a prosecution 

pretrial motion). 

39 U.S. CONST. art VI. According to the Restatement, “international agreements are law of the United 

States and supreme over the law of the several states.” RESTATEMENT, supra note 2, at §111. The 

Restatement Commentary states the point even more emphatically: “[T]reaties made under the authority 

of the United States, like the Constitution itself and the laws of the United States, are expressly declared 

to be ‘supreme Law of the Land’ by Article VI of the Constitution.” Id. at cmt. d. 

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a. This “self-execution” doctrine relates primarily to the ability of a litigant 

to secure enforcement for a treaty provision in U.S. courts.40 However, the 

impact on whether a JA should conclude that a treaty creates a binding 

obligation on U.S. forces is potentially profound. First, there is an 

argument that if a treaty is considered non-self-executing, it should not be 

regarded as creating such an obligation.41 More significantly, once a treaty 

is executed, it is the subsequent executing legislation or executive order, 

and not the treaty provisions, that is given effect by U.S. courts, and 

therefore defines the scope of U.S. obligations under our law.42 U.S. 

courts have generally held human rights treaties to be non-self-executing 

and therefore not bases for causes of action in domestic courts.43 

b. The U.S. position regarding the human rights treaties discussed above is 

that “the intention of the United States determines whether an agreement 

is to be self-executing or should await implementing legislation.”44 Thus, 

the U.S. position is that its unilateral statement of intent, made through the 

40 See RESTATEMENT, 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-executing conclusion is questionable: 

“[I]f the Executive Branch has not requested implementing legislation and Congress has not enacted such 

legislation, there is a strong presumption that the treaty has been considered self-executing by the political 

branches, and should be considered self-executing by the courts.” RESTATEMENT, supra note 2, at §111, 

Reporters Note 5. Second, it translates a doctrine of judicial enforcement into a mechanism whereby U.S. 

state actors conclude that a valid treaty should not be considered to impose international obligations upon 

those state actors, a transformation that seems to contradict the general view that failure to enact 

executing legislation when such legislation is needed constitutes a breach of the relevant treaty obligation. 

“[A] finding that a treaty is not self-executing (when a court determines there is not executing legislation) 

is a finding that the United States has been and continues to be in default, and should be avoided.” Id. 

42 “[I]t is the implementing legislation, rather than the agreement itself, that is given effect as law in the 

United States.” Id. Perhaps the best recent example of the primacy of implementing legislation over 

treaty text in terms of its impact on how U.S. state actors interpret our obligations under a treaty was the 

conclusion by the Supreme Court of the United States that the determination of refugee status for 

individuals fleeing Haiti was dictated not pursuant to the Refugee Protocol standing alone, but by the 

implementing legislation for that treaty – the Refugee Act. United States v. Haitian Centers Council, Inc., 

113 S. Ct. 2549 (1993). 

43 In Sei Fujii v. California, 38 Cal. 2d, 718, 242 P. 2d 617 (1952), the California Supreme Court heard a 

claim that UN Charter Articles 55 and 56 invalidated the California Alien Land Law. The land law had 

varied land owner rights according to alien status. The court struck down the law on equal protection 

grounds but overruled the lower court’s recognition of causes of action under the UN Charter. The court 

stated, “The provisions in the [C]harter pledging cooperation in promoting observance of fundamental 

freedoms lack the mandatory quality and definiteness which would indicate an intent to create justiciable 

rights in private persons immediately upon ratification.” 242 P. 2d at 621-22. Federal and state courts 

have largely followed Sei Fujii’s lead. 

44 See RESTATEMENT, supra note 2, at § 131. 

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vehicle 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 derogations clause. Derogation refers to the legal 

right to suspend certain human rights treaty provisions in time of war or in 

cases of national emergencies. Certain rights, however, may not be derogated 

from: 

a. Right to life; 

b. Prohibition on torture; 

c. Prohibition on slavery; 

d. Prohibition on ex post punishment; 

e. Nor may States adopt measures inconsistent with their obligations under 

international law. 

VI. INTERNATIONAL HUMAN RIGHTS SYSTEMS 

A. General. International human rights are developed and implemented through a 

layered structure of complimentary and coextensive systems. “The principle of 

universality does not in any way rule out regional or national differences and 

peculiarities.”46 As the United States participates in combined operations, JAs will 

find that allies may have very different conceptions of and obligations under human 

rights law. In addition to the global system of the United Nations, regional human 

rights systems, such as the European, Inter-American, and African systems, have 

developed in complexity and scope. Judge Advocates will benefit from an 

appreciation of the basic features of these systems as they relate to allies’ willingness 

to participate in and desire to shape operations.47 Moreover, in an occupation setting, 

JAs must understand the human rights obligations, both international and domestic, 

that may bind the host nation as well as how that host nation interprets those 

obligations. 

45 See RESTATEMENT, supra note 2, at § 111, cmt. 

46 NOWAK, supra note 15, at 2. 

47 Sei Fujii v. California, 38 Cal.2d 718, 242 P.2d 617 (1952). 

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Human Rights 
 

B. The United Nations System. An understanding of international human rights 

obligations begins with the primary human rights system, the UN system, the 

foundation of which is the Universal Declaration of Human Rights. 

1. The Universal Declaration of Human Rights (UDHR). The UDHR was a UN 

General Assembly Resolution passed on December 10, 1946. The UDHR is not 

a treaty but many of its provisions reflect CIL. The UDHR was adopted as “a 

common standard of achievement for all peoples and nations.” 

2. The Human Rights Committee (HRC). The HRC was established by the ICCPR 

as a committee of independent human rights experts who oversee 

implementation of the treaty. In this role, the HRC reviews the periodic reports 

submitted by states party to the ICCPR. The HRC may also hear 

“communications” from individuals in states party to the (First) Optional 

Protocol to the ICCPR. The United States, however, is not a party to the 

First Protocol to the ICCPR. 

3. The Human Rights Council. The Human Rights Council is an intergovernmental body within the UN system made up of forty-seven States 

responsible for strengthening the promotion and protection of human rights 

around the globe. The Council was created by the UN General Assembly in 

March of 2006 with the main purpose of addressing situations of human rights 

violations and making recommendations on them. The Human Rights Council 

replaced the UN Commission on Human Rights, another General Assemblycreated body designed to monitor and strengthen international human rights 

practices.48 

C. The European Human Rights System. The European Human Rights System was the 

first regional human rights system and is widely regarded to be the most robust. The 

European System is based on the 1950 European Convention of Human Rights, a 

seminal document that created one of the most powerful human rights bodies in the 

world, the European Court of Human Rights. 

D. The Inter-American Human Rights System. The Inter-American System is based on 

the Organization of the American States (OAS) Charter and the American 

Convention on Human Rights. The OAS Charter created the Inter-American 

Commission on Human Rights. The American Convention on Human Rights, of 

which the United States is not a party, created the Inter-American Court of Human 

Rights. Because the United States is not a party to the American Convention, it is not 

48 G.A. Res. 60/251, U.N. Doc A/Res/60/251 (Apr. 3, 2006). 

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Human Rights 
 

subject to that court’s jurisdiction. However, the United States does respond to the 

comments and criticisms of the Inter-American Commission on Human Rights.49 

E. The African Human Rights System. The African System falls under the African 

Union, which was established in 2001. It is, therefore, the most recent and least 

formed human rights system. The African system is based primarily on the African 

Charter on Human and Peoples’ Rights which entered into force in 1986. The 

Charter created the African Commission on Human and People’s Rights. A later 

protocol created an African Court of Human and People’s Rights, designed to 

complement the work of the Commission. The Court came into being as a treaty 

body in 2004, however, it is still in the development stage. 

49 See e.g., U.S. Additional Response to the Request for Precautionary Measures: Detention of Enemy 

Combatants at Guantanamo Bay, Cuba, (July 15, 2002), available at http://www.state.gov/s/l/38642.htm. 

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Human Rights 
COMPARATIVE LAW
 

I. OBJECTIVES
 

A. Realize the importance of comparative law to an international/operational attorney. 

B. Understand the difference between International Law, Foreign Law, and Comparative 

Law. 

C. Recognize a general approach for researching comparative law. 

D. Gain familiarity with the differences and similarities between the predominant legal 

traditions, as well as their geographical distribution. 

E. Understand the distinction between legal traditions and legal systems. 

II. DEFINING COMPARATIVE LAW 

A. What is “law?” 

1. From Black’s Law Dictionary: 

a. “Law, in its generic sense, is a body of rules of action or conduct 

prescribed by controlling authority, and having binding legal force.” 

b. “That which is laid down, ordained, or established.” 

c. “The ‘law’ of a state is to be found in its statutory and constitutional 

enactments, as interpreted by its courts, and, in absence of statute law, in 

rulings of its courts.” 

d. “With reference to its origin, ‘law’ is derived from judicial precedents, 

from legislation, or from custom.” 

2. Law may mean or embrace: 

a. Body of principles, standards, and rules promulgated by government. 

b. Rule of civil conduct commanding what is right and prohibiting what is 

wrong. 

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c. 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. Statutes or enactments of a legislative body. 

e. Judicial decisions, judgments or decrees. 

f. Long-established local custom which has the force of law. 

g. Administrative agency rules and regulations. 

B. What is the purpose of law? This is a value-laden question with significant 

philosophical disagreement. 

1. One answer is that the purpose of law is to provide a government of: 

a. Security: To protect against anarchy. 

b. Predictability: To allow planning of affairs with confidence in legal 

consequences. 

c. Reason: To provide guarantees against official arbitrariness. 

2. Some comparative law scholars refer to four “law jobs”: 

a. Social control. 

b. Conflict resolution. 

c. Adaptation and social change. 

d. Norm enforcement. 

C. International law governs relations between two or more States (e.g., UN Charter, 

Geneva Conventions, Hague Regulations). 

D. Foreign law is the domestic law of a foreign State (e.g., the German Civil Code, 

Bürgerliche Besetzbuch). 

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Comparative Law 
E. Comparative law is the study of the similarities and differences between the legal 

approach of two or more legal traditions (e.g., comparison between the common law 

and the civil law approaches to criminal procedure), or between the laws of two or 

more legal systems (e.g., comparison of U.S. criminal code and the German criminal 

code). Comparative law can be at the theoretical or applied level. 

F. Legal Tradition is a much broader concept than a “legal system,” and may be thought 

of as a “legal family.” A legal tradition is a deeply rooted, historically conditioned 

cultural attitude about the nature of law, the role of law in society, and the proper 

organization of a legal system. 

1. Generally, there are seven or eight major legal traditions/families (Common 

Law, Civil Law, Tribal/customary, Talmudic, Hindu, Islamic, Asian, Socialist). 

Some scholars would remove the Socialist tradition from the grouping, and 

others would add groups such as the Scandinavian Tradition. 

2. Common Law tradition is located in England, the U.S., Canada, Australia, 

South Africa, and New Zealand. 

3. Civil Law traditions are primarily located in Europe and Latin America. 

4. The Muslim or Islamic Law Tradition is prevalent throughout the Middle East, 

Northern Africa, Southeast Asia, and portions of the Pacific. 

5. Many countries are a mix of traditions. 

6. Even within a legal tradition, there may be much variance between legal 

systems (e.g., prevalence of jury trials in U.S. versus U.K.). 

G. Legal System is an operating set of legal institutions, procedures, and rules. Thus, 

there are as many legal systems as there are sovereign States in the world. 

H. Theoretical Level of comparative law: how and why certain legal systems are 

different or alike (e.g., why does the U.S. Constitution focus on freedom of speech, 

whereas the premier right in the German “Basic Law” is the inviolability of dignity?). 

I. Applied Level of comparative law: how a specific problem can best be solved under 

the given social and economic circumstances; much richer variety of ideas “than 

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Comparative Law 
 

could be thought up in a lifetime by even the most imaginative jurist who was 

corralled in his own system.”1 

1. How positive law should be altered. 

2. How a perceived gap should be filled. 

3. What rules should be adopted in an international uniform law. 

III. HISTORICAL BACKGROUND AND RELEVANCE OF COMPARATIVE LAW 

A. Historical Background of Comparative Law. 

1. 18th and 19th Centuries. Rise of sovereignty and the influence of legal 

positivism; beginning of learned societies for cross-national legal studies and/or 

comparative law in France, Germany, and England. 

2. 1900 – World Exhibition in Paris. Two French Scholars (Edouard Lambert and 

Raymond Saleilles) organized the 1st International Congress for Comparative 

Law, with goal of “A Common Law for All Mankind.” 

3. 20th Century. Focus on Common Law vs. Civil Law. Comparative Law viewed 

as a tool for Private International Law (international business and commerce). 

4. 21st Century. Focus shifted to other Legal Traditions. Comparative Law 

applied to Public International Law, and viewed as useful in cross cultural 

understanding and diplomacy. 

B. Relevance of Comparative Law. The modern view is that Comparative Law is useful 

in cross-cultural understanding and diplomacy (e.g., as an aid to negotiating more 

meaningful international agreements). 

1. For the military international/operational law judge advocate, a comparative law 

study is a key component of pre-deployment preparation. Not only should the 

judge advocate have a basic understanding of a host nation’s legal tradition and 

system to properly advise a commander on planned operations, but in the event 

that “Rule of Law” and counterinsurgency operations are planned, then a 

comparative law study is critical. 

1

 Conrad Zweigert and Hein Koetz, Introduction to Comparative Law 15 (3rd ed., 1998). 

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Comparative Law 
a. “Rule of Law pertains to the fair, competent, and efficient application and 

fair and effective enforcement of the civil and criminal laws of a society 

through impartial legal institutions and competent police and corrections 

systems. This functional area includes judge advocates trained in 

international law as well as CA specialists in related subjects.” FM 3­

05.40, para. 2-8. 

b. “When insurgents are seen as criminals, they lose public support. Using a 

legal system established in line with local culture and practices to deal 

with such criminals enhances the Host Nation government’s legitimacy. 

Soldiers and Marines help establish Host Nation institutions that sustain 

that legal regime, including police forces, court systems, and penal 

facilities.” FM 3-24, MCWP 3-33.5, Counterinsurgency, para. 1-131. 

c. Some judge advocate activities in furtherance of Rule of Law operations 

will include: 

i. Determine capabilities of the host nation legal system. 

ii. Review the host nation laws and legal traditions. 

iii.	 Advise and assist the host nation development of law consistent with 

international standards. 

iv. Evaluate the host nation judicial infrastructure. 

v. Mentor the host nation judges, magistrates, prosecutors, defense 

counsel, legal advisors and court administrators. 

d. From a moral perspective, it is problematic for a State to impose a legal 

system that does not reflect its society’s values. From a practical 

perspective, the failure of a legal system to become internalized can 

devastate the official legal infrastructure either because of constant 

resistance or by requiring the State to rely on its coercive power to resolve 

more legal disputes than it has the capacity to handle. 

e. Formalist v. Substantive conceptions of the “Rule of Law.” 

i. Formalist: Focused on the procedures for making and enforcing law 

and the structure of the nation’s legal system. 

ii. Substantive: Focused on the content of the law and protecting certain 

rights. 

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Comparative Law 
iii.	 The distinction between “formalist” and “substantive” is a matter of 

emphasis and priority. Formalist goals are less likely to result in 

controversy and less likely to threaten the cultural identity. 

2. Comparative Law is also important at the international level; for example at the 

International Court of Justice, which is the judicial organ of the United Nations. 

a. Article 38 of the Statute of the ICJ provides a hierarchy of law which the 

Court should apply to resolve disputes. The Court shall apply: (a) 

international conventions establishing rules expressly recognized by the 

contesting states [i.e., treaties]; (b) international custom, as evidence of a 

general practice accepted as law [i.e., customary international law]; (c) the 

general principles of law, recognized by civilized nations [i.e., as 

determined through comparative law studies]; (d) judicial decisions 

and teachings of most highly qualified publicists of various nations, as 

subsidiary means for determination of rules of law. 

b. Article 38 of the Statute of the ICJ is a useful starting point for 

understanding the relative hierarchy within international law, as well as 

recognizing the role that comparative law plays in determining what 

exactly are “the general principles of law, recognized by civilized 

nations.” 

IV. COMPARATIVE METHODOLOGY 

A. Comparative Law framework: 

1. Is it a “social science” or a separate body of knowledge? 

a. Scholars appear to be arguing over whether the data obtained should be 

regarded simply as part of the method, or whether they should be regarded 

as a separate body of knowledge. 

b. Really the term “comparative law” can be used to include both the method 

and the data resulting from its application. 

2. Macro-comparison v. micro-comparison. Two different species of comparative 

study. There is no one single method applicable. 

a. Macro-comparison refers to the study of two or more ENTIRE legal 

systems. 

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Comparative Law 
b. Micro-comparison refers to the study of topics or aspects of two or more 

legal systems. 

3. The academic aims of Comparative Law include: 

a. Aiding and informing the legislative process and law reform. 

b. Understanding the application of foreign law in the courts. 

c. Contributing to the unification and harmonization of laws. 

B. Comparative Law Methodology and Research Strategy. 

1. Identify the problem and state it precisely. The framing of the particular issue is 

crucial. What is the problem or issue? What is the goal or objective? What 

should be compared? 

2. Identify the relevant jurisdictions/legal systems (which may be based on the 

availability of research materials). 

3. Identify the foreign jurisdiction’s parent legal family using sources, mode of 

legal thought, and ideology. Note if it happens to be a “hybrid” system or a 

system predominantly based on a religious faith. 

4. Find, gather, and organize primary and secondary sources of law and other 

materials. 

a. Should give equal attention to historical influence and socio-economic 

factors. 

b. Think about hierarchy of sources. Can use law codes, case law, law 

reports, law and socio-legal journals, and legal periodicals. Also think 

about using introductory works, and then go to their bibliographies. 

c. Mandatory Authority: treaties, UN Security Council Resolutions, 

constitutions, statutes, regulations, etc. 

d. Persuasive Authority (“Soft Law”): UN General Assembly Resolutions, 

UN Committee comments/recommendations, Agency 

Guidelines/Manuals, etc. 

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Comparative Law 
e. Helpful Secondary Resources: Encyclopedias, Research Guides, 

Yearbooks, etc., which are comparative law texts on specific topics (e.g., 

comparative criminal law). [Note: A comparative law researcher may 

want to start with these first to learn the primary sources.] 

i. Encyclopedias. 

A. Encyclopedia of Public International Law. 

B. International Encyclopedia of Laws (comparative): 

http://www.cer-leuven.be/cerleuven/iel/outlines/outlcrim.htm 

and http://www.cer-leuven.be/cerleuven/iel/published.htm. 

ii. Research Guides. 

A. Foreign Law: Current Sources of Codes and Basic Legislation 

in Jurisdictions of the World 

http://www.foreignlawguide.com/login.htm. 

B. CIA World Factbook: 

https://www.cia.gov/library/publications/the-world-factbook/ 

C. Defense Language Institute resources (Note: contains both 

linguistic and extensive cultural information): 

http://www.lingnet.org/default.asp 

iii. Yearbooks. 

A. Yearbook of the United Nations. 

B. Digest of U.S. Practice in International Law: 

http://www.state.gov/s/l/6151.htm. 

C. SIPRI Yearbook: Armaments, Disarmament and International 

Security. 

5. Determine similarities and differences. Compare the different approaches, 

bearing in mind cultural differences and socio-economic factors. 

a. Ask how does the rule/institution really operate in practice? 

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Comparative Law 
b. Are the reasons historical, pragmatic, or cultural? Are they based on 

religious beliefs, economic practices or certain trade practices, etc? 

6. Explain similarities and differences. Includes an analysis of the rationale 

behind the system’s approach to resolving the legal issues being studied. 

Analyze the legal principles in terms of their intrinsic meaning rather than 

according to any Western standards. 

a. Historical Background. Consider the cultural rather than the literal 

meaning of terms/phrases/concepts. 

b. Jurisprudential Basis. What purpose does the rule fulfill? What principle, 

if any, does it support or apply? What practical effects might it have on 

the parties involved? 

c. Evolutive (i.e., evolution of legal approaches). 

7. Evaluate the results. What are the key cases and legislation? What does the 

future development of this area of law hold for the jurisdiction? 

a. The comparatist is NOT seeking to be judgmental about legal systems in 

the sense of whether he or she believes them to be “better” or “worse” 

than any other given system. Rather, the comparatist is seeking to 

evaluate the efficacy of a given solution or approach to a legal problem in 

terms of that particular jurisdiction’s cultural, economic, political and 

legal background. 

b. Given a set of priorities, the task is to assess the effectiveness of a solution 

in terms of achieving those aims and objectives. 

C. Comparative Law Pitfalls and Perils. 

1. Pitfall/Peril #1: Cultural differences between legal systems. 

a. The same legal ideas and institutions crop up in many different and 

diverse jurisdictions. 

b. Law can survive without any close connection to any particular people, 

period, or place (e.g., Roman law survived, despite radical change in 

circumstances; Civil law tradition subsists in countries as culturally and 

geographically diverse as Germany and Paraguay). 

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Comparative Law 
c. But – every legal system is the product of its history and, very often, its 

political fortunes. 

d. You have to look at the “values and attitudes” which bind the system 

together and which determine the place of the legal system in the culture 

of the society as a whole. 

i. What kind of training and habits do lawyers and judges have? 

ii. What do people think of law? 

iii.	 Do groups or individuals willingly go in to court? 

iv. For what purposes do people turn to lawyers? 

v. For what purpose do people make use of intermediaries? 

vi. Is there respect for law, government, and tradition? 

vii. What is the relationship between class structure and the use or nonuse of legal institutions? 

viii.	 What informal social controls exist in addition to or in place of 

formal ones? 

ix. Who prefers which kinds of controls and why? 

e. Note: The study of Asian law, Islamic law, or Hindu law is probably going 

to require greater cultural attuning from U.S. military judge advocates than 

studying French or German law. 

2. Pitfall/Peril #2: The tendency to impose one’s own (native) legal conceptions 

and expectations on the system(s) being compared. 

a. When studying non-Western legal systems and cultures, Westerners must 

not approach or appraise these systems from their own Western 

viewpoints or judge them by European or American standards. 

i. For example, some Western lawyers concluded in the 1970’s that 

China had no legal system because it had no attorneys in the 

American or European sense, no independent judiciary, no codes, 

and no system of legal education. But that is like the Western visitor 

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Comparative Law 
who assumed that there was no “proper” music played in China 

because he did not see Western instruments in the Chinese concert 

hall he visited. 

ii. Had the scholars in the 70’s looked for “functional equivalents of 

legal terms and concepts” and asked by which institutions and which 

methods are the four “law jobs” being performed, they would have 

concluded that there is a Chinese legal system, albeit a unique 

system that didn’t fit into Western conceptions of law or legal 

systems. 

3. Pitfall/Peril #3: The difficulties of “comparability.” The military judge 

advocate needs to be sensitive to the fact that it is difficult to “compare” legal 

systems that are at different points in their evolution. Without a baseline of 

similarities there can be misunderstandings. 

4. Pitfall/Peril #4: The desire to see a common legal pattern in legal systems. 

a. Do NOT assume that there has been a general or similar pattern of legal 

development. 

b. Such an assumption may obscure the discovery of the actual development 

of the legal system being studied. 

5. Pitfall/Peril #5: Danger of exclusion and ignorance of extra-legal rules. 

a. Do not ignore informal customs and practices which operate outside strict 

law. 

b. Do not ignore various non-legal phenomena which ultimately influence 

the state of the law. Obviously this includes revolutions, coup d’états, and 

wars, but also, radical devaluations of currency, radical changes in 

government economic and legal policy, widespread unemployment, 

technological change, nationalistic fervor, and the gaining of 

independence. 

c. Historical events in education, industry, and commerce. 

d. The signing of international treaties that result in the integration of laws 

that unite the particular system with others, with the inevitable effects on 

legislation, case law, and even the everyday practice of law (e.g., 

European Union law). 

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Comparative Law 
6. Pitfall/Peril #6: Linguistic and terminological problems. 

a. The greatest difficulty and danger of comparative law. 

b. Physicians, chemists, mathematicians, and musicians have a common 

vocabulary...but legal terminology is fraught with linguistic traps and 

potential minefields of misunderstanding. 

c. Even in English speaking countries, the same word or phrase may have 

different meanings. A legal example in the common law system is stare 

decisis (“let the decision stand”). American and English systems each 

have adopted this doctrine of precedent. But in America it has never 

acquired the formalistic authority that it has in England. This is due to our 

differences in judicial and political structure and hierarchy, the great 

volume of decisions in America, the conflicting precedents in different 

jurisdictions, etc. 

d. There are even more difficulties in translating “alien” legal concepts, since 

an authentic translation often demands more than mere linguistic accuracy. 

For a translation of a legal term to be meaningful, intimate knowledge is 

required both of the system being translated as well as of the native 

system. 

V. COMMON LAW TRADITION 

A. Common Law has its origins only in 1066 with the Battle of Hastings and subsequent 

Norman Conquest. 

B. Common Law characteristics. 

1. Law created and molded by judges: Although legislation is binding, until it has 

been judicially interpreted, laws are sometimes believed to lack the authority 

which arises with judicial sanctification. Legislation gains greater respect, and 

perhaps authority, when judicially interpreted. 

2. Authority to find legislation invalid or interpret legislation. 

3. Lengthy, multiple judicial opinions, many of which are published. 

4. Gradual development/”gap-filling” of the law: judicial view that no system 

possesses a written law governing all conceivable disputes, therefore judges 

must fill the gaps by creating new law. 

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C. Sources of Law. 

1. Legislation is paramount, but judicial precedent is fabric of common law. 

2. Hierarchy of courts, with lengthy published opinions. 

a. But “holding of case” vs. “mere obiter dicta.” 

b. Distinguishing precedent that otherwise seems on point. 

3. Judicial Independence (some lifetime tenure). 

4. Goals: certainty, but also flexibility. 

5. Criminal and Civil Trials, including jury trials (typical in U.S., not in England). 

VI. CIVIL LAW TRADITION 

A. Background: predominant system worldwide. 

1. Spread throughout Western Europe via continental universities as an academic 

system of law. 

2. Spread throughout Central and South America, and parts of Asia and Africa, 

due to colonialism. 

a. The French codification occurred at the beginning of the industrial 

revolution, and the German codification towards the end. Both occurred 

during the era of colonialism, and contributed to the imposition of the civil 

law tradition throughout much of the world. As a result, not only are there 

a significant number of civil law systems in the world, there are an 

extremely large number of mixed systems that have components of the 

civil law tradition. 

b. As a percentage of the world population, civil law systems apply to four 

times more people than common law systems, and twice as many States 

(88 Civil Law vs. 42 Common Law States). 

B. History. 

1. Origins in the Law of the Roman Empire with publication of the XII Tables of 

Rome in 450 B.C.. 

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2. In approximately 534 A.D., Emperor Justinian sought to rescue Roman law 

from centuries of deterioration by codifying and simplifying what had grown 

into an enormous and unwieldy body of law filled with conflict. Emperor 

Justinian ordered the preparation of Corpus Juris Civilis (CJC), which was a 

compilation of the multitude of treatises and commentaries. Once the CJC was 

compiled, Emperor Justinian sought to abolish all prior law except that included 

in CJC; he forbade study of the earlier works and even went so far as having 

many earlier treatises burned. 

3. Roman Law was carried into all corners of the Roman Empire, but it was an 

imposed system and did not take root in most of 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 10th Century. 

5. Commercial Law, developed by Merchant Guilds and Trade Associations: As 

Europe settled politically, renewed travel and commerce helped foster a desire 

for predictability and efficient methods of dispute resolution. Scholars began to 

look once again at the CJC. A need arose for a body of law to govern business 

transactions which the ancient Roman laws did not address well. Merchant 

guilds and trade associations developed their own rules and tribunals. These 

procedures became widely practiced and accepted and were deemed “customary 

law.” 

6. 10th Century Revival of Roman Law: With the continued rise of the nation-state 

in Europe and the re-emergence and spread of Roman Law throughout Europe’s 

centers of learning, Roman Law once again took root, but added elements from 

Canon and Commercial Law. Legal Scholars, such as St. Thomas Aquinas in 

the 13th Century, wrote treatises and commentaries that were widely circulated 

and studied. As the influence of the reemerging law took effect, with allowance 

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for some local or customary augmentation, the concept of “Jus Commune”2 was 

born. 

C. Competing Modern Traditions: 

1. The French Revolutionary Tradition: as a result of the French Revolution and 

Napoleonic Rule, the French Tradition was codified and established in the 

French Civil Code of 1804. 

a. The characteristics of this codification were recognition of a “Separation 

of Powers,” “Natural Rights,” and “Glorification of the State.” 

b. The code rejected feudalism and claimed the areas of property, contract, 

and family law for the citizen. 

c. The Code was designed to be understandable by the average citizen. 

2. The German Scientific Tradition: The German Civil Code of 1896 was based 

on a scientific reconstruction of the legal system. 

a. The underlying thought to the German system was that by studying legal 

scholars in their historical context, a set of historically verified and 

essential principles could be discovered. That is, legal scientists can 

discover inherent principles and relationships just as the physical scientist 

discovers natural laws from the study of physical data. 

b. The Code was prepared for those trained in the law, and thus was 

responsive to the needs of lawyers, not the average citizen. 

c. Similar to the French, the German system retained a sharp separation of 

powers. 

d. The German Civil Law system is distinguished from the French System, 

due to customary influences on the early German legal scholars who 

wanted to integrate local custom into the Roman “Jus Commune.” 

D. Civil Law Jurisdictions in General. 

1. Secular in nature (post-1789). 

2

 That is, the common law (commune jus) of all mankind. 

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a. Law no longer considered of divine origin. 

b. Ultimate lawmaking power lay in the State. 

c. Heavily influenced by 19th Century Liberalism. 

i. Individual autonomy. 

ii. Freedom of contract. 

iii.	 Respect for private property. 

2. Supremacy of the State. 

a. Only statutes enacted by the legislature are law. 

b. Books and articles written by scholars have a central place in legal 

traditions 

i. Trace importance back to Roman juris consuls 

ii. Germany used to send difficult legal issues to law school faculties 

for discussion, debate, and ultimate decision 

iii.	 Contrast with Common Law States. 

A. Common Law: Know the names and writings of great jurists 

from the past 

B. Civil Law: Know the names and writings of great legal 

scholars of the past 

3. Elements of the Law. 

a. Statutes enacted by a legislature. Five Basic Codes typically found in civil 

law jurisdictions 

i. Civil Code. 

ii. Commercial Code. 

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iii.	 Code of Civil Procedure. 

iv. Penal Code. 

v. Code of Criminal Procedure. 

b. Legislation promulgated by the executive, by authority delegated from the 

legislature. 

c. Custom. 

4. Role of the Judge. 

a. Apply the law. 

b. Traditionally no judicial review of acts of the legislature. However, there 

is a new trend toward Constitutionalism. 

i. Created special constitutional courts. Not part of the judicial system. 

Couldn’t give judges authority to overrule the legislature 

ii.	 France: Constitutional Council 

c. Judges viewed as functionaries, civil servants, and “Expert clerks”: 

Presented with a fact pattern; couple it with the appropriate legislative 

provision. 

5. The Role of Lawyers. 

a. Judge. 

b. Public Prosecutor. 

i. Prosecutor in criminal actions. 

ii.	 Represent public interest in judicial proceedings between private 

individuals. 

c. Government lawyer. 

d. Advocate. 

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e. Notary. 

i. Drafts legal instruments (wills, corporate charters). 

ii. Authenticates instruments. 

iii.	 Public records repository. 

f. Law-professor/Scholar. Common law is the law of judges; but civil law is 

the law of the professors. 

6. Interpretation of Statutes. 

a. Theoretically: legislature only. 

b. French system: 

i. Created a new governmental body. 

ii.	 Not a part of the judiciary. 

iii. Power to quash incorrect interpretations by the courts. 

iv. Maintained separation of powers. 

A. Delegated authority from legislature. 

B. Upholds legislative supremacy. 

v. Evolved into a Supreme Court. 

A. Supreme Court of Cassation. 

B. Quash and “instruct” lower courts. Reviews issues of law only, 

not issues of fact. 

c. Interpretation of Unclear Provisions. “In interpreting the statute, no other 

meaning can be attributed to it than that made clear by the actual 

significance of the words according to the connections between them, and 

by the intention of the legislature.” 

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d. Civil Law interpretation in the absence of specific law: “If a controversy 

cannot be decided by a precise provision, consideration is given to 

provisions that regulate similar cases or analogous matters; if the case still 

remains in doubt, it is decided according to general principles of the legal 

order to the state.” 

7. Legal Classifications. 

a. Public law. 

b. Private law. 

i. Civil Law. Persons, the family, inheritance, property, and 

obligations. 

ii. Commercial Law. In many Civil Law jurisdictions, commercial law 

has remained its own distinct legal system. 

8. Jurisdiction of Civil Law Courts. 

a. “Ordinary” courts. 

b. Commercial courts. 

c. Administrative Courts (e.g., Council of State (France)). 

9. Civil Procedure. 

a. Trial. Isolated hearings dominated by written communications. 

b. Hearing judge vs. Adjudicator. 

c. Attorney’s fees based on an official schedule. 

d. Appeal. 

e. Decisions. 

10. Criminal Procedure. 

a. Typically three phases: 

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i. Investigative, which the public prosecutor directs. 

ii. Examining. 

A. Controlled by the examining judge. 

B. Primarily written record, prepared by the examining judge. 

C. Not public. 

D. Examining judge determines: 

1. Crime committed? 

2. Accused is perpetrator? If yes, trial. 

iii. Trial. 

A. Presumption of Innocence. 

B. Jury Trial. 

1. Range of offenses depends on the code. 

2. Size. 

3. Unanimity. 

VII. TRIBAL OR CUSTOMARY TRADITION 

A. The Tribal or Customary legal tradition is a relatively new concept, although it 

describes the oldest of legal traditions. Interestingly, in spite of a multitude of 

geographic and cultural variables, it is within the customary tradition that scholars 

have found the most constants. 

1. Indigenous systems. All of the legal traditions have their roots in various 

customary systems, and were influenced by them. 

2. Modern View: still influential on legal systems in many areas of the world, 

including many of our modern concepts; typically found in family and property 

law. 

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3. Systems which are largely customary in nature are still active in almost every 

part of the world. Representative systems can be found throughout the South 

Pacific, Asia, Africa, Australia, and even in the United States on Native 

American Reservations—although it must be conceded that they are not purely 

customary. In fact, it is very difficult to find a pure customary legal system 

today. 

B. Characteristics: 

1. Oral (vs. written) tradition. 

2. Legal system is seen as an integral to “way of life” rather than a distinct system. 

3. Council of Elders / Advisors, whose function is to interpret and decide issues 

within the legal system, even if the group has a Chief or King. 

4. Tendency to informal dispute resolution, even in criminal cases, and decision is 

based on the best interests of the community. 

5. Family law characterized by mutual consent and informality. 

6. Lacking law of obligation (e.g., no contracts or torts), when issues arise, they 

are dealt with relatively informally by the community or council of elders. 

7. Property Law: the basic ideas are to keep large families together since many 

members were necessary for the many tasks of daily life, and concepts of 

property look more towards communal use rather than individual ownership. 

Customary concepts of property are getting a fresh look as models for 

environmental laws and regulations in more modern traditions and systems. 

VIII. TALMUDIC TRADITION 

A. Talmudic Law is one of the oldest remaining legal traditions (along with the Hindu 

Tradition). 

1. Written Torah: revelations given to Moses, which were recorded as the first 

five books (Genesis, Exodus, Leviticus, Numbers, and Deuteronomy) of the 

Hebrew Bible, approximately 1400 B.C.. 

a. There is an all encompassing concept of “Torah” or revelation that 

contributes to Talmudic Law. 

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b. The “Written Torah” generated comment and explanation, and the oral 

tradition of commentary became an expansion on the Torah called the 

“Oral Torah.” 

2. Mishnah: Oral Torah, approximately 70 B.C. through 200 A.D.. 

a. Oral tradition which generated a written record compiled over time. 

b. The Mishnah itself generated comment, and this second set of expositions 

was recorded on two occasions in the Jerusalem and Babylonian Talmuds. 

3. Jerusalem Talmud: approximately 400–500 A.D.. 

4. Babylonian Talmud: approximately 600–700 A.D.. 

5. There are some additional portions of the Talmud found in the Tosefta and 

Midrashe Halakhah as well. Consider that at the time of the writing of the two 

Talmud, almost two millennia of legal commentary had passed. 

6. Commentaries and Restatements: During the middle ages, commentaries 

continued to be promulgated, most notably that of Maimonides (a.k.a. Rabbi 

Moses Ben Maimon) which is still considered one of the most influential. 

a. Maimonides (12th Century) was a scholar, physician, and philosopher 

whose works (legal, religious, medical, and scientific) were influential 

throughout the Jewish and Arab communities as well as on later European 

culture and traditions as well. For example, Maimonides had a great 

influence on St. Thomas Aquinas. 

b. Responsa: written advice regarding application of Talmudic Law. 

B. Influential on later traditions (e.g., Greek, Roman and Islamic). 

C. General sense of obligation to God and to act towards others in accordance with 

God’s will. 

IX. HINDU TRADITION 

A. One of the oldest remaining legal traditions. Hinduism is also a religion, a way of 

life, which includes much outside of the law (e.g., how to engage in politics). 

1. Four books of Veda (= to see), approximately 2000 B.C.. 

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Comparative Law 
a. Revelations essential to Hindu way of life. 

b. Brahmans taught Vedas from memory, using Sutras, which were chains of 

verbal maxims. 

2. Sastras = texts/poetry, including law and religious observance (200 B.C. – 400 

A.D.). 

3. Commentaries and Digests (700 - 1700 A.D.). 

B. Private/religious works of law without judicial or legislative foundation, applicable to 

all Hindus worldwide (e.g., India, Pakistan, Burma, Singapore, Malaysia, Tanzania, 

Uganda, and Kenya). 

1. Complex, hierarchical structure of appeals. 

2. Much Hindu teaching outside law books about how to live a life, e.g., politics 

(arthasutras/arthasastras) and pleasure (kamasutras/kamasastras). 

C. Dharma infuses Hindu law. 

1. Dharma = specific, individual sense of obligation to society, to do what is just 

and what is right (righteousness); it also assigns us a place in life (Varna = 

caste) and specific obligations in course of living that life. 

a. The word dharma (Sanskrit; "धम" in the Devanagari script) or र् dhamma

(Pali) is used in most or all philosophies and religions of Indian origin, 

Dharmic faiths, namely Hinduism (Sanatana Dharma), Buddhism, 

Jainism, and Sikhism. It occurs first in the Vedas, in its oldest form as 

dharman. It is difficult to provide a single concise definition for 

“Dharma”; the word has a complex history and an equivalently complex 

set of meanings. 

2. One’s Dharma and caste are dictated by one’s past Karma (good or bad, 

including past lives). 

a. In law, there is no 5th class of untouchables, though popular conceptions of 

untouchables translate into Sudras. 

b. With the passage of time, caste acquired significance as indicative of 

social status arising by virtue of birth only. 

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c. The current Indian Constitution prohibits discrimination on the basis of 

caste, which are made up of Brahmans (teachers), Kshatriya (warriors), 

Vaishyas (traders), and Sudras (servants). 

3. Failure to comply with Dharma results in accumulating bad Karma, which must 

be repaid in future lives (e.g., lower caste). 

X. ISLAMIC TRADITION 

A. Background. 

1. Roots in pre-Islamic Arab society. 

2. Goal was not to establish a new legal order, but to teach people what to do in 

life. 

B. Definitions. 

1. Islam: “Submission or surrender to Allah’s will.” 

2. Qadi: Islamic Judge. 

3. Sharia: “The path to follow God’s Law.” 

4. Fiqh: The science of understanding and interpreting legal rulings (Islamic 

jurisprudence). 

C. General Principles. 

1. No separation of church and State. 

2. Most Muslim States have a bifurcated legal system: 

a. Civil laws applicable to Muslims and non-Muslims. 

b. Sharia applicable to Muslims only. 

D. The role of Judges. 

1. For serious crimes, there are distinct punishments. 

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2. For less serious crimes, judges are free to create new options and ideas to 

address the issue 

3. Not bound by precedent and rules inherent in the Common Law system. More 

freedom/latitude than Civil Law judges. 

E. Sharia Law. 

1. Holistic approach to guide the individual in most daily matters. 

2. Controls all public and private behavior including personal hygiene, diet, sexual 

conduct, child rearing, prayers, fasting, charity, and other religious matters. 

3. Elements of Sharia Law. 

a. The Qur’an. Primary source. No appeal. 

b. Sunna. 

i. Teachings of the Prophet Mohammed not explicitly found in the 

Qur’an. 

ii.	 Sunna is recorded in the hadith. 

iii.	 Isnad is the chain of reporters who produced the hadith. 

c. Ijma. Consensus of religious scholars (Ulamas) on subjects not found 

explicitly in the Qur’an or the Sunna. 

d. Qiyas. New cases or case law (application by analogy). 

e. Other written works. 

i. The New Testament. 

ii. Legal discourses from Civil and Common Law jurisdictions. 

4. Classification of Hadith. 

a. According to the reference to a particular authority 

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b. According to the links of Isnad—interrupted or uninterrupted. 

c. According to the number of reporters involved in each stage of Isnad. 

d. According to the nature of the text and Isnad. 

e. Overall Classifications of Hadith: 

i. Sahih: Sound. One cannot question the rulings of the Qur’an and 

sahih hadith 

ii. Hasan: Good. The source is known and its reporters are 

unambiguous. 

iii.	 Da’if: Weak. Not to the level of hasan, usually because of a 

discontinuity in the Isnad, or one of the reporters is unreliable. 

iv. Maudu’: Fabricated. A hadith whose text goes against the 

established norms of the Prophet’s sayings, or its reporter is a liar. 

5. Crimes. 

a. Hadd Crimes. Crimes against God’s Law, the most serious of all crimes. 

i. Found by an exact reference in The Qur’an. 

A. A Specific act. 

B. A Specific punishment. 

ii. No plea bargaining. 

iii. No reduced punishment. 

iv. Examples: (* Specific punishment listed in the Qur’an.). 

A. *Murder. 

B. *Apostasy from Islam. Making war upon Allah and his 

messengers. 

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C. *Theft. 

D. *Adultery. 

E. Defamation. False accusation of Adultery or Fornication. 

F. Robbery. 

G. Alcohol-drinking. 

v. Level of Proof: Confession, or a minimum of two witnesses. 

vi. If any doubt; treat as a Ta’zir crime. 

vii. Mitigation. 

b. Ta’zir Crimes. 

i. Crimes against society. 

ii. Ta’zir crimes can be punished if they harm the societal interest. 

iii.	 The assumption is that a greater “evil” will be prevented in the future 

if you punish the offender now. 

iv. Historically not written down or codified; now set by parliament in 

some countries (Egypt). 

v. Absent codification, judges are free to choose punishment they think 

will help the offender. 

vi. Examples of crimes: 

A. Bribery. 

B. Selling defective products. 

C. Treason. 

D. Usury. 

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E. Selling pornography. 

vii. Examples of punishments: 

A. Counseling. 

B. Fines. 

C. Public or private censure. 

D. Seizure of property. 

E. Confinement. 

F. Flogging. 

c. Qisas Crimes. 

i. A crime of retaliation. 

ii.	 Victim (or victim’s family) has a right to seek retribution or 

retaliation. 

iii.	 Examples of crimes: 

A. Murder (Premeditated and non-premeditated). 

B. Premeditated offense against human life, short of murder. 

C. Murder by error. 

D. Offenses by error against humanity, short of murder. 

iv. Punishments. Sought, in most cases, by the victims family 

A. Diya (Blood money). 

B. Public execution 

1. Traditionally carried out by the victim’s family. 

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2. Now carried out by the government. 

C. Pardon. 

6. Criminal Cases. 

a. Although all ostensibly are based on the Qur’an, handling of cases can 

vary between different schools of thought. 

b. Sunni Legal Schools: 

i. Hanafi. 

A. The oldest school of law. 

B. Founded in Iraq around 767. 

C. The most flexible of the four schools. 

D. Heavy emphasis on analogy. 

E. Turkey, Afghanistan, India, and China. 

ii. Maliki. 

A. Founded in Medina around 795. 

B. Emphasis on the relevance and authority of traditions of the 

Prophet and first Muslim community at Medina. 

C. Incorporated local customs and traditions into Sharia. 

D. North Africa, Upper Egypt, and the Sudan. 

iii. Shafi’i. 

A. Founded around 810. 

B. Apply prophetic traditions; yet apply a rigorous rational 

criticism to them. 

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1. Verify every link in the chain of transmission. 

2. Closely scrutinize the transmitters/reporters. 

C. Lower Egypt, southern India, Indonesia, and Malaysia. 

iv. Hanbali. 

A. Strictly the Qur’an and verifiable tradition of the Prophet. 

B. Rejected both reason and community consensus as the bases 

for legal rulings. 

C. Saudi Arabia (Wahhabis). 

XI. ASIAN TRADITION 

A. Overview. 

1. Asia has historically included other legal traditions (customary, Talmudic, 

Islamic, Hindu), and is now picking and choosing from civil and common law 

sources. 

2. Some authors claim the Asian Tradition to be a misnomer today, due to 

influence of colonization and modernization.3 

a. Common Law (UK colonies): India, Malaysia, Singapore, and Brunei. 

b. Civil Law (French and Dutch colonies): Indochina (Burma, Cambodia, 

Laos, Malaysia, Vietnam), and Indonesia. 

c. Other Asian States chose to adopt systems based on Civil Law: China, 

Japan, and Thailand. 

d. U.S. law also had influence on Philippines and Japan, due to pre- and postWorld War II occupation. 

3

 Margaret Fordham, Comparative Legal Traditions – Introducing the Common Law to Civil Lawyers in 

Asia (2006); H. Patrick Glenn, Legal Traditions of the World 304, 306 (2000). 

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B. Characteristics 

1. Confucianism, Buddhism, Shintoism, and Taoism all have dim views of formal 

law. 

2. Important issues regulated more by Persuasive, Informal Traditions, and Social 

Harmony (Li) than by Obligatory, Formal Laws, and Sanctions (Fa). 

3. Fa focuses on penal and administrative law. 

4. Li focuses on everything else (including “non-legal” issues). Belief that 

business relations are best not reduced to writing and should be seen as ongoing, 

harmonious relationships of mutual advantage. For example, an exemplary 

person seeks harmony vs. agreement on immediate detail; a small person does 

the opposite 

5. Emphasis on Informal Dispute Resolution. 

6. Legal Maxims: 

a. “Win a lawsuit and lose a friend.” 

b. “The more laws are promulgated, the greater the number of thieves.” 

c. “Litigation ultimately ends in disaster.” 

XII. SOCIALIST TRADITION 

A. Overview. Very few comparative law texts still refer to the “socialist tradition,” 

which has all but died.4 

B. Fairly recent tradition, that mostly dissolved with disintegration of legal order of the 

former Soviet Union. 

C. Only survives in partial form in communist regimes (Cuba, North Korea, and 

Vietnam). 

D. Public law subsumes traditionally private law fields (e.g., bankruptcy, contracts, 

property, commercial law, torts). 

4

 Id. 

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E. Intense reliance on formal law, enforced by the communist party, e.g., judicial 

decisions of “independent” judges are subject to party control and revision. 

XIII. COMBINED SYSTEMS 

A. Many countries have combined, or mixed, systems. For example, UK has a Common 

Law system, as do its former colonies, including the U.S., Canada, and Australia. But 

the U.S. state of Louisiana is a blend of Civil Law and Common Law, as is the 

Canadian province of Quebec, both due to the influence of French Civil Law. Most 

of Eurasia and Central and South America are Civil Law countries, but Guyana is a 

blend of Common Law and Civil Law due to British rule from 1796 until 1966. 

Much of the rest of the world is a blend of various legal traditions. Almost all of the 

Islamic legal systems are a blend of Islamic and either Civil Law, Common Law, or 

Tribal Law. 

B. Two main categories: 

1. Mixture of civil law and common law systems (e.g., Botswana, Guyana, 

Lesotho, Namibia, the Philippines, Quebec, Scotland, South Africa, Sri Lanka, 

Swaziland, and Zimbabwe. Consider also the European Union). 

2. Mixture of civil law and religious legal systems (Algeria, Egypt, Indonesia, 

Iran, Iraq, and Syria). 

FOR FURTHER READING 

A. WERNER MENSKI, COMPARATIVE LAW IN A GLOBAL CONTEXT: THE LEGAL SYSTEMS 

OF ASIA AND AFRICA (2nd ed., 2006). 

B. H. PATRICK GLENN, LEGAL TRADITIONS OF THE WORLD: SUSTAINABLE DIVERSITY IN 

LAW (2nd ed., 2004). 

C. DANIEL C.K. CHOW, THE LEGAL SYSTEM OF THE PEOPLE’S REPUBLIC OF CHINA 

(2003). 

D. VIVIAN G. CURRAN, COMPARATIVE LAW: AN INTRODUCTION (2002). 

E. STEFAN ALBRECHT A. RIESENFELD, WALTER J. PAKTER, COMPARATIVE LAW 

CASEBOOK (2001). 

F. MARY ANN GLENDON, MICHAEL W. GORDON, AND PAOLO G. CAROZZA,
 

COMPARATIVE LEGAL TRADITION (2nd ed., 1999). 

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G. DALE F. EICKELMAN AND JAMES PISCATORI, MUSLIM POLITICS (1996). 

H. J.H. MERRYMAN, THE CIVIL LAW TRADITION: AN INTRODUCTION TO THE LEGAL 

SYSTEMS OF WESTERN EUROPE AND LATIN AMERICA (2nd ed., 1985). 

I. M. CHERIF BASSIOUNI, THE ISLAMIC CRIMINAL JUSTICE SYSTEM (1982). 

J. CENTER FOR LAW AND MILITARY OPERATIONS, RULE OF LAW HANDBOOK: A 

PRACTITIONER’S GUIDE FOR JUDGE ADVOCATES, latest edition. 

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INDEX
 

. 

.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 Tradition ............................................ 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
 

Defined .............................................................. 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 bombs ........................................................ 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 

Contractors ...................................................... 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 

Frangible ammunition ........................................... 145 

233 

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 Political 

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 

Defined ................................................................ 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 

Lasers .....................................................................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 

234 

Index 
 

Natural environment .............................................. 138 

Neutralized Zones.................................................. 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 

Journalists .......................................................... 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 Organizations ........................................... 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 search 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
 

Suffering Project .............................................. 145 

Superior orders ...................................................... 176 

235 

Comparative Law 
Suspension 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 

Tribal 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 Terrorism ................................................... 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 ................................................ 43 

Treatment .......................................................... 41 

236 

Index